HB 331 Passes in Idaho

David E. Fennell, Esq. 

HB 331 has been signed into Idaho law by Governor C.L. “Butch” Otter. UTA, spearheaded by the work of David Fennell, Esq., Routh Crabtree Olsen, will work with the Attorney General’s office and the banking industry to amend the law during the next legislative session.

A summary of the law, provided by David Fennell, follows:

1. It requires mailing a postponement notice at by certified mail prior to going to sale and recording an affidavit of compliance with the mailing requirement.  It only requires mailing once -- concurrently with the last postponement.  The problem is that trustees rarely know a postponement will be the last postponement fourteen days before sale.  Same day postponements will be impossible.
   
   
2. It adopts, generally, the Oregon loan modification notice and loan modification request form procedure.  But the roles concerning who performs what function are mixed up in the drafting (for instance, the beneficiary or its authorized agent must sign the loan modification notice, but it's the trustee that sends the notice with the notice of sale) and the required form of affidavit of compliance (signed by the beneficiary or its authorized agent averring to events of which the affiant has no knowledge or events that, ninety-nine percent of the time, have not occurred) is an invitation to commit perjury or fall out of strict statutory compliance.
   
   
3. The loan modification notice and loan modification request form must be in the Spanish language if the trust deed or even an assignment in the Spanish language. 

The A.G.'s office has advised that it will be drafting and proposing forms to comply with the statute”, said Fennell. “But the law itself does not explicitly provide the A.G. or any other agency of the state rule making power related to compliance with the new law. It is difficult to see how the A.G.'s proposed forms would provide trustees and beneficiaries a safe harbor for complying with this poorly drafted bill.”

Fennell did testify in opposition to the bill before the legislature.

Read the Bill