12 U.S.C. § 3752 — Definitions

Page 1562 TITLE 12—BANKS AND BANKING § 3751 1 See References in Text note below. CHAPTER 38A—SINGLE FAMILY MORTGAGE FORECLOSURE Sec. 3751. Findings and purpose. 3752. Definitions. 3753. Applicability. 3754. Designation of foreclosure commissioner. 3755. Prerequisites to foreclosure. 3756. Commencement of foreclosure. 3757. Notice of default and foreclosure sale. 3758. Service of notice of foreclosure sale. 3759. Presale reinstatement. 3760. Conduct of sale; adjournment. 3761. Foreclosure costs. 3762. Disposition of sale proceeds. 3763. Transfer of title and possession. 3764. Record of foreclosure and sale. 3765. Effect of sale. 3766. Computation of time. 3767. Severability. 3768. Deficiency judgment. § 3751. Findings and purpose (a) Findings The Congress finds that— (1) the disparate State laws under which mortgages are foreclosed on behalf of the Sec- retary covering 1- to 4-family residential prop- erties— (A) burden certain programs administered by the Secretary; (B) increase the costs of collecting obliga- tions; and (C) generally are a detriment to the com- munity in which the properties are located; (2) the long periods required to complete the foreclosure of such mortgages under certain State laws— (A) lead to deterioration in the condition of the properties involved; (B) necessitate substantial Federal holding expenditures; (C) increase the risk of vandalism, fire loss, depreciation, damage, and waste with respect to the properties; and (D) adversely affect the neighborhoods in which the properties are located; (3) these conditions seriously impair the ability of the Secretary to protect the Federal financial interest in the affected properties and frustrate attainment of the objectives of the underlying Federal program authority; (4) the availability of uniform and more ex- peditious procedures, with no right of redemp- tion in the mortgagor or others, for the fore- closure of these mortgages by the Secretary will tend to ameliorate these conditions; and (5) providing the Secretary with a non- judicial foreclosure procedure will reduce un- necessary litigation by removing many fore- closures from the courts if they contribute to overcrowded calendars. (b) Purpose The purpose of this chapter is to create a uni- form Federal foreclosure remedy for single fam- ily mortgages that— (1) are held by the Secretary pursuant to title I or title II of the National Housing Act [12 U.S.C. 1702 et seq., 1707 et seq.]; or (2) secure loans obligated by the Secretary under section 1452b 1 of title 42. (Pub. L. 103–327, title II, Sept. 28, 1994, 108 Stat. 2316.) Editorial Notes REFERENCES IN TEXT The National Housing Act, referred to in subsec. (b)(1), is act June 27, 1934, ch. 847, 48 Stat. 1246. Titles I and II of the Act are classified generally to sub- chapters I (§ 1702 et seq.) and II (§ 1707 et seq.), respec- tively, of chapter 13 of this title. For complete classi- fication of this Act to the Code, see section 1701 of this title and Tables. Section 1452b of title 42, referred to in subsec. (b)(2), was repealed by Pub. L. 101–625, title II, § 289(b)(1), Nov. 28, 1990, 104 Stat. 4128. CODIFICATION Section is based on section 802 of title VIII of S. 2281, One Hundred Third Congress, as reported July 13, 1994, which was enacted into law by Pub. L. 103–327. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 103–327, title II, Sept. 28, 1994, 108 Stat. 2316, provided in part that title VIII of S. 2281, One Hundred Third Congress, as reported July 13, 1994, which is clas- sified to this chapter, is incorporated into Pub. L. 103–327 and deemed enacted into law upon enactment of Pub. L. 103–327, which was approved Sept. 28, 1994. SHORT TITLE Section 801 of title VIII of S. 2281, One Hundred Third Congress, as reported July 13, 1994, which was enacted into law by Pub. L. 103–327, title II [title VIII, § 801], Sept. 28, 1994, 108 Stat. 2316, provided in part, that: ‘‘This title [enacting this chapter] may be cited as the ‘Single Family Mortgage Foreclosure Act of 1994’.’’ § 3752. Definitions For purposes of this chapter, the following definitions shall apply: (1) Bona fide purchaser The term ‘‘bona fide purchaser’’ means a purchaser for value in good faith and without notice of any adverse claim, and who acquires the security property free of any adverse claim. (2) County The term ‘‘county’’ has the same meaning as in section 2 of title 1. (3) Mortgage The term ‘‘mortgage’’ means a deed of trust, mortgage, deed to secure debt, security agree- ment, or any other form of instrument under which any property (real, personal or mixed), or any interest in property (including lease- holds, life estates, reversionary interests, and any other estates under applicable State law), is conveyed in trust, mortgaged, encumbered, pledged, or otherwise rendered subject to a lien for the purpose of securing the payment of money or the performance of an obligation. (4) Mortgage agreement