CHAPTER 714F FORECLOSURE RECONVEYANCES
714F.1 DEFINITIONS.
714F.2 CONTRACT REQUIREMENT -- FORM AND LANGUAGE.
714F.3 CONTRACT TERMS.
714F.4 CONTRACT CANCELLATION.
714F.5 NOTICE OF CANCELLATION.
714F.6 WAIVER.
714F.7 ARBITRATION PROHIBITED.
714F.8 PROHIBITED PRACTICES.
714F.9 ENFORCEMENT.



        

714F.1 DEFINITIONS. As used in this chapter, unless the context otherwise requires: 1. "Business day" means any calendar day except Saturday, Sunday, or a public holiday including a holiday observed on a Monday. 2. "Foreclosed homeowner" means an owner of residential real property, including a condominium, that is the primary residence of the owner and whose mortgage on the real property is or was in foreclosure, forfeiture, or tax sale. 3. a. "Foreclosure purchaser" means a person that has acted as the acquirer in a foreclosure reconveyance. "Foreclosure purchaser" includes a person that has acted in joint venture or joint enterprise with one or more acquirers in a foreclosure reconveyance. b. "Foreclosure purchaser" does not include any of the following: (1) A natural person who shows that the natural person is not in the business of foreclosure purchasing and has a prior personal relationship with the foreclosed homeowner. (2) A person or entity doing business under any law of this state, or of the United States, relating to banks, trust companies, savings and loan associations, industrial loan and thrift companies, regulated lenders, credit unions, insurance companies, or a mortgagee or mortgage servicer approved by the United States department of housing and urban development or any other nationally recognized government-sponsored enterprise, and any subsidiary or affiliate of such persons or entities, and any agent or employee of such persons or entities while engaged in the business of such persons or entities. 4. "Foreclosure reconveyance" means a transaction involving both of the following: a. The transfer of title to real property by a foreclosed homeowner during a foreclosure, forfeiture, or tax sale, either by transfer of interest from the foreclosed homeowner or by creation of a mortgage or other lien or encumbrance during the process that allows the acquirer to obtain title to the property by redeeming the property as a junior lienholder. b. The subsequent conveyance, or promise of a subsequent conveyance, of an interest back to the foreclosed homeowner by the acquirer or a person acting in participation with the acquirer that allows the foreclosed homeowner to possess either the affected residence or other real property, which interest includes but is not limited to an interest in a contract for deed, purchase agreement, option to purchase, or lease. 5. "Resale" means a bona fide market sale of the property subject to the foreclosure reconveyance by the foreclosure purchaser to an unaffiliated third party. 6. "Resale price" means the gross sale price of the property on resale. 7. "Residence in foreclosure" or "affected residence" means residential real property consisting of one to four family dwelling units, one of which the foreclosed homeowner occupies as the foreclosed homeowner's principal place of residence, where a delinquency or default on any loan payment or debt is secured by or attached to the residential real property, including but not limited to contract for deed payments, real estate contracts, or real estate taxes.

         Section History: Recent Form

         2008 Acts, ch 1125, §10, 19; 2009 Acts, ch 41, §166
         Referred to in § 714E.1
        

714F.2 CONTRACT REQUIREMENT -- FORM AND LANGUAGE. A foreclosure purchaser shall enter into a foreclosure reconveyance in the form of a written contract. The contract must be written in letters of a size equal to at least twelve point boldface type, in the same language principally used by the foreclosure purchaser and foreclosed homeowner to negotiate the sale of the residence in foreclosure, and must be fully completed and signed and dated by the foreclosed homeowner and foreclosure purchaser before the execution of any instrument of conveyance of the residence in foreclosure.

