§454F-42 Statute of limitation; recovery from fund.

670 words·~3 min read·/hi/454f-42

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(a)No action for a judgment that subsequently results in an order for collection from the mortgage loan recovery fund shall be commenced later than six years from the accrual of the cause of action. When any aggrieved person commences an action for a judgment that may result in collection from the mortgage loan recovery fund, the aggrieved person shall notify the commissioner in writing at the time of the commencement of the action and shall submit to the commissioner any documents required by the commissioner pursuant to rules issued in accordance with chapter 91.

(b)When any aggrieved person receives a valid judgment upon the grounds of fraud, misrepresentation, or deceit that occurred before the effective date of section 454F-41 against any licensee from any circuit or district court where the violation occurred, the aggrieved person shall proceed against the bond covering the license that was in force prior to the enactment of section 454F-41 and establishment of the mortgage loan recovery fund.

(c)The court shall proceed upon an application to recover from the mortgage loan recovery fund in a summary manner and, at hearing, the aggrieved person shall be required to show:

(1)The person is not a spouse of the judgment debtor or the personal representative of a spouse of the judgment debtor;

(2)The person has complied with all the requirements of this section;

(3)The person has obtained a judgment pursuant to section 454F-41(a) that states the amount of the judgment and the amount owed on the judgment debt as of the date of the application;

(4)The person has made all reasonable searches and inquires to ascertain whether the judgment debtor is possessed of real or personal property or other assets liable to be sold or applied in satisfaction of the judgment; and

(A)The search has uncovered no personal or real property or other assets liable to be sold or applied; or

(B)The search has uncovered personal or real property or other assets liable to be sold or applied, the person has taken all necessary action and completed all necessary proceedings for the realization thereof, and the amount realized was insufficient to satisfy the judgment; provided that the person shall state the amount realized and the balance remaining due on the judgment after application of the amount realized; and

(5)That where the licensee is a judgment debtor in a bankruptcy proceeding, the aggrieved person has obtained an order from the bankruptcy court declaring the judgment against the licensee to be non-dischargeable.

(d)Upon hearing, if the court is satisfied of the truth of all matters required by subsection

(c)and that the aggrieved person has fully pursued and exhausted all remedies available to the person for recovering the amount awarded by the judgment of the court, the court shall issue an order directing the commissioner to pay from the mortgage loan recovery fund whatever sum the court finds to be payable upon the claim in accordance with the limitations contained in this section.

(e)In addition to the procedure provided in subsections

(c)and (d), the commissioner may also consider applications to recover from the mortgage loan recovery fund. An aggrieved person who has obtained a final judgment from the court may submit the person's application to the commissioner. If the commissioner is satisfied as to the truth of the application, and that, despite reasonable efforts the person has been unable to recover on the judgment, the commissioner may issue an order approving payment from the mortgage loan recovery fund.

(f)Notwithstanding any other provision, the liability of the mortgage loan recovery fund shall not exceed the sum of $100,000 against any one licensee. [L 2010, c 84, pt of §3; am L 2011, c 194, §14; am L 2022, c 64, §2]

Note

References to effective date or enactment of section 454F-41 in subsection (b): Section 454F-41 was enacted by L 2010, c 84, pt of §3 and effective July 1, 2010.