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I am researching surplus funds laws and am trying to figure out a way not to be labeled a

Customer Question
foreclosure consultant so I can...
i am researching surplus funds laws and am trying to figure out a way not to be labeled a foreclosure consultant so I can help people recover funds from the trustees and the courts. Any ideas? Also i would like to learn how to review court records to find these cases, any ideas?
Submitted: 2 years ago.Category: Real Estate Law
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Answered in 21 minutes by:
5/5/2015
Real Estate Lawyer: Dimitry Esquire, Attorney replied 2 years ago
Dimitry Esquire
Dimitry Esquire, Attorney
Category: Real Estate Law
Satisfied Customers: 41,221
Experience: JA Mentor, multiple jurisdictions, specialize in business/contract disputes, estate creation & admin
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Thank you for your question. Please permit me to assist you with your concerns.
How exactly are you going to try to assist individuals--will you be simply providing consulting or some manner of representation? Why are you trying to avoid that label, if I may ask? Please advise.
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Customer reply replied 2 years ago
As I read the California civil code it seems that a "foreclosure consultant" is a non-licensed individual who is unable to perform certain tasks to help previous owners recover their surplus funds (for a fee), as these tasks are in violation of the civil code but if you are an attorney or a licensed real estate agent or financial consultant you can help people recover these monies legally while charging a fee. Part two of my question was where do I learn how to interpret court documents to determine if they are actually surplus funds cases?
Customer reply replied 2 years ago
I would be contacting them to advise them of their funds and would be negotiating with other claimants to see if we can buy them out to access more funds for the homeowner. We would also represent them in court after the trustee turns the case over to the court if they were unable to distribute the funds. If we go to court of course we would have to retain an attorney.
Real Estate Lawyer: Dimitry Esquire, Attorney replied 2 years ago
Thank you for your follow-up.
That appears that it would violate state law, I am afraid. Since you are putting yourself forth as an agent of the individuals, you would need to be licensed or be an attorney to do so. You can work for an attorney who is involved in such services but you cannot directly provide such services yourself.
In terms of where you can learn to interpret such documents on your own, you can obtain membership to online legal databases such as LexisNexis or Westlaw (LexisNexis would be better for someone in your position), and review past cases so as to educate yourself as to the statutes, codes, and also what forms and documentation is required for review. You can then use that knowledge to help evaluate such information, but I must warn you that this is exactly why someone generally has to be licensed or an attorney to perform such reviews--this is a fairly sophisticated service that doing without licensing will very likely get you into trouble very quickly.
Sincerely,
Dimitry, Esq.
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Customer reply replied 2 years ago
Am I able to do this as a licensed real estate agent, as the code seems to suggest?
Real Estate Lawyer: Dimitry Esquire, Attorney replied 2 years ago
Thank you for your follow-up.
Yes, it appears that being a real estate agent would permit you to become a consultant. This is the statute that governs--please review the specific exceptions, and also review the duties of what a consultant can and cannot do:
2945.1. The following definitions apply to this chapter:
(a) "Foreclosure consultant" means any person who makes any
solicitation, representation, or offer to any owner to perform for
compensation or who, for compensation, performs any service which the
person in any manner represents will in any manner do any of the
following:
(1) Stop or postpone the foreclosure sale.
(2) Obtain any forbearance from any beneficiary or mortgagee.
(3) Assist the owner to exercise the right of reinstatement
provided in Section 2924c.
(4) Obtain any extension of the period within which the owner may
reinstate his or her obligation.
(5) Obtain any waiver of an acceleration clause contained in any
promissory note or contract secured by a deed of trust or mortgage on
a residence in foreclosure or contained that deed of trust or
mortgage.
(6) Assist the owner to obtain a loan or advance of funds.
(7) Avoid or ameliorate the impairment of the owner's credit
resulting from the recording of a notice of default or the conduct of
a foreclosure sale.
(8) Save the owner's residence from foreclosure.
(9) Assist the owner in obtaining from the beneficiary, mortgagee,
trustee under a power of sale, or counsel for the beneficiary,
mortgagee, or trustee, the remaining proceeds from the foreclosure
sale of the owner's residence.
