[CLBS] Idaho Trust Deeds Act amendment
Robert Maynes
mayneslaw at hotmail.com
Wed Aug 3 09:10:56 MDT 2016
So the list serve doesn’t like my attachments. Here’s the body of the text from the attachment:
TITLE 45
LIENS, MORTGAGES AND PLEDGES
CHAPTER 15
TRUST DEEDS
45-1502. DEFINITIONS - - TRUSTEE’S CHARGE. As used in this act:
(1) “Beneficiary” means the person named or otherwise designated in a trust deed as the person for whose benefit a trust deed is given, or his successor in interest, and who shall not be the trustee.
(2) “Grantor” means the person conveying real property by a trust deed as security for the performance of an obligation.
(3) “Trust Deed” means a deed executed in conformity with this act and conveying real property to a trustee in trust to secure the performance of an obligation of the grantor or other person named in the deed to a beneficiary.
(4) “Trustee” means a person to whom the legal title to real property is conveyed by trust deed, or his successor in interest.
(5) “Real Property” means any right, title, interest and claim in and to real property owned by the grantor at the date of execution of the deed of trust or acquired thereafter by said grantor or his successors in interest. Provided, nevertheless, real property so defined which may be transferred in trust under this act shall be limited to: (a) any real property located within an incorporated city or village at the time of the transfer; (b) any real property not exceeding eighty (80) acres, principally used for the agricultural production of crops, livestock, dairy or aquatic goods; or (c) any real property not exceeding forty (40) acres regardless of its use or location.
(6) The trustee shall be entitled to a reasonable charge for duties or services performed pursuant to the trust deed and this chapter, including compensation for reconveyance services notwithstanding any provision of a deed of trust prohibiting payment of a reconveyance fee by the grantor or beneficiary, or any provision of a deed of trust which limits or otherwise restricts the amount of a reconveyance fee to be charged or collected by the trustee. A trustee shall be entitled to refuse to reconvey a deed of trust until the trustee’s reconveyance fees and recording costs for recording the reconveyance instruments are paid in full. The trustee shall not be entitled to a foreclosure fee in the event of judicial foreclosure or work done prior to the recording of a notice of default. If the default is cured prior to the time of the last newspaper publication of the notice of sale, the trustee shall be paid a reasonable fee.
PROPOSED
TITLE 45
LIENS, MORTGAGES AND PLEDGES
CHAPTER 15
TRUST DEEDS
45-1502. DEFINITIONS - - TRUSTEE’S CHARGE. As used in this act:
(1) “Beneficiary” means the person named or otherwise designated in a trust deed as the person for whose benefit a trust deed is given, or his successor in interest, and who shall not be the trustee.
(2) “Grantor” means the person conveying real property by a trust deed as security for the performance of an obligation.
(3) “Trust Deed” means a deed executed in conformity with this act and conveying real property to a trustee in trust to secure the performance of an obligation of the grantor or other person named in the deed to a beneficiary.
(4) “Trustee” means a person to whom the legal title to real property is conveyed by trust deed, or his successor in interest.
(5) “Law Practice” means a professional corporation, partnership, limited liability partnership, limited liability company or sole proprietorship that is engaged in the practice of law in the state of Idaho.
(6) “Real Property” means any right, title, interest and claim in and to real property owned by the grantor at the date of execution of the deed of trust or acquired thereafter by said grantor or his successors in interest. Provided, nevertheless, real property so defined which may be transferred in trust under this act shall be limited to: (a) any real property located within an incorporated city or village at the time of the transfer; (b) any real property not exceeding eighty (80) acres, principally used for the agricultural production of crops, livestock, dairy or aquatic goods; or (c) any real property not exceeding forty (40) acres regardless of its use or location.
