Text: HF02411 Text: HF02413 Text: HF02400 - HF02499 Text: HF Index Bills and Amendments: General Index Bill History: General Index
PAG LIN 1 1 Section 1. Section 535.2, subsection 2, paragraph a, 1 2 subparagraph (2), Code 2001, is amended by striking the 1 3 subparagraph. 1 4 Sec. 2. Section 535.2, subsection 2, paragraph a, 1 5 subparagraph (5), Code 2001, is amended to read as follows: 1 6 (5) A person borrowing money or obtaining credit for 1 7 business or agricultural purposes, or a person borrowing money 1 8 or obtaining creditin an amount which exceeds twenty-five1 9thousand dollarsfor personal, family, or household purposes 1 10 in a transaction that is not subject to the provisions of 1 11 chapter 537. As used in this paragraph, "agricultural 1 12 purpose" means as defined in section 535.13, and "business 1 13 purpose" includes but is not limited to a commercial, service, 1 14 or industrial enterprise carried on for profit and an 1 15 investment activity. 1 16 Sec. 3. Section 535.2, subsection 2, paragraph b, 1 17 subparagraph (6), Code 2001, is amended to read as follows: 1 18 (6) With respect to any transaction referred to in 1 19 paragraph "a" of this subsection, this subsection supersedes 1 20 any interest-rate or finance-charge limitations contained in 1 21the Code, including but not limited to this chapter and1 22 chapters 321, 322, 524, 533, 534, and 536A, and 537. 1 23 Sec. 4. Section 535.8, subsection 2, paragraph a, Code 1 24 2001, is amended to read as follows: 1 25 a. A lender may collect, in connection withaan original 1 26 loan made pursuant to a written agreement executed by the 1 27 borrower on or after July 1,19832002, or in connection with 1 28 a loan made pursuant to a written commitment by the lender 1 29 mailed or delivered to the borrower on or after that date,a1 30loan processing feepoints, however denominated, including but 1 31 not limited to points, processing fees, discount fees, loan 1 32 charges, or origination fees, in an amount which does not 1 33 exceed two percent of an amount which is equal to the loan 1 34 principal; exceptthat to the extent of an assumption byas 1 35 provided in section 537.2501, subsection 1, paragraph "e", 2 1 subparagraph (5), in which case the points shall not exceed 2 2 two percent of the amount financed. Where a new borrower 2 3 assumes the obligation to make payments under a prior loan, or 2 4 to the extent that the loan principal is used to refinance a 2 5 prior loan between the same borrower and the same lender, the 2 6 lender may collect aloan processingfee which does not exceed 2 7 an amount which is a reasonable estimate of the expenses of 2 8 processing the loan assumption or refinancing but which does 2 9 not exceed one percent of the unpaid balance of the loan that 2 10 is assumed or refinanced. In addition, a lender may collect 2 11 from a borrower, a seller of property, another lender, or any 2 12 other person, or from any combination of these persons, in 2 13 contemplation of or in connection with a loan, a commitment 2 14 fee, closing fee, or both, that is agreed to in writing by the 2 15 lender and the persons from whom the charges are to be 2 16 collected. A loan fee collected under this paragraph is 2 17 compensation to the lender solely for the use of money, 2 18 notwithstanding any provision of the agreement to the 2 19 contrary. However, a loan fee collected under this paragraph 2 20 shall be disregarded for purposes of determining the maximum 2 21 charge permitted by section 535.2 or 535.9, subsection 2. The 2 22 collection in connection with a loan of a loan origination 2 23 fee, closing fee, commitment fee, or similar charge is 2 24 prohibited other than expressly authorized by this paragraph 2 25 or a payment reduction fee authorized by subsection 3. 2 26 Sec. 5. Section 537.1102, subsection 2, Code 2001, is 2 27 amended by adding the following new paragraph: 2 28 NEW PARAGRAPH. h. Curb the incidence of predatory lending 2 29 which threatens homeownership, and which appears to be 2 30 primarily targeted toward elderly and other vulnerable 2 31 borrowers, and which further threatens the viability of 2 32 communities in which such lending occurs. 