Hawaii enacts Act 137 resulting in mass confusion and lack of client service!

Oi! I appreciate our law makers I really do... but they have me befuddled now... Act 137 is called the "Mortgage Rescue Fraud Prevention Act", more likely it will be the "Client Service Prevention Act". The intent is good but in practice...well... I guess a few rotten apples really have spoiled the barrel!

This is the actual wording;

The term distressed property is defined by Hawaii's Mortgage Rescue Fraud Protection Act ("the Act") as follows:

Any residential real property that:

(1) Is in foreclosure or at risk of foreclosure because payment of any loan that is secured by the residential real property is more than sixty days

delinquent;

(2) Had a lien or encumbrance charged against it because of nonpayment of any taxes, lease assessments, association fees, or maintenance

fees;

(3) Is at risk of having a lien or encumbrance charged against it because the payments of any taxes, lease assessments, association fees, or

maintenance fees are more than ninety days delinquent;

(4) Secures a loan for which a notice of default has been given; or

(5) Secures a loan that has been accelerated.

The term "Distressed Property Consultant" is defined by the Act as follows:

Any person who performs or makes any solicitation, representation, or offer to perform any of the following relating to a Distressed Property:

(1) Stop or postpone the foreclosure sale or loss of any Distressed Property due to the nonpayment of any loan that is secured by the

Distressed Property;

(2) Stop or postpone the charging of any lien or encumbrance against any Distressed Property or eliminate any lien or encumbrance charged

against any Distressed Property for the nonpayment of any taxes, lease assessments, association fees, or maintenance fees;

(3) Obtain any forbearance from any beneficiary or mortgagee, or relief with respect to a tax sale of the property;

(4) Assist the owner to exercise any cure of default arising under Hawaii law;

(5) Obtain any extension of the period within which the owner may reinstate the owner's rights with respect to the property;

(6) Obtain any waiver of an acceleration clause contained in any promissory note or contract secured by a mortgage on a Distressed Property

or contained in the mortgage;

(7) Assist the owner in foreclosure, loan default, or post-tax sale redemption period to obtain a loan or advance of funds;

(8) Avoid or ameliorate the impairment of the owner's credit resulting from the recording or filing of a notice of default or the conduct of a

foreclosure sale or tax sale; or

(9) Save the owner's residence from foreclosure or loss of home due to nonpayment of taxes.

The term "Distressed Property Conveyance" is defined by the Act as follows:

The transfer of any interest in a Distressed Property effected directly or indirectly by or through a Distressed Property Consultant.

The term "Distressed Property Conveyance Contract" is defined by the Act as follows:

Any agreement or obligation affecting a Distressed Property Conveyance.

The term "Distressed Property Purchaser" is defined by the Act as follows:

Any person who acquires any interest in a Distressed Property directly or indirectly through a Distressed Property Conveyance or Distressed Property Conveyance Contract.

Distressed Property Purchase Contract: If, at any time during the pendency of the Purchase Contract, (i) Property becomes a Distressed Property,

and (ii) Seller uses, directly or indirectly, the services of a Distressed Property Consultant, Seller shall notify Buyer immediately in writing. Seller and

Buyer have been advised and understand that Hawaii's Mortgage Rescue Fraud Prevention Act requires that a Distressed Property Conveyance

Contract be used in any Distressed Property Conveyance. Buyer and Seller have further been advised and understand that, pursuant to the Act, the

Distressed Property Conveyance Contract must provide, among other things, certain specific notices, specific information concerning the Distressed

Property Purchaser, and additional cancellation rights for Seller, none of which appear in the Purchase Contract. Therefore, Buyer and Seller

understand and agree that, upon written notice from Seller being given of Property becoming a Distressed Property and the use of a Distressed Property

Consultant, unless Buyer and Seller agree to amend the Purchase Contract to incorporate all of the provisions mandated by the Mortgage Rescue Fraud

Prevention Act, the Purchase Contract shall terminate automatically, and Escrow shall return to Buyer all deposits previously made, less the amount of

any escrow expenses or fees chargeable to Buyer. Buyer and Seller are advised to obtain advice from a qualified Hawaii attorney.

Brokerage Firm Liability: Seller understands and agrees that Brokerage Firm shall not be liable for any loss, damage or harm to Seller resulting from

any communication between Seller or Seller's Distressed Property Consultant and any lien holder, lien holder's rejection of the Purchase Contract terms

or conditions, the imposition of additional requirements on Seller, the failure of lien holders to act in a timely manner, or lien holders proceeding with

foreclosure.

WOW! Can you see the conflicts there? I was speaking with a seller client this morning, she needs to sell a piece of land to help her pay her home mortgage cause she is in danger of foreclosure...am I becoming a DPC? Sure sounds like it, seems as if the only way to do my job and serve my clients is to become a DPC... Maybe it should be a new designation ;)

Thankfully, our Broker had gone over the act with us earlier in the year but the Pac Rim conference was the 1st time many agentas really got to vist over it...I jokingly commented that it felt like most of my properties are in danger of being Distressed Properties and another agent seriously replied that he knows all of his current listings are! Owch! What to do? How can we help our clients and yet not advise them? Kimo Stone said to stay away from Advise and don't talk to the lender and we would be ok. Problem is my fiduciary responsibility to my clients says to prevent fraud and work in their best interest. The way it is now I can not even fax the paperwork for my client, they have to go find a fax machine at a resort or something... I sent another client the Hopenow.com web site, am I a DPC now? Talk about a tight rope to walk...

I know my frustration is shared by Hawaii REALTORS, but how about the rest of you? Anyone else facing something like this?