5/01/0

Exerpt from The New York Times

Home Equity Theft Prevention Act, which took effect on Feb. 1, is meant to protect homeowners who have defaulted on their mortgages from predators intent on bilking them out of their property. But lawyers and title insurers say the law may have some unintended consequences.

The law applies to the owner of a one- to four-family home who is facing foreclosure or who is more than two months behind on mortgage payments. If he sells the house to avoid foreclosure, under some circumstances he can rescind the sale for up to two years.

The law was intended to curtail scams in which a buyer approaches an owner in financial distress, offers to buy the house for less than it is worth while allowing the owner to remain in it, and then promises to sell the house back if the owner makes payments to the buyer.

While the law does protect homeowners from such tactics, it will also make it difficult for owners facing foreclosure to find investors to help them out.

When a homeowner defaults on a mortgage and the property cannot be sold for enough to pay it off, there are only a couple of options available to avoid foreclosure. One is the lender's allowing the property to be sold for less than the amount due and accepting the sale amount as payment in full. The other is the lender's accepting a transfer of title from the owner in exchange for forgiving the loan.

Under the new law, if a homeowner in default sells to an "equity purchaser" — basically, someone who is not going to use the house as his principal residence — the owner has two years to rescind the sale if the buyer has not fully complied with the law.

There are a host of requirements to comply with. Homeowners and title insurers have concerns.This may make it difficult for investors to get mortgages and for homeowners in financial trouble to find buyers.

lenders sometimes accept a deed from a defaulting owner to avoid the time and expense of foreclosure, lenders will now be much less likely to consent to such deals. It seems that the safest thing for the lender to do now is go through with the foreclosure sale.

Anyone who buys from a seller in default and uses the house as a principal residence is exempt from the law; so are third parties who buy from "equity purchasers" who bought from the original owner, provided they did not know that the owner had been in default. Also exempt are immediate family members and purchasers in court-ordered sales.

Some real estate attorneys wonder how they can let their clients buy a property knowing that the seller can come back two years from now and demand the rescission of the sale.