(b) A foreclosure consultant does not include any of the
following:
(1) A person licensed to practice law in this state when the
person renders service in the course of his or her practice as an
attorney at law.
(2) A person licensed under Division 3 (commencing with Section
12000) of the Financial Code when the person is acting as a prorater
as defined therein.
(3) A person licensed under Part 1 (commencing with Section 10000)
of Division 4 of the Business and Professions Code when the person
is acting under the authority of that license, as described in
Section 10131 or 10131.1 of the Business and Professions Code.
(4) A person licensed under Chapter 1 (commencing with Section
5000) of Division 3 of the Business and Professions Code when the
person is acting in any capacity for which the person is licensed
under those provisions.
(5) A person or his or her authorized agent acting under the
express authority or written approval of the Department of Housing
and Urban Development or other department or agency of the United
States or this state to provide services.
(6) A person who holds or is owed an obligation secured by a lien
on any residence in foreclosure when the person performs services in
connection with this obligation or lien.
(7) Any person licensed to make loans pursuant to Division 9
(commencing with Section 22000) of the Financial Code when the person
is acting under the authority of that license.
(8) Any person or entity doing business under any law of this
state, or of the United States relating to banks, trust companies,
savings and loan associations, industrial loan companies, pension
trusts, credit unions, insurance companies, or any person or entity
authorized under the laws of this state to conduct a title or escrow
business, or a mortgagee which is a United States Department of
Housing and Urban Development approved mortgagee and any subsidiary
or affiliate of the above, and any agent or employee of the above
while engaged in the business of these persons or entities.
(9) A person licensed as a residential mortgage lender or servicer
pursuant to Division 20 (commencing with Section 50000) of the
Financial Code, when acting under the authority of that license.
(c) Notwithstanding subdivision (b), any person who provides
services pursuant to paragraph (9) of subdivision (a) is a
foreclosure consultant unless he or she is the owner's attorney.
(d) "Person" means any individual, partnership, corporation,
limited liability company, association or other group, however
organized.
(e) "Service" means and includes, but is not limited to, any of
the following:
(1) Debt, budget, or financial counseling of any type.
(2) Receiving money for the purpose of distributing it to
creditors in payment or partial payment of any obligation secured by
a lien on a residence in foreclosure.
(3) Contacting creditors on behalf of an owner of a residence in
foreclosure.
(4) Arranging or attempting to arrange for an extension of the
period within which the owner of a residence in foreclosure may cure
his or her default and reinstate his or her obligation pursuant to
Section 2924c.
(5) Arranging or attempting to arrange for any delay or
postponement of the time of sale of the residence in foreclosure.
(6) Advising the filing of any document or assisting in any manner
in the preparation of any document for filing with any bankruptcy
court.
(7) Giving any advice, explanation, or instruction to an owner of
a residence in foreclosure which in any manner relates to the cure of
a default in or the reinstatement of an obligation secured by a lien
on the residence in foreclosure, the full satisfaction of that
obligation, or the postponement or avoidance of a sale of a residence
in foreclosure pursuant to a power of sale contained in any deed of
trust.
(8) Arranging or attempting to arrange for the payment by the
beneficiary, mortgagee, trustee under a power of sale, or counsel for
the beneficiary, mortgagee, or trustee, of the remaining proceeds to
which the owner is entitled from a foreclosure sale of the owner's
residence in foreclosure. Arranging or attempting to arrange for the
payment shall include any arrangement where the owner transfers or
assigns the right to the remaining proceeds of a foreclosure sale to
the foreclosure consultant or any person designated by the
foreclosure consultant, whether that transfer is effected by
agreement, assignment, deed, power of attorney, or assignment of
claim.
(9) Arranging or attempting to arrange an audit of any obligation
secured by a lien on a residence in foreclosure.
(f) "Residence in foreclosure" means a residence in foreclosure as
defined in Section 1695.1.
(g) "Owner" means a property owner as defined in Section 1695.1.
(h) "Contract" means any agreement, or any term thereof, between a
foreclosure consultant and an owner for the rendition of any service
as defined in subdivision (e).
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Dimitry Esquire
Dimitry Esquire
Dimitry Esquire, Attorney
Category: Real Estate Law
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