It is a violation of the Mortgage Foreclosure Consultant Fraud Prevention Act for a foreclosure consultant to:

1. A. claim, demand, charge, collect or receive any compensation until after the foreclosure consultant has fully performed every service the foreclosure consultant contracted to perform or represented the consultant would perform;
2. B. claim, demand, charge, collect or receive any fee, interest or any other compensation for any reason that exceeds five percent per annum of the amount of any loan that the foreclosure consultant may make to the owner. Such a loan may not be secured by the residence in foreclosure or any other real or personal property;
3. C. take a wage assignment, lien of any type on real or personal property or other security to secure the payment of compensation. Any such security is void and unenforceable;
4. D. receive any consideration from a third party in connection with services rendered to an owner;
5. E. acquire any interest, directly or indirectly, or by means of a subsidiary or affiliate in a residence in foreclosure from an owner with whom the foreclosure consultant has contracted;
6. F. take a power of attorney from an owner for any purpose, except to inspect documents as provided by law;

7. G. include a provision in a foreclosure consulting contract that:

   1. (1) attempts or purports to waive an owner's rights under the Mortgage Foreclosure Consultant Fraud Prevention Act;
   2. (2) requires an owner to consent to jurisdiction for litigation or choice of law in a state other than New Mexico;
   3. (3) provides for venue in a county other than the county in which the residence in foreclosure is located; or
   4. (4) imposes any costs or filing fees greater than the fees required to file an action in a district court; or
8. H. induce or attempt to induce an owner to enter a contract that does not comply in all respects with the Mortgage Foreclosure Consultant Fraud Prevention Act.

History: Laws 2010, ch. 58, § 5.

ANNOTATIONS

Effective dates. — Laws 2010, ch. 58 contained no effective date provision, but, pursuant to N.M. Const., art. IV, § 23, was effective May 19, 2010, 90 days after the adjournment of the legislature.

Severability. — Laws 2010, ch. 58 § 9 provided if any provision of the Mortgage Foreclosure Consultant Fraud Prevention Act or the application of any of its provisions to any person or circumstance is held to be unconstitutional and void, the remainder of the Mortgage Foreclosure Consultant Fraud Prevention Act remains valid.

Law firm and individual attorneys were liable for violations of the Mortgage Foreclosure Consultant Fraud Prevention Act. — Where the state of New Mexico brought an action against certain California law firms and individual lawyers, alleging defendants violated the Mortgage Foreclosure Consultant Fraud Prevention Act (MFCFPA), §§ 47-15-1 through 47-15-8 NMSA 1978, and where it was established at trial that defendants performed or offered to perform services, such as obtaining a loan modification or reducing loan payments, that they claimed they would save a home from foreclosure for individuals who entered foreclosure services, and that through their fee agreements, defendants accepted advance payment for mortgage foreclosure relief and consultant services, defendants' activities satisfied the MFCFPA's requirements that, to be a foreclosure consultant, a person or an entity provide services to a homeowner to delay or postpone foreclosure sales through litigation, defendants' conduct violated the MFCFPA because it is a violation for a foreclosure consultant to claim, demand, charge collect or receive any compensation until after the foreclosure consultant has fully performed every service the foreclosure consultant contracted to perform or represented the consultant would perform, and defendants' fee agreements did not comply with several of the warnings, notices, and disclosures required by the MFCFPA regarding foreclosure consultant contracts. Moreover, the MFCFPA's attorney exemption did not apply because defendants were not licensed in New Mexico as required by § 47-15-2(B)(2)(a) NMSA 1978. New Mexico ex rel. Balderas v. Real Estate Law Center, PC, 430 F. Supp. 3d 761 (D. N.M. 2019).

Accepting advance payment for mortgage foreclosure relief is a violation of the Mortgage Foreclosure Consultant Fraud Prevention Act. — Where the state of New Mexico (plaintiff) brought an action against two attorneys and the mortgage assistance company they owned, alleging defendants violated the Mortgage Foreclosure Consultant Fraud Prevention Act (MFCFPA), §§ 47-15-1 through 47-15-8 NMSA 1978, by accepting advance payment for mortgage foreclosure relief and consultant services, and where defendants moved for summary judgment, arguing that plaintiff cannot show that defendants were foreclosure consultants or that defendants provided mortgage relief services, and, as attorneys, they were exempt from the reach of the MFCFPA, summary judgment was not appropriate, because the MFCFPA's attorney exemption did not apply because defendants were not licensed in New Mexico as required by § 47-15-2(B)(2)(a), and there were genuine issue of material fact where plaintiff presented evidence that defendants offered clients help with preventing foreclosure and modifying their mortgages, that defendants received compensation before they fully performed every service they contracted to perform or represented that they would perform, and that defendants' fee agreement did not comply with several of the warnings, notices, and disclosures required by § 47-15-3 NMSA 1978. New Mexico ex rel. Balderas v. Real Estate Law Center, PC, 401 F. Supp.3d 1229 (D. N.M. 2019).