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First Substitute H.B. 326
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7 LONG TITLE
8 General Description:
9 This bill modifies provisions relating to the foreclosure of trust deeds.
10 Highlighted Provisions:
11 This bill:
12 . modifies a provision relating to the filing of a substitution of trustee;
13 . modifies notice of default provisions;
14 . establishes a procedure for deferring a trustee's sale following a notice of default
15 and allowing a lender and borrower to negotiate the terms of the loan if a trustor
16 meets certain requirements, including paying a regular payment each month; and
17 . makes technical changes.
18 Money Appropriated in this Bill:
19 None
20 Other Special Clauses:
21 None
22 Utah Code Sections Affected:
23 AMENDS:
24 57-1-22, as last amended by Laws of Utah 2002, Chapter 209
25 57-1-24, as last amended by Laws of Utah 2001, Chapter 236
26 63I-1-257, as enacted by Laws of Utah 2010, Chapter 66
27 ENACTS:
28 57-1-24.5, Utah Code Annotated 1953
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30 Be it enacted by the Legislature of the state of Utah:
31 Section 1. Section 57-1-22 is amended to read:
32 57-1-22. Successor trustees -- Appointment by beneficiary -- Effect -- Substitution
33 of trustee -- Recording -- Form.
34 (1) (a) The beneficiary may appoint a successor trustee at any time by filing for record
35 in the office of the county recorder of each county in which the trust property or some part of
36 the trust property is situated, a substitution of trustee.
37 (b) The new trustee shall succeed to all the power, duties, authority, and title of the
38 trustee named in the deed of trust and of any successor trustee.
39 (c) The beneficiary may, by express provision in the substitution of trustee, ratify and
40 confirm action taken on the beneficiary's behalf by the new trustee prior to the recording of the
41 substitution of trustee.
42 (2) The substitution shall:
43 (a) identify the trust deed by stating:
44 (i) the names of the original parties to the trust deed;
45 (ii) the date of recordation; and
46 (iii) (A) the book and page where the trust deed is recorded; or
47 (B) the entry number;
48 (b) include the legal description of the trust property;
49 (c) state the name and address of the new trustee; and
50 (d) be executed and acknowledged by all of the beneficiaries under the trust deed or
51 their successors in interest.
52 (3) (a) If not previously recorded[
53 successor trustee shall file for record, in the office of the county recorder of each county in
54 which the trust property or some part of it is situated, the substitution of trustee.
55 (b) A copy of the substitution of trustee shall be sent in the manner provided in
56 Subsection 57-1-26 (2) to any:
57 (i) person who requests a copy of any notice of default or notice of sale under
58 Subsection 57-1-26 (1)(a); and
59 (ii) person who is a party to the trust deed to whom a copy of a notice of default would
60 be required to be mailed by Subsection 57-1-26 (3).
61 (4) A substitution of trustee shall be in substantially the following form:
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64 is hereby appointed successor trustee under the trust deed executed by ____ as
65 trustor, in which ____ is named beneficiary and ____ as trustee, and filed for record
66 __________(month\day\year), and recorded in Book ____, Page ____, Records of ____
67 County, (or filed for record __________(month\day\year), with recorder's entry No. ____, ____
68 County), Utah.
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70 Signature_____________________________
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72 Section 2. Section 57-1-24 is amended to read:
73 57-1-24. Sale of trust property by trustee -- Notice of default.
74 [
75 57-1-21 (1)(a)(i) or (iv) may not [
76 in Section 57-1-23 until after:
77 (1) the trustee [
78 the trust property or some part or parcel of the trust property is situated, a notice of default[
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80 (a) identifies the trust deed by stating the name of the trustor named in the trust deed
81 and giving the book and page, or the recorder's entry number, where the trust deed is recorded
82 and a legal description of the trust property[
83 (b) contains a statement that a breach of an obligation for which the trust property was
84 conveyed as security has occurred, and setting forth the nature of that breach [
85 (c) states the trustee's election to sell the property or cause [
86 be sold to satisfy the obligation; and
87 [
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89 (d) complies with the requirements of Section 57-1-24.5 , if the trust property is
90 owner-occupied property, as defined in Section 57-1-24.5 ; and
91 [
92 sale, as provided in Sections 57-1-25 and 57-1-26 , following the lapse of at least three months
93 from the time the trustee files a notice of default for record under Subsection (1)(a), subject to
94 Section 57-1-24.5 .
95 Section 3. Section 57-1-24.5 is enacted to read:
96 57-1-24.5. Notice to default trustor -- Right to negotiate alternative to foreclosure
97 -- Requirements -- Deferment.
