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 (EMAILWIRE.COM, July 11, 2011 ) Salt Lake City, Utah -- Stopping Foreclosure in Utah. A discussion of § 57-1-23.5, U.C.A. | Homeowner Protection Statute.
by Walter Keane
July 2011
Salt Lake City
In early May 2011, the third version of Utah Senate Bill 261 went into effect as Utah Code § 57-1-23.5, UCA. The bill is entitled “civil liability for unauthorized person who exercise power of sale.” In this article I will refer to it as the “homeowner protection statute.”
Due to the homeowner protection statute, the citizens and property owners now have significant rights when dealing with foreclosure and those parties who are allies of the banks, such as title companies and attorney trustees foreclosing on behalf of the banks.
In its most straightforward interpretation this statute imposes attorney's fees and a minimum $2,000 in civil liability on Bank of America's ReconTrust should ReconTrust foreclose on a Utah property. Any property owner who is being foreclosed upon by ReconTrust should consult an experienced real estate attorney and immediately bring an action under this law.
But, the homeowner protection statute can also be used against Utah attorney trustees foreclosing on the property – such as Woodall, Bates and Halliday – to determine whether these individuals can perform communications with the "lender" as that term is defined by the trust deed and Utah law.
To put it another way, if an attorney trustee cannot identify the promissory note holder (i.e., the “lender”) then the attorney trustee lacks the qualifications to be a trustee under Utah Code § 57-1-21. If the attorney trustee lacks the qualifications, any foreclosure conducted by that attorney trustee is an unauthorized foreclosure and the successful plaintiff will collect attorney fees and minimum required damages of $2,000.
While $2,000 is the minimum, it seems reasonable to argue for the market value of the property at the time of foreclosure. Perhaps damages should be based on the amount of equity remaining in the home after the trusteeÂ’s sale. Each case is different and based on the circumstances the damages award will fluctuate; however, homeowners can at least recover $2,000, attorney's fees and all court costs expended should they be successful.
Unfortunately, the one-size-fits-all approach does not work in the area of foreclosure defense because there are so many variables in each separate case. The various parties involved in a particular mortgage – i.e., the servicer(s), the promissory note holder, the trust company which closed the loan, the original trustee of the trust deed, MERS, the substitute trustee, the original lender, etc. – can each take a myriad of missteps.
It's extremely difficult for homeowner to truly know what is going on with their loan; the clients I meet with are often shocked when I confronted him with evidence of various actions taken by the bank. The apathy and potential missteps made by foreclosing parties is significant.
The missteps could be so significant that an injunction stopping foreclosure from occurring could be procured. In that case the homeowner would want to assert more than just the civil liability statute but other causes of action.
As noted in the recent Park City Record the allies of the foreclosing banks pressured the Utah Legislature into watering down the proposed legislation. According to the Part City Record, it was the intent of Sen. Bramble who wrote the bill to have liability to spread to all parties involved in the action by and through of "fine" which could be imposed by a court. This was watered down so that now homeowners must hire an attorney and bring a civil action in order to take advantage of this new and powerful law.
While we are all thankful for Sen. Bramble and the Governor, Utah homeowners should write to their law makers demanding
more protection from the banks.
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Read More about Walter Keane's cutting-edge legal practice:
http://www.waltertkeane.com
Walter T Keane PC
Walter Keane
801-990-4422
walter@waltertkeane.com 
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