         Section History: Recent Form

         2008 Acts, ch 1125, §11, 19
         Referred to in § 714F.3
        

714F.3 CONTRACT TERMS. 1. A contract required by section 714F.2 must contain the entire agreement of the parties and shall include all the following terms: a. The real name, business address, and the telephone number of the foreclosure purchaser. b. The address of the residence in foreclosure. c. The total consideration to be given by the foreclosure purchaser in connection with or incident to the sale. d. A complete description of the terms of payment or other consideration including but not limited to any services of any nature that the foreclosure purchaser represents the foreclosure purchaser will perform for the foreclosed homeowner before or after the sale. e. The time at which possession is to be transferred to the foreclosure purchaser. f. A complete description of the terms of any related agreement designed to allow the foreclosed homeowner to remain in the home including but not limited to a rental agreement, repurchase agreement, contract for deed, or lease with option to buy. g. A notice of cancellation as provided in section 714F.5. h. The following notice in at least fourteen point boldface type, if the contract is printed or in capital letters if the contract is typed, and completed with the name of the foreclosure purchaser, immediately above the statement required by section 714F.5: NOTICE REQUIRED BY IOWA LAW Until your right to cancel this contract has ended, ........ (name) or anyone working for ........ (name) CANNOT ask you to sign or have you sign any deed or any other document. 2. The contract required by section 714F.2 survives delivery of any instrument of conveyance of the residence in foreclosure, but has no effect on persons other than the parties to the contract.

         Section History: Recent Form

         2008 Acts, ch 1125, §12, 19; 2009 Acts, ch 133, §181
        

714F.4 CONTRACT CANCELLATION. 1. In addition to any other right of recision, the foreclosed homeowner has the right to cancel any contract with a foreclosure purchaser until midnight of the third business day following the day on which the foreclosed homeowner signs a contract that complies with this chapter or until 8:00 a.m. on the last day of the period during which the foreclosed homeowner has a right of redemption, whichever occurs first. 2. Cancellation occurs when the foreclosed homeowner delivers, by any means, written notice of cancellation, provided that, at a minimum, the contract and the notice of cancellation contains a physical address to which notice of cancellation may be mailed or otherwise delivered. A post office box does not constitute a physical address. A post office box may be designated for delivery by mail only if it is accompanied by a physical address at which the notice could be delivered by a method other than mail. An electronic mail address may be provided in addition to the physical address. If cancellation is mailed, delivery is effective upon mailing. If electronically mailed, cancellation is effective upon transmission. 3. A notice of cancellation given by the foreclosed homeowner need not take the particular form as provided with the contract. 4. Within ten days following receipt of a notice of cancellation given in accordance with this section, the foreclosure purchaser shall return without condition any original contract and any other documents signed by the foreclosed homeowner.

         Section History: Recent Form

         2008 Acts, ch 1125, §13, 19; 2009 Acts, ch 41, §167
         Referred to in § 714F.6
        

714F.5 NOTICE OF CANCELLATION. 1. The contract must contain in immediate proximity to the space reserved for the foreclosed homeowner's signature a conspicuous statement in a size equal to at least fourteen point boldface type if the contract is printed, or in capital letters if the contract is typed, as follows: You may cancel this contract for the sale of your house without any penalty or obligation at any time before ...... (date and time of day) See the attached notice of cancellation form for an explanation of this right. The foreclosure purchaser shall accurately enter the date and time of day on which the cancellation right ends. 2. The contract must be accompanied by a completed form in duplicate, captioned "notice of cancellation" in a size equal to a twelve point boldface type if the contract is printed, or in capital letters if the contract is typed, followed by a space in which the foreclosure purchaser shall enter the date on which the foreclosed homeowner executes the contract. This form must be attached to the contract, must be easily detachable, and must contain in type of at least ten points if the contract is printed, or in capital letters if the contract is typed, the following statement written in the same language as used in the contract: NOTICE OF CANCELLATION ...... (enter date contract signed) You may cancel this contract for the sale of your house, without any penalty or obligation, at any time before ....... (enter date and time of day) To cancel this transaction, you may use any of the following methods: (1) mail or otherwise deliver a signed and dated copy of this cancellation notice; or (2) e-mail a notice of cancellation to ............ (name of purchaser) at ............... (physical address of purchaser's place of business) ......... (e-mail address of foreclosure consultant's place of business) Not later than ....... (enter date and time of day) I hereby cancel this transaction. ...... (date) .............. (seller's signature) 3. The foreclosure purchaser shall provide the foreclosed homeowner with a copy of the contract and the attached notice of cancellation at the time the contract is executed by all parties. 4. The three business days during which the foreclosed homeowner may cancel the contract shall not begin to run until all parties to the contract have executed the contract and the foreclosure purchaser has complied with this section.