98 (1) As used in this section:
99 (a) "Default trustor" means a trustor under a trust deed secured by owner-occupied
100 property that is the subject of a notice of default under Section 57-1-24 .
101 (b) "Deferment period" means the period of tolling under Subsection (4)(a).
102 (c) "Lender" means a person who is:
103 (i) a beneficiary under a trust deed secured by owner-occupied property that is the
104 subject of a notice of default under Section 57-1-24 ; and
105 (ii) entitled to direct the trustee to sell the property following a default under the loan.
106 (d) "Loan" means the obligation for which a trust deed is given as security.
107 (e) "Owner-occupied property" means real property that is occupied by its owner as the
108 owner's primary residence.
109 (2) (a) No later than 15 days after a trustee files for recording a notice of default under
110 Section 57-1-24 , the trustee shall send a notice to the default trustor by certified mail.
111 (b) A notice under Subsection (2)(a) shall include:
112 (i) the name, address, telephone number, and email address of an individual with
113 authority to:
114 (A) negotiate on behalf of the lender with respect to all aspects of the loan, including
115 regarding foreclosure relief, a loan modification or forebearance, or any other reasonable
116 alternative to foreclosure; and
117 (B) bind the lender to an agreement with the default trustor under terms that differ from
118 the terms of the loan;
119 (ii) the name, address, telephone number, and email address of an individual
120 representing the lender whom the default trustor is required to contact under Subsection (3)(a)
121 to request to negotiate with the lender as provided in this section;
122 (iii) a description of the deferment opportunity under this section and the requirements
123 and procedure for obtaining a deferment;
124 (iv) the date by which the default trustor is required to contact the lender to request to
125 enter into negotiations as provided in this section;
126 (v) the Internet address of the United States Department of Housing and Urban
127 Development web site identifying approved housing counseling agencies in the state; and
128 (vi) provide information regarding the availability of the federal government's Making
129 Home Affordable program and the rights and benefits available to the default trustor under the
130 program.
131 (3) (a) Subject to Subsections (3)(d) and (e), a lender shall make itself available for and
132 cooperate in negotiations with a default trustor regarding the terms of the loan, including
133 regarding foreclosure relief, a loan modification or forebearance, or any other mutually
134 acceptable reasonable alternative to foreclosure, if:
135 (i) within 20 days after the trustee sends notice under Subsection (2), the default trustor
136 contacts the lender to request negotiations regarding the loan;
137 (ii) the default trustor:
138 (A) occupied the trust property as the trustor's primary residence at the time the notice
139 of default was recorded and during the 90-day period immediately before the notice of default
140 was recorded;
141 (B) intends to continue to reside at the trust property; and
142 (C) is personally obligated on the loan; and
143 (iii) the loan:
144 (A) was incurred for primarily personal, family, or household purposes; and
145 (B) is secured by a trust deed on the trust property that is the subject of the notice of
146 default.
147 (b) A default trustor may contact a lender under Subsection (3)(a) by telephone, mail,
148 electronically, or in person.
149 (c) A default trustor is ineligible to request the lender to negotiate regarding the loan or
150 to a deferment as provided in this section if the default trustor:
151 (i) abandons the trust property;
152 (ii) has been discharged within the preceding 12 months in a Chapter 7 bankruptcy in
153 which the trust property was property of the bankruptcy estate;
154 (iii) has been discharged within the preceding 12 months in a Chapter 13 bankruptcy
155 with a modified loan agreement for which the trust property is security; or
156 (iv) previously received a foreclosure deferment under this section with respect to the
157 same loan, including any modification of the loan.