2 33 Sec. 6. Section 537.1301, Code 2001, is amended by adding 2 34 the following new subsection: 2 35 NEW SUBSECTION. 5A. "Broker" means a person who arranges 3 1 or negotiates, or offers to arrange or negotiate, or issues or 3 2 offers to issue any of the following: 3 3 a. A loan for placement with a lender. 3 4 b. Four or more consumer credit transactions or 3 5 commitments for four or more consumer credit transactions. 3 6 c. More than one transaction subject to the federal Home 3 7 Ownership and Equity Protection Act of 1994, 15 U.S.C. } 3 8 1602(aa) et seq., and related regulation Z. 3 9 Sec. 7. Section 537.1301, subsection 12, paragraph a, 3 10 subparagraph (5), Code 2001, is amended to read as follows: 3 11 (5) With respect to a sale of goods or services, the 3 12 amount financed does not exceed twenty-five thousand dollars, 3 13 unless a security interest is or will be acquired in real 3 14 property or in personal property used or expected to be used 3 15 as the principal dwelling of the consumer. For purposes of 3 16 this section, a security interest includes an interest in such 3 17 property that arises solely by operation of law. 3 18 Sec. 8. Section 537.1301, subsection 14, paragraph a, 3 19 subparagraph (5), Code 2001, is amended to read as follows: 3 20 (5) The amount financed does not exceed twenty-five 3 21 thousand dollars, unless a security interest is or will be 3 22 acquired in real property or in personal property used or 3 23 expected to be used as the principal dwelling of the consumer. 3 24 For purposes of this section, a security interest includes an 3 25 interest in such property that arises solely by operation of 3 26 law. 3 27 Sec. 9. Section 537.1301, subsection 14, paragraph b, 3 28 subparagraph (2), Code 2001, is amended to read as follows: 3 29 (2) A debt which is secured by a first lien on real 3 30 property and which is incurred primarily for the purpose of 3 31 acquiring that real property,or refinancing a contract for3 32deed to that real property,or constructing on that real 3 33 property a building containing one or more dwelling units. 3 34 Sec. 10. Section 537.1301, subsection 14, paragraph c, 3 35 subparagraph (2), Code 2001, is amended to read as follows: 4 1 (2) Loan proceeds used to refinance or pay a prior loan 4 2 owed by the same borrower are incurred for the same purposes 4 3 and in the same proportion as the principal of the loan 4 4 refinanced or paid. If this provision is the basis for 4 5 excluding a transaction from the definition of consumer loan 4 6 under paragraph "b", subparagraph (2), the refinancing 4 7 transaction is excluded only where all of the following 4 8 conditions are met: 4 9 (a) New advances are not made as part of the refinancing. 4 10 (b) The refinancing is by the same creditor and secured by 4 11 the same property. 4 12 (c) The terms of the refinanced loan are no less favorable 4 13 to the consumer than the terms of the original loan. "Terms" 4 14 includes the interest rate, the annual percentage rate, the 4 15 amount of closing costs and fees, penalties including 4 16 prepayment penalties, the term of payment, and the monthly 4 17 payment. 4 18 Sec. 11. Section 537.1301, Code 2001, is amended by adding 4 19 the following new subsections: 4 20 NEW SUBSECTION. 17A. "Dwelling" means a residential 4 21 structure that contains one to four units, whether or not that 4 22 structure is attached to real property, and includes an 4 23 individual condominium unit, mobile home, manufactured home or 4 24 trailer, if such a structure is used as a residence. 4 25 NEW SUBSECTION. 21A. "Home loan" means both mortgages and 4 26 other loans secured by an interest in a dwelling. 4 27 NEW SUBSECTION. 38A. "Same creditor" means a person who 4 28 is both the originator of the first consumer loan, the holder 4 29 of a subsequent consumer loan, if the consumer loan for 4 30 refinancing or consolidating the consumer debt is different, 4 31 and includes successors and assigns. 