(7) The trustee shall be entitled to a reasonable charge for duties or services performed pursuant to the trust deed and this chapter, including compensation for reconveyance services notwithstanding any provision of a deed of trust prohibiting payment of a reconveyance fee by the grantor or beneficiary, or any provision of a deed of trust which limits or otherwise restricts the amount of a reconveyance fee to be charged or collected by the trustee. A trustee shall be entitled to refuse to reconvey a deed of trust until the trustee’s reconveyance fees and recording costs for recording the reconveyance instruments are paid in full. The trustee shall not be entitled to a foreclosure fee in the event of judicial foreclosure or work done prior to the recording of a notice of default. If the default is cured prior to the time of the last newspaper publication of the notice of sale, the trustee shall be paid a reasonable fee.
TITLE 45
LIENS, MORTGAGES AND PLEDGES
CHAPTER 15
TRUST DEEDS
45-1504. TRUSTEE OF TRUST DEED - - WHO MAY SERVE - - SUCCESSORS. (1) The trustee of a trust deed under this act shall be:
(a) Any member of the Idaho state bar;
(b) Any bank or savings and loan association authorized to do business under the laws of Idaho or the United States;
(c) An authorized trust institution having a charter under chapter 32, title 26, Idaho Code, or any corporation authorized to conduct a trust business under the laws of the United States; or
(d) A licensed title insurance agent or title insurance company authorized to transact business under the laws of the state of Idaho.
(2) The trustee may resign at its own election or be replaced by its beneficiary. The trustee shall give prompt written notice of its resignation to the beneficiary. The resignation of the trustee shall become effective upon the recording of the notice of resignation in each county in which the deed of trust is recorded. If a trustee is not appointed in the deed of trust, or upon the resignation, incapacity, disability, absence, or death of the trustee, or the election of the beneficiary to replace the trustee, the beneficiary shall appoint a trustee or a successor trustee. Upon recording the appointment of a successor trustee in each county in which the deed of trust is recorded, the successor trustee shall be vested with all powers of an original trustee.
PROPOSED
TITLE 45
LIENS, MORTGAGES AND PLEDGES
CHAPTER 15
TRUST DEEDS
45-1504. TRUSTEE OF TRUST DEED - - WHO MAY SERVE - - SUCCESSORS. (1) The trustee of a trust deed under this act shall must be:
(e) Any An attorney who is an active member of the Idaho state bar, or a law practice that includes an attorney who is an active member of the Idaho state bar;
(f) Any bank or savings and loan association authorized to do business under the laws of Idaho or the United States;
(g) An authorized trust institution having a charter under chapter 32, title 26, Idaho Code, or any corporation authorized to conduct a trust business under the laws of the United States; or
(h) A licensed title insurance agent or title insurance company authorized to transact business under the laws of the state of Idaho.
(2) The trustee may resign at its own election or be replaced by its beneficiary. The trustee shall give prompt written notice of its resignation to the beneficiary. The resignation of the trustee shall become effective upon the recording of the notice of resignation in each county in which the deed of trust is recorded. If a trustee is not appointed in the deed of trust, or upon the resignation, incapacity, disability, absence, or death of the trustee, or the election of the beneficiary to replace the trustee, the beneficiary shall appoint a trustee or a successor trustee. Upon recording the appointment of a successor trustee in each county in which the deed of trust is recorded, the successor trustee shall be vested with all powers of an original trustee.
(3) If a law practice is the trustee under subsection (1)(a) of this section, an attorney who is an active member of the Idaho state bar and is a shareholder, partner, member or employee of the law practice shall sign on the trustee’s behalf any document which is permitted or required to be signed under Idaho Code §§ 45-1502 to 45-1515. The attorney who signs the document shall make evident in the document the attorney’s name and Idaho state bar number and shall state in the document that the trustee has authorized the attorney to sign the document on the trustee’s behalf.