158 (d) In negotiating with the default trustor under this section and determining whether to
159 agree to an alternative to foreclosure, a lender shall:
160 (i) consider the default trustor's household expenses and gross monthly income, the
161 nature of the loan, any written loan modification agreement between the default trustor and the
162 lender that was executed during the preceding 12 months, and any other relevant factors;
163 (ii) apply an analysis that is consistent with the net present value test set out in the
164 Federal Deposit Insurance Corporation Loan Modification Program guidelines, effective
165 October 2008, designed to indicate:
166 (A) what the default trustor is able to pay on a sustainable basis for monthly housing
167 expenses, including principal, interest, taxes, insurance, and any applicable homeowner
168 association dues; and
169 (B) whether the lender would be likely to be paid more from the modification
170 necessary to achieve a monthly payment that the default trustor is able to pay, as determined
171 under Subsection (3)(d)(ii)(A), than the lender would be likely to be paid from a completed
172 foreclosure;
173 (iii) make available to the default trustor the full rights and benefits of the federal
174 government's Making Home Affordable program, to the extent the program applies; and
175 (iv) give reasonable consideration to how long the default trustor has lived at the trust
176 property, the default trustor's payment history over the life of the loan before the default, the
177 circumstances, including any hardship, that led to the default trustor's inability to meet the
178 obligations of the loan, the reasonable likelihood that those circumstances would be
179 substantially improved if the default trustor were given foreclosure relief or a loan
180 modification, and any other equitable factors relevant to the default trustor's circumstances.
181 (e) A lender and default trustor shall participate in and conduct negotiations under this
182 section consistent with the implied covenant of good faith and fair dealing that applies under
183 the loan.
184 (4) (a) The three-month period required to lapse under Section 57-1-24 before a trustee
185 may give notice of sale is tolled from the date that a default trustor contacts the lender under
186 Subsection (3)(a)(i) until 90 days after that date, unless earlier terminated under Subsection
187 (4)(b), if:
188 (i) the default trustor contacts the lender as provided in Subsection (3)(a)(i);
189 (ii) the default trustor meets the criteria of Subsection (3)(a)(ii);
190 (iii) the loan meets the criteria of Subsection (3)(a)(iii);
191 (iv) the default trustor is not ineligible under Subsection (3)(c);
192 (v) within 10 days after contacting the lender as provided in Subsection (3)(a)(i), the
193 default trustor pays to the lender the amount of a regular monthly payment under the loan; and
194 (vi) the default trustor pays to the lender the amount of a regular monthly payment
195 under the loan within each 30-day period following a payment under Subsection (4)(a)(v).
196 (b) A default trustor may make a payment under Subsection (4)(a)(v) or (vi)
197 electronically or by certified funds delivered by a method that provides evidence of the date of
198 payment.
199 (c) A deferment period under Subsection (4)(a) terminates if:
200 (i) the default trustor abandons the trust property;
201 (ii) the default trustor fails to comply with the conditions of foreclosure deferment,
202 including a failure to make a payment as required under Subsection (4)(a)(v) or (vi);
203 (iii) the default trustor conveys, transfers, or further encumbers the trust property in
204 violation of the trust deed;
205 (iv) a person holding another lien on the trust property has initiated foreclosure;
206 (v) the default trustor files for bankruptcy during the deferment period; or
207 (vi) the negotiations between the lender and the default trustor are concluded.
208 (d) A lender's acceptance of a payment under Subsection (4)(a)(v) or (vi) does not
209 constitute a waiver of default or a modification of any amount due on the loan or of any other
210 right the lender has under the loan.
211 Section 4. Section 63I-1-257 is amended to read:
212 63I-1-257. Repeal dates, Title 57.
213 (1) Section 57-1-24.5 is repealed December 31, 2013.
214 (2) Subsections 57-1-25 (1)(c), (3)(b), and (4) are repealed December 31, 2012.
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