         Section History: Recent Form

         2008 Acts, ch 1125, §14, 19
         Referred to in § 714F.3
        

714F.6 WAIVER. A waiver of the provisions of this chapter is void and unenforceable as contrary to public policy, except a consumer may waive the three-day right to cancel provided in section 714F.4 if the property is subject to a foreclosure sale, tax sale, or contract forfeiture within the three business days and the shortened cancellation period was not caused by the foreclosure purchaser or an agent of the foreclosure purchaser. A waiver of a foreclosed homeowner's right to cancel shall be in a handwritten statement signed by all parties holding title to the foreclosed property.

         Section History: Recent Form

         2008 Acts, ch 1125, §15, 19; 2009 Acts, ch 133, §182
        

714F.7 ARBITRATION PROHIBITED. A provision in a contract which attempts or purports to require arbitration of any dispute arising under this chapter is void at the option of the foreclosed homeowner.

         Section History: Recent Form

         2008 Acts, ch 1125, §16, 19
        

714F.8 PROHIBITED PRACTICES. A foreclosure purchaser shall not do any of the following: 1. Enter into, or attempt to enter into, a foreclosure reconveyance with a foreclosed homeowner unless all of the following apply: a. The foreclosure purchaser verifies and can demonstrate that the foreclosed homeowner has a reasonable ability to pay for the subsequent conveyance of an interest back to the foreclosed homeowner. In the case of a lease with an option to purchase, payment ability also includes the reasonable ability to make the lease payments and purchase the property within the term of the option to purchase. A rebuttable presumption arises that a foreclosed homeowner is reasonably able to pay for the subsequent conveyance if the foreclosed homeowner's payments for primary housing expenses and regular principal and interest payments on other personal debt, on a monthly basis, do not exceed sixty percent of the foreclosed homeowner's monthly gross income. For the purposes of this section, "primary housing expenses" means the sum of payments for regular principal, interest, rent, utilities, hazard insurance, real estate taxes, and association dues. A rebuttable presumption arises that the foreclosure purchaser has not verified reasonable payment ability if the foreclosure purchaser has not obtained documents other than a statement by the foreclosed homeowner of assets, liabilities, and income. b. The foreclosure purchaser and the foreclosed homeowner complete a closing for any foreclosure reconveyance in which the foreclosure purchaser obtains a deed or mortgage from a foreclosed homeowner. For purposes of this section, "closing" means an in-person meeting to complete final documents incident to the sale of the real property or the creation of a mortgage on the real property conducted by a closing agent, who is not employed by or an affiliate of the foreclosure purchaser, or employed by such an affiliate, and who does not have a business or personal relationship with the foreclosure purchaser other than the provision of real estate settlement services. c. The foreclosure purchaser obtains the written consent of the foreclosed homeowner to a grant by the foreclosure purchaser of any interest in the property during such times as the foreclosed homeowner maintains any interest in the property. d. The foreclosure purchaser complies with the requirements for disclosure, loan terms, and conduct in the federal Home Ownership Equity Protection Act, 15 U.S.C. § 1639, for any foreclosure reconveyance in which the foreclosed homeowner obtains a vendee interest in a contract for deed, regardless of whether the terms of the contract for deed meet the annual percentage rate or points and fees requirements for a covered loan in 12 C.F.R. § 226.32(a) and (b). 2. Enter into a foreclosure reconveyance unless the foreclosure purchaser notifies all existing mortgage lien holders of the foreclosure purchaser's intent to accept conveyance of any interest in the property from the foreclosed homeowner, and fully complies with all terms and conditions contained in the mortgage lien documents including but not limited to due-on-sale provisions or meeting all qualification requirements for assuming the repayment of the mortgage. 3. Fail to do any of the following: a. Ensure that title to the subject dwelling has been reconveyed to the foreclosed homeowner. b. (1) Make a payment to the foreclosed homeowner such that the foreclosed homeowner has received consideration in an amount of at least eighty-two percent of the fair market value of the property, as the property was when the foreclosed homeowner vacated the property, within ninety days of either the eviction or voluntary relinquishment of possession of the property by the foreclosed homeowner. The foreclosure purchaser shall make a detailed accounting of the basis for the payment amount, or a detailed accounting of the reasons for failure to make a payment, including providing written documentation of expenses, within this ninety-day period. The accounting shall be on a form prescribed by the attorney general, in consultation with the superintendent of the banking division