§480E-10 - Prohibitions. - Hawaii Statutes

     [§480E-10]  Prohibitions.  (a)  A distressed property consultant shall not:

     (1)  Misrepresent or conceal any material fact;

     (2)  Induce or attempt to induce a distressed property owner to waive any provision of this chapter;

     (3)  Make any promise or guarantee not fully disclosed in the distressed property consultant contract;

     (4)  Engage or attempt to engage in any activity or act concerning the distressed property not fully disclosed in the distressed property consultant contract;

     (5)  Induce or attempt to induce a distressed property owner to engage in any activity or act not fully disclosed in the distressed property consultant contract;

     (6)  Take, ask for, claim, demand, charge, collect, or receive any compensation until after the distressed property consultant has fully performed each service the distressed property consultant contracted to perform or represented would be performed;

     (7)  Take, ask for, claim, demand, charge, collect, or receive for any reason, any fee, interest, or any other compensation that exceeds the two most recent monthly mortgage installments of principal and interest due on the loan first secured by the distressed property or the most recent annual real property tax charged against the distressed property, whichever is less;

     (8)  Take or ask for a wage assignment, a lien of any type on real or personal property, or other security to secure the payment of compensation.  This type of security is void and not enforceable;

     (9)  Receive any consideration from any third party in connection with services rendered to a distressed property owner unless the consideration is fully disclosed in the distressed property consultant contract;

    (10)  Acquire any interest, directly or indirectly, or by means of a subsidiary or affiliate, in a distressed property from a distressed property owner with whom the distressed property consultant has contracted;

    (11)  Require or ask a distressed property owner to sign any lien, encumbrance, mortgage, assignment, or deed unless the lien, encumbrance, mortgage, assignment, or deed is fully described in the distressed property consultant contract, including all disclosures required by this chapter; or

    (12)  Take any power of attorney from a distressed property owner for any purpose, except to inspect documents concerning the distressed property as allowed by law.

     (b)  A distressed property purchaser shall not:

     (1)  Misrepresent or conceal any material fact;

     (2)  Induce or attempt to induce a distressed property owner to waive this chapter;

     (3)  Make any promise or guarantee not fully disclosed in the distressed property conveyance [contract]1;

     (4)  Engage or attempt to engage in any activity or act concerning the distressed property not fully disclosed in the distressed property conveyance contract;

     (5)  Induce or attempt to induce a distressed property owner to engage in any activity or act not fully disclosed in the distressed property conveyance contract;

     (6)  Enter into or attempt to enter into a distressed property conveyance unless the distressed property purchaser verifies and can demonstrate that an owner of the distressed property has a reasonable ability to pay any amounts due to reacquire an interest in the distressed property or to make monthly or any other payments due under a distressed property conveyance contract or distressed property lease, if the distressed property purchaser allows any owner of a distressed property to remain in, occupy, use, or repurchase the distressed property;

     (7)  Fail to make a payment to the owner of the distressed property at the time the title is conveyed so that the owner of the distressed property has received consideration in an amount of at least eighty-two per cent of the property's fair market value, or, in the alternative, fail to pay the owner of the distressed property no more than the costs necessary to extinguish all of the existing obligations on the distressed property, as set forth in this chapter; provided that the owner's costs to repurchase the distressed property pursuant to the terms of the distressed property conveyance contract do not exceed one hundred twenty-five per cent of the distressed property purchaser's costs to purchase the property.  If an owner is unable to repurchase the property pursuant to the terms of the distressed property conveyance contract, the distressed property purchaser shall not fail to make a payment to the owner of the distressed property so that the owner of the distressed property has received consideration in an amount of at least eighty-two per cent of the property's fair market value at the time of conveyance or at the expiration of the owner's option to repurchase;

     (8)  Enter into any repurchase or lease agreement as part of a distressed property conveyance contract or subsequent conveyance of an interest in the distressed property back to a distressed property owner that is unfair or commercially unreasonable or engage in any other unfair conduct;

     (9)  Represent, directly or indirectly, that the distressed property purchaser is acting as an advisor or a consultant or is acting on behalf of or assisting an owner of a distressed property to "remain in the house", "save the house", "buy time", or "stop the foreclosure" or is doing anything other than purchasing the distressed property;

    (10)  Misrepresent the distressed property purchaser's status as to licensure or certification;

    (11)  Do any of the following until after the time during which an owner of a distressed property may cancel the distressed property conveyance contract:

         (A)  Accept from an owner of the distressed property execution of any instrument of conveyance of any interest in the distressed property;

         (B)  Execute an instrument of conveyance of any interest in the distressed property; or

         (C)  Pursuant to chapter 501 or 502, record any document signed by an owner of a distressed property, including any instrument of conveyance;

    (12)  Fail to re-convey title in a distressed property to the distressed property owner or owners when the terms of the distressed property conveyance contract have been fulfilled if the distressed property consultant or distressed property purchaser contracted or represented that title in the distressed property would be re-conveyed to the distressed property owner or owners when the terms of the distressed property conveyance contract have been fulfilled;

    (13)  Induce or attempt to induce an owner of the distressed property to execute a quitclaim deed concerning a distressed property;

    (14)  Enter into a distressed property conveyance contract where any party to the contract is represented by power of attorney;

    (15)  Immediately following the conveyance of the distressed property, fail to extinguish all liens encumbering the distressed property at the time of the distressed property conveyance or fail to assume all liability with respect to all liens encumbering the distressed property at the time of the distressed property conveyance, which assumption shall be accomplished without violations of the terms and conditions of the lien or liens being assumed.  Nothing herein shall preclude a lender from enforcing any provision in a contract that is not otherwise prohibited by law;

    (16)  Fail to complete a distressed property conveyance through:

         (A)  An escrow depository licensed by the department of commerce and consumer affairs;

         (B)  A bank, trust company, or savings and loan association authorized under any law of this State or of the United States to do business in the State;

         (C)  A person licensed as a real estate broker in this State who is the broker for a party to the escrow; provided that the person does not charge any escrow fee; or

         (D)  A person licensed to practice law in this State who, in escrow, is not acting as the employee of a corporation; provided that the person does not charge any escrow fee; or

    (17)  Cause the property to be conveyed or encumbered without the knowledge or permission of all owners of a distressed property or in any way frustrate the ability of a distressed property owner to reacquire the distressed property.

     (c)  There shall be a rebuttable presumption that an appraisal by a person licensed or certified as a real property appraiser by the State or the federal government is an accurate determination of the fair market value of the property.

     (d)  An evaluation of "reasonable ability to pay" under this chapter shall include debt to income ratio, fair market value of the distressed property, and the distressed property owner's payment history. [L 2008, c 137, pt of §2]