Chapter 177
2012 -- H 7225 SUBSTITUTE A
Enacted 06/08/12
A N A C T
RELATING TO
PROPERTY - FORM AND EFFECT OF CONVEYANCES
Introduced
By: Representatives Gallison, Silva, O`Neill, Keable,
and
Date Introduced: January 24, 2012
It is enacted by the
General Assembly as follows:
SECTION 1. Section 34-27-4 of the General Laws in Chapter
34-27 entitled "Mortgage
Foreclosure and
34-27-4. Publication
of notice under power of sale Publication of notice under power
of sale and rights of active military servicemembers. -- (a) Whenever any real estate shall be
sold under any power of sale mortgage executed subsequent
to May 4, 1911, and the mortgage
shall provide for the giving of notice of the sale by
publication in some public newspaper at least
once a week for three (3) successive weeks before the
sale, the first publication of the notice shall
be at least twenty-one (21) days before the day of sale,
including the day of the first publication in
the computation, and the third publication of the notice
shall be no fewer than seven (7) days
before the original date of sale listed in the
advertisement, including the day of the third
publication in the computation, and no more than fourteen (14)
days before the original date of
sale listed in the advertisement. The sale may take place
no more than fourteen (14) days from the
date on which the third successive notice is published,
excluding the day of the third publication
in the computation. Provided, however, that if the sale
is adjourned as provided in
general laws section 34-11-22, and the adjourned sale is held
during the same calendar week as
the originally scheduled day of sale, no additional
advertising is required. Otherwise, publication
of the notice of the adjourned sale, together with a
notice of the adjournment or adjournments,
shall be continued at least once each week commencing with
the calendar week following the
originally scheduled day of sale; the sale, as so adjourned,
shall take place during the same
calendar week in which the last notice of the adjourned sale
is published, at least one day after the
date on which the last notice is published.
(b)
Provided, however, that no notice shall be valid or effective unless the
mortgagor has
been mailed written notice of the time and place of sale
by certified mail return receipt requested
at the address of the real estate and, if different, at the
mortgagor's address listed with the tax
assessor's office of the city or town where the real estate is
located or any other address
mortgagor designates by written notice to mortgagee at his,
her, or its last known address, at least
twenty (20) days for mortgagors other than individual
consumer mortgagors, and at least thirty
(30) days for individual
consumer mortgagors, days prior to the first publication, including the
day of mailing in the computation. The mortgagee shall
include in the foreclosure deed an
affidavit of compliance with this provision.
(c) Provided further,
that the notice mailed to the mortgagor in accordance with
subsection (b) above shall also contain a copy of subsection (d)
below (printed in not less than 12
point type) headed by the following notice (printed in not
less than 14 point type): “A
servicemember on active duty or deployment or who has recently
ceased such duty or deployment
has certain rights under subsection 34-27-4(d) of the
protect your rights if you are such a servicemember,
you should give written notice to the servicer
of the obligation or the attorney conducting the
foreclosure, prior to the sale, that you are a
servicemember on active duty or deployment or who has recently
ceased such duty or
deployment. This notice may be given on your behalf by your
authorized representative. If you
have any questions about this notice, you should consult
with an attorney.” The mortgagee shall
include in the foreclosure deed an affidavit of compliance
with this provision.
(d) Foreclosure sales
affecting servicemembers.-
(1) The following
definitions shall apply to this subsection and to subsection (c):
(i)
“Servicemember” means a member of the army, navy, air
force, marine corps, or coast
guard and members of the national guard or reserves called
to active duty.
(ii) “Active duty”
has the same meaning as the term is defined in 10 U.S.C. sections
12301 through 12304. In the case of a member of the national
guard, or reserves “active duty”
means and includes service under a call to active service
authorized by the president or the
secretary of defense for a period of time of more than thirty
(30) consecutive days under 32
U.S.C. section 502(f), for the purposes of responding
to a national emergency declared by the
president and supported by federal funds.
(2) This subsection
applies only to an obligation on real and related personal property
owned by a service member that:
(i)
Originated before the period of the servicemember's
military service or in the case of a
member of the national guard or reserves originated before
being called into active duty and for
which the servicemember is still
obligated; and
(ii) Is secured by a
mortgage or other security in the nature of a mortgage.
(3) Stay of right to
foreclose by mortgagee. – Upon receipt of written notice from the
mortgagor or mortgagor’s authorized representative that the
mortgagor is participating in active
duty or deployment or that the notice as provided in
subsection (c) was received within nine (9)
months of completion of active duty or deployment, the
mortgagee shall be barred from
proceeding with the execution of sale of the property as defined
in the notice until such nine (9)
month period has lapsed or until the mortgagee obtains
court approval in accordance with
subdivision (d)(5) below.
(4) Stay of
proceedings and adjustment of obligation. – In the event a mortgagee
proceeds with foreclosure of the property during, or within
nine (9) months after a
servicemember's period of active duty or deployment notwithstanding
receipt of notice
contemplated by subdivision (d)(3) above, the servicemember
or his or her authorized
representative may file a petition against the mortgagee seeking a
stay of such foreclosure, after a
hearing on such petition, and on its own motion, the court
may:
(i)
Stay the proceedings for a period of time as justice and equity require; or
(ii) Adjust the
obligation as permitted by federal law to preserve the interests of all
parties.
(5)
obligation of a servicemember who is
entitled to the benefits under subsection (d) and who
provided the mortgagee with written notice permitted under
subdivision (d)(3) shall not be valid
if made during, or within nine (9) months after, the
period of the servicemember's military service
except:
(i)
Upon a court order granted before such sale, foreclosure or seizure after
hearing on a
petition filed by the mortgagee against such servicemember; or
(ii) If made pursuant
to an agreement of all parties.
(6) Penalties.- A mortgagee who knowingly makes or causes to be made a
sale,
foreclosure or seizure of property that is prohibited by
subsection (d)(3) shall be fined the sum of
one thousand dollars ($1,000), or imprisoned for not more
than one year, or both. The remedies
and rights provided hereunder are in addition to and do not
preclude any remedy for wrongful
conversion otherwise available under law to the person claiming
relief under this section,
including consequential and punitive damages.
(7)
Any petition hereunder shall be commenced by action filed in the superior court
for
the county in which the property subject to the mortgage
or other security in the nature of a
mortgage is situated. Any hearing on such petition shall be
conducted on an expedited basis
following such notice and/or discovery as the court deems
proper.
SECTION 2. This act shall take effect upon passage.
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LC00746/SUB A
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