of the department of commerce without being subject to the rulemaking procedures of chapter 17A. (2) For purposes of this paragraph "b", all of the following shall apply: (a) A rebuttable presumption arises that an appraisal by a person licensed or certified by an agency of the federal government or this state to appraise real estate constitutes the fair market value of the property. (b) The time for determining the fair market value amount shall be determined in the foreclosure reconveyance contract as either at the time of the execution of the foreclosure reconveyance contract or at resale. If the contract states that the fair market value shall be determined at the time of resale, the fair market value shall be the resale price if it is sold within sixty days of the eviction or voluntary relinquishment of the property by the foreclosed homeowner. If the contract states that the fair market value shall be determined at the time of resale, and the resale is not completed within sixty days of the eviction or voluntary relinquishment of the property by the foreclosed homeowner, the fair market value shall be determined by an appraisal conducted within one hundred eighty days of the eviction or voluntary relinquishment of the property by the foreclosed homeowner and payment, if required, shall be made to the foreclosed homeowner, but the fair market value shall be recalculated as the resale price on resale and an additional payment amount, if appropriate, based on the resale price, shall be made to the foreclosed homeowner within fifteen days of resale, and a detailed accounting of the basis for the payment amount, or a detailed accounting of the reasons for failure to make additional payment, shall be made within fifteen days of resale, including providing written documentation of expenses. The accounting shall be on a form prescribed by the attorney general, in consultation with the superintendent of the banking division of the department of commerce, without being subject to the rulemaking procedures of chapter 17A. (c) "Consideration" means any payment or thing of value provided to the foreclosed homeowner, including payment of unpaid rent or contract for deed payments owed by the foreclosed homeowner prior to the date of eviction or voluntary relinquishment of the property, reasonable costs paid to third parties necessary to complete the foreclosure reconveyance transaction, payment of money to satisfy a debt or legal obligation of the foreclosed homeowner that creates a lien against the affected residence, or the payment of reasonable cost of repairs for damage to the dwelling caused by the foreclosed homeowner; or a payment of a penalty imposed by a court for the filing of a frivolous claim under section 714F.9, subsection 6, but "consideration" shall not include amounts imputed as a down payment or fee to the foreclosure purchaser, or a person acting in participation with the foreclosure purchaser, incident to a contract for deed, lease, or option to purchase entered into as part of the foreclosure reconveyance, except for reasonable costs paid to third parties necessary to complete the foreclosure reconveyance. 4. Enter into repurchase or lease terms as part of the subsequent conveyance that are unfair or commercially unreasonable, or engage in any other unfair conduct. 5. Represent, directly or indirectly, any of the following: a. The foreclosure purchaser is acting as an advisor or a consultant, or in any other manner represents that the foreclosure purchaser is acting on behalf of the foreclosed homeowner. b. The foreclosure purchaser has a qualification, certification, or licensure that the foreclosure purchaser does not have, or that the foreclosure purchaser is not a member of a licensed profession if that is untrue. c. The foreclosure purchaser is assisting the foreclosed homeowner to "save the house" or a substantially similar phrase. d. The foreclosure purchaser is assisting the foreclosed homeowner in preventing a completed foreclosure, forfeiture, or tax sale if the result of the transaction is that the foreclosed homeowner will not complete a redemption of the property. 6. Make any other statements, directly or by implication, or engage in any other conduct that is false, deceptive, or misleading, or that has the likelihood to cause confusion or misunderstanding, including but not limited to statements regarding the value of the residence in foreclosure, the amount of proceeds the foreclosed homeowner will receive after a foreclosure sale, any contract term, or the foreclosed homeowner's rights or obligations incident to or arising out of the foreclosure reconveyance. 7. Do any of the following until the time during which the foreclosed homeowner may cancel the transaction has fully elapsed: a. Accept from a foreclosed homeowner an execution of, or induce a foreclosed homeowner to execute, an instrument of conveyance of any interest in the residence in foreclosure. b. Record with the county recorder or file with the registrar of titles any document including but not limited to an instrument of conveyance, signed by the foreclosed homeowner. c. Transfer or encumber or purport to transfer or encumber any interest in the residence in foreclosure to any third party.

