REFERENCE TITLE: foreclosures; limitation; affidavit

State of Arizona House of Representatives Fiftieth Legislature First Regular Session 2011

HB 2124

Introduced by Representative Patterson

 

AN ACT

 

amending title 33, chapter 6.1, article 1, Arizona Revised Statutes, by adding section 33-810.01; providing for the delayed repeal of section 33‑810.01, Arizona Revised Statutes; relating to deeds of trust.

 

 

(TEXT OF BILL BEGINS ON NEXT PAGE)

 

Be it enacted by the Legislature of the State of Arizona:

Section 1.  Title 33, chapter 6.1, article 1, Arizona Revised Statutes, is amended by adding section 33-810.01, to read:

START_STATUTE33-810.01.  Stay of trustee's sale; affidavit; one‑year period

A.  On receipt of a notice of sale, the owner of the property may deliver to the trustee an affidavit for temporary stay of trustee's sale.    The affidavit shall be sworn to and signed by at least one of the owners of the trust property and the owner's signature shall be notarized.  The affidavit shall contain the statement of that owner as follows:

1.  The owner is a natural person.

2.  The loan that is secured by the property was incurred primarily for personal, family or household purposes.

3.  The loan is secured by a first or second deed of trust or a home equity loan on real property that is improved with one to four residential units.

4.  The real property that is subject to foreclosure is the principal residence of the owner.

5.  The owner owns no other real property.

6.  The real property is located in this state.

B.  The affidavit shall also include the owner's telephone number, mailing address and any other contact information for the owner.

C.  The owner shall mail the affidavit to the trustee at the address provided by the trustee in the notice of sale.  On receipt of an affidavit that appears on its face to be complete, the trustee shall postpone the sale for at least sixty days and shall provide notice of the postponement of the sale to all persons who are required to receive a notice of sale.

D.  During the sixty-day postponement period, the owner shall have the opportunity to negotiate a revised payment or other revised terms of the loan and may accept the assistance of a representative of a private nonprofit organization, a representative of a city, town, county or state government or a representative of a federal agency to assist the owner in meeting with and negotiating a resolution with the lender.  The trustee shall assist in providing information, including lender contact information, and shall cooperate with any meetings and negotiations that occur between the owner and lender.

E.  During the sixty-day postponement period, the owner shall make payments on the loan that is in foreclosure in an amount that the owner and lender agree is just and equitable.  Failure to make the payment agreed to pursuant to this subsection terminates the stay of foreclosure, and on notice from the lender of failure to make a payment after the expiration of the sixty-day period, the trustee may reschedule the trustee's sale.  If the owner continues to make a timely monthly payment in the amount agreed to pursuant to this subsection, a trustee's sale may not be held any earlier than one year after the date of the originally scheduled trustee sale.  On completion of the one‑year period, and unless the lender has revised the terms of the loan and directed the trustee to cancel the sale, the trustee's sale may proceed as otherwise provided by law. END_STATUTE

Sec. 2.  Delayed repeal

Section 33‑810.01, Arizona Revised Statutes, as added by this act, is repealed from and after June 30, 2014.

Sec. 3.  Severability

If a provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.

Sec. 4.  Legislative intent

The legislature declares that a serious public emergency exists with respect to real estate foreclosures in this state due to widespread and fundamentally unsound lending practices for mortgage loans, second mortgages and home equity loans.  These lending practices have skewed the real estate and mortgage market in this state, have caused distress to consumers, neighborhoods and communities and have adversely affected the economic health of this state.  The legislature declares that it is in the interests of this state that during this time of serious economic strain, homeowners should be permitted an opportunity to work with their lenders to reconfigure their obligations in a manner that preserves neighborhoods and protects both consumers and lenders.