The term ‘‘mortgage agreement’’ means the note or debt instrument and the mortgage in- strument, deed of trust instrument, trust deed, or instrument or instruments creating the mortgage, including any instrument incor- porated by reference therein and any instru- Page 1563 TITLE 12—BANKS AND BANKING § 3754 ment or agreement amending or modifying any of the foregoing. (5) Mortgagor The term ‘‘mortgagor’’ means the obligor, grantor, or trustee named in the mortgage agreement and, unless the context otherwise indicates, includes the current owner of record of the security property whether or not such owner is personally liable on the mortgage debt. (6) Owner The term ‘‘owner’’ means any person who has an ownership interest in property and in- cludes heirs, devises, executors, administra- tors, and other personal representatives, and trustees of testamentary trusts if the owner of record is deceased. (7) Person The term ‘‘person’’ includes any individual, group of individuals, association, partnership, corporation, or organization. (8) Record; recorded The terms ‘‘record’’ and ‘‘recorded’’ include ‘‘register’’ and ‘‘registered’’ in the instance of registered land. (9) Security property The term ‘‘security property’’ means the property (real, personal or mixed) or an inter- est in property (including leaseholds, life es- tates, reversionary interests, and any other es- tates under applicable State law), together with fixtures and other interests subject to the lien of the mortgage under applicable State law. (10) Single family mortgage The term ‘‘single family mortgage’’ means a mortgage that covers property on which there is located a 1- to 4-family residence, and that— (A) is held by the Secretary pursuant to title I or title II of the National Housing Act [12 U.S.C. 1702 et seq., 1707 et seq.]; or (B) secures a loan obligated by the Sec- retary under section 1452b of title 42, as it existed before the repeal of that section by section 12839 of title 42 (except that a mort- gage securing such a loan that covers prop- erty containing nonresidential space and a 1- to 4-family dwelling shall not be subject to this chapter). (11) State The term ‘‘State’’ means— (A) the several States; (B) the District of Columbia; (C) the Commonwealth of Puerto Rico; (D) the United States Virgin Islands; (E) Guam; (F) American Samoa; (G) the Northern Mariana Islands; (H) the Trust Territory of the Pacific Is- lands; and (I) Indian tribes, as defined by the Sec- retary. (Pub. L. 103–327, title II, Sept. 28, 1994, 108 Stat. 2316.) Editorial Notes REFERENCES IN TEXT The National Housing Act, referred to in par. (10)(A), is act June 27, 1934, ch. 847, 48 Stat. 1246. Titles I and II of the Act are classified generally to subchapters I (§ 1702 et seq.) and II (§ 1707 et seq.), respectively, of chapter 13 of this title. For complete classification of this Act to the Code, see section 1701 of this title and Tables. CODIFICATION Section is based on section 803 of title VIII of S. 2281, One Hundred Third Congress, as reported July 13, 1994, which was enacted into law by Pub. L. 103–327. Executive Documents TERMINATION OF TRUST TERRITORY OF THE PACIFIC ISLANDS For termination of Trust Territory of the Pacific Is- lands, see note set out preceding section 1681 of Title 48, Territories and Insular Possessions. § 3753. Applicability Single family mortgages encumbering real es- tate located in any State may be foreclosed by the Secretary in accordance with this chapter, or pursuant to other foreclosure procedures available, at the option of the Secretary. (Pub. L. 103–327, title II, Sept. 28, 1994, 108 Stat. 2316.) Editorial Notes CODIFICATION Section is based on section 804 of title VIII of S. 2281, One Hundred Third Congress, as reported July 13, 1994, which was enacted into law by Pub. L. 103–327. § 3754. Designation of foreclosure commissioner (a) In general The Secretary may designate a person or per- sons to serve as a foreclosure commissioner or commissioners for the purpose of foreclosing upon a single family mortgage. (b) Power of sale A foreclosure commissioner designated under this section shall have a nonjudicial power of sale. (c) Qualifications The foreclosure commissioner, if a natural person, shall be a resident of the State in which the security property is located and, if not a natural person, the foreclosure commissioner must be duly authorized to transact business under laws of the State in which the security property is located. No person shall be des- ignated as a foreclosure commissioner unless that person is responsible, financially sound, and competent to conduct a foreclosure. (d) Designation procedure (1) Written designation The Secretary may designate a foreclosure commissioner by executing a written designa- tion stating the name and business or residen- tial address of the commissioner, except that if a person is designated in his or her capacity as an official or employee of a government or