         Section History: Recent Form

         2008 Acts, ch 1125, §17, 19; 2009 Acts, ch 41, §168
        

714F.9 ENFORCEMENT. 1. Remedies. A violation of this chapter is an unlawful practice pursuant to section 714.16, and all the remedies of section 714.16 are available for such an action. A private cause of action brought under this chapter by a foreclosed homeowner is in the public interest. A foreclosed homeowner may bring an action for a violation of this chapter. If the court finds a violation of this chapter, the court shall award to the foreclosed homeowner actual damages, appropriate equitable relief, and the costs of the action, and shall award reasonable fees to the foreclosed homeowner's attorney. Notwithstanding any other provision of this section, an action shall not be brought on the basis of a violation of this chapter except by a foreclosed homeowner against whom the violation was committed or by the attorney general. This limitation does not apply to administrative action by the superintendent of the banking division of the department of commerce. 2. Exemplary damages. In a private right of action for a violation of this chapter, the court may award exemplary damages. If the court determines that an award of exemplary damages is appropriate, the amount of exemplary damages awarded shall not be less than one and one-half times the foreclosed homeowner's actual damages. Any claim for exemplary damages brought pursuant to this section must be commenced within four years after the date of the alleged violation. 3. Remedies cumulative. The remedies provided in this section are cumulative and do not restrict any remedy that is otherwise available. The provisions of this chapter are not exclusive and are in addition to any other requirements, rights, remedies, and penalties provided by law. No action under this section shall affect the rights in the foreclosed property held by a good faith purchaser for value. 4. Criminal penalty. A foreclosure purchaser who engages in a practice which would operate as a fraud or deceit upon a foreclosed homeowner is guilty of a serious misdemeanor. Prosecution or conviction for any one of the violations does not bar prosecution or conviction for any other offenses. 5. Failure of transaction. Failure of the parties to complete the reconveyance transaction, in the absence of additional misconduct, shall not subject a foreclosure purchaser to the criminal penalties under this chapter. 6. Stay of eviction action. a. A court hearing an eviction action against a foreclosed homeowner must issue an automatic stay, without imposition of a bond, if the foreclosed homeowner makes a prima facie showing that all of the following apply: (1) The foreclosed homeowner has done any of the following: (a) Commenced an action concerning a foreclosure reconveyance. (b) Asserts a defense that the property that is the subject of the eviction action is also the subject of a foreclosure reconveyance in violation of this chapter. (c) Asserts a claim or affirmative defense of fraud, false pretense, false promise, misrepresentation, misleading statement, or deceptive practice, in connection with a foreclosure reconveyance. (2) The foreclosed homeowner owned the residence in foreclosure. (3) The foreclosed homeowner conveyed title to the residence in foreclosure to a third party upon a promise that the foreclosed homeowner would be allowed to occupy the residence in foreclosure or other real property in which the foreclosure purchaser or a person acting in participation with the foreclosure purchaser has an interest and that the residence in foreclosure or other real property would be the subject of a foreclosure reconveyance. (4) Since the conveyance, the foreclosed homeowner has continuously occupied the residence in foreclosure or other real property in which the foreclosure purchaser or a person acting in participation with the foreclosure purchaser has an interest. b. For purposes of this subsection, notarized affidavits are acceptable means of proof to meet the foreclosed homeowner's burden. Upon good cause shown, a foreclosed homeowner may request and the court may grant up to an additional two weeks to produce evidence required to make the prima facie showing. c. A court may award to a plaintiff a penalty of up to five hundred dollars upon a showing that the foreclosed homeowner filed a frivolous claim or asserted a frivolous defense. d. The automatic stay expires upon the later of any of the following: (1) The failure of the foreclosed homeowner to commence an action in a court of competent jurisdiction in connection with a foreclosed reconveyance transaction within ninety days after the issuance of the stay. (2) The issuance of an order lifting the stay by a court hearing claims related to the foreclosure reconveyance.

         Section History: Recent Form

         2008 Acts, ch 1125, §18, 19; 2009 Acts, ch 133, §183
         Referred to in § 714F.8

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