(4) If an attorney is the trustee under subsection (1)(a) of this section, another attorney who is an active member of the Idaho state bar and is a shareholder, partner, member or employee of the law practice in which the attorney practices law may sign on the trustee’s behalf any document that is permitted or required to be signed under Idaho Code §§ 45-1502 to 45-1515. The attorney who signs the document shall make evident in the document the attorney’s name and Idaho state bar number and shall state in the document that the trustee has authorized the attorney to sign the document on the trustee’s behalf.
ROBERT J. MAYNES
MAYNES TAGGART, PLLC
525 Park Ave. Suite 2E
P.O. Box 3005
Idaho Falls, Idaho 83403
(208) 552-6442
(208) 524-6095 fax
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> On Aug 3, 2016, at 8:52 AM, Robert Maynes <mayneslaw at hotmail.com> wrote:
>
> With the attachment.
>
> ROBERT J. MAYNES
> MAYNES TAGGART, PLLC
> 525 Park Ave. Suite 2E
> P.O. Box 3005
> Idaho Falls, Idaho 83403
> (208) 552-6442
> (208) 524-6095 fax
>
> Confidentiality Notice: This message is intended only for the use of the individual or entity to which it is addressed. It may contain information that is privileged, confidential and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, any dissemination or distribution of this communication to other than the intended recipient is strictly prohibited. If you have received this communication in error, please notify us immediately by reply email to the sender or collect telephone call to (208) 552-6442.
>
> Internal Revenue Service Circular 230 Disclosure: Please note that any discussion of or advice regarding United States tax matters contained herein (including any attachments hereto) does not meet the requirements necessary to be a "covered opinion" as defined in Internal Revenue Service Circular 230, and therefore, is not intended or written to be relied upon or used and cannot be relied upon or used for the purpose of avoiding federal tax penalties that may be imposed or for the purpose of promoting, marketing, or recommending any tax-related matters or advice to another party.
>
>
>> On Aug 3, 2016, at 7:35 AM, Robert Maynes <mayneslaw at hotmail.com <mailto:mayneslaw at hotmail.com>> wrote:
>>
>> Dear List Mates,
>> I received the email inquiry below due to my current service on the Section Board. Thus, I’m sharing via the list serve to see if any one has any thoughts, comments or concerns in response.
>> Kindest regards,
>> Rob
>>
>>
>>
>>> Begin forwarded message:
>>>
>>> From: David Swartley <dswartley at McCarthyHolthus.com>
>>> Subject: Idaho Trust Deeds Act amendment
>>> Date: August 2, 2016 at 3:17:53 PM MDT
>>> To: "mayneslaw at hotmail.com" <mayneslaw at hotmail.com>
>>>
>>> Robert,
>>> I am trying to get the attached amendment in front of the legislature next session and have been reaching out to groups that may have an interest in it for a preview and get comments on it. I’m not sure if the Commercial & Bankruptcy Section will have much to say about it but aside from the Real Property Section, this section is the only other section that might. Therefore I’m reaching out to you.
>>> Essentially the reason for the proposed amendment is to allow law practices to act as a trustee of a trust deed rather than only individual attorneys licensed by the state bar. As I.C. § 45-1506 currently provides, title companies, banks and savings and loans may act as trustees of a trust deed, but the statute does not prescribe which individuals at title companies, banks and savings and loans make execute documents and perform the duties of the trustee and, therefore, any authorized person at a title company, bank or savings and loan may execute documents, etc. My proposed amendment would revise that.
>>> If you have any comments or concerns, please let me know.
>>> Thanks for your time, Robert.
>>> David
>>>
>>> David M. Swartley | Attorney | Member State Bar of ID
>>> McCarthy ♦ Holthus LLP
>>> m. 702 W. Idaho St., Suite 1100 Boise, ID 83702
>>> d. 208.947.7264 | f. 208.947.5910 | c. 208.371-8700
>>> e. dswartley at mccarthyholthus.com <mailto:dswartley at mccarthyholthus.com> <mailto:dswartley at mccarthyholthus.com <mailto:dswartley at mccarthyholthus.com>>
>>> "Service Second to None"
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>>
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