4 32 Sec. 12. Section 537.2202, Code 2001, is amended by adding 4 33 the following new subsection: 4 34 NEW SUBSECTION. 3. Where a sale is documented as open-end 4 35 credit but the features and terms or other circumstances 5 1 demonstrate that the sale does not meet the definition of 5 2 open-end credit, the sale will not be treated according to the 5 3 rules for open-end credit under this chapter, but the 5 4 transaction will be treated according to the true nature of 5 5 the transaction, under this chapter and any other applicable 5 6 chapter, including chapter 535. Factors to be considered 5 7 include, but are not limited to, the amount of money the 5 8 consumer originally requested, the amount of the first advance 5 9 or the highest outstanding balance or the amount of the total 5 10 available credit. The full amount of the available credit is 5 11 considered only to the extent that it is reasonable to expect 5 12 that the consumer might use the full amount of credit. 5 13 Sec. 13. Section 537.2402, Code 2001, is amended by adding 5 14 the following new subsection: 5 15 NEW SUBSECTION. 3. Where a loan is documented as open-end 5 16 credit but the features and terms or other circumstances 5 17 demonstrate that the loan does not meet the definition of 5 18 open-end credit, the loan is subject to the rules for open-end 5 19 credit under this chapter and any other applicable chapter, 5 20 including chapter 535. Factors to be considered include, but 5 21 are not limited to, the amount of money the consumer 5 22 originally requested, the amount of the first advance or the 5 23 highest outstanding balance or the amount of the total 5 24 available credit. The full amount of the credit line is 5 25 considered only to the extent that it is reasonable to expect 5 26 that the consumer might use the full amount of credit. 5 27 Sec. 14. Section 537.2501, subsection 1, paragraph e, Code 5 28 2001, is amended by adding the following new subparagraph: 5 29 NEW SUBPARAGRAPH. (5) With respect to a consumer credit 5 30 transaction secured by an interest in real estate or personal 5 31 property used or expected to be used as the consumer's primary 5 32 dwelling which also constitutes a loan as defined in section 5 33 535.8, subsection 1, and in which the amount financed exceeds 5 34 twenty-five thousand dollars, the creditor may impose no more 5 35 than two points, by whatever name denominated, including, but 6 1 not limited to, points, processing fees, discount fees, loan 6 2 charges, or origination fees, in an amount which does not 6 3 exceed two percent of the amount financed. 6 4 Sec. 15. Section 537.2501, subsection 2, Code 2001, is 6 5 amended to read as follows: 6 6 2. An additional charge may be made for insurance written 6 7 in connection with the transaction, except for a home loan, as 6 8 follows: 6 9 Sec. 16. Section 537.2501, Code 2001, is amended by adding 6 10 the following new subsection: 6 11 NEW SUBSECTION. 2A. A creditor making a home loan shall 6 12 not finance, directly or indirectly, any credit life, credit 6 13 disability, credit unemployment, or credit property insurance, 6 14 or any other life or health insurance or casualty insurance, 6 15 or any payments directly or indirectly for any debt 6 16 cancellation or suspension agreement or contract, except that 6 17 insurance premiums or debt cancellation fees calculated and 6 18 paid on a monthly basis shall not be considered financed by 6 19 the creditor. 6 20 Sec. 17. NEW SECTION. 537.2504A FLIPPING PROHIBITED IN 6 21 HOME LOANS. 6 22 1. For purposes of this section, "flipping a loan" means 6 23 the making of a home loan to a consumer that refinances an 6 24 existing loan secured by real or personal property used as a 6 25 dwelling when the refinanced loan does not have reasonable, 6 26 tangible net benefit to the consumer, considering all of the 6 27 circumstances, including the terms of both the existing and 6 28 refinanced loans, the cost of the refinanced loan, and the 6 29 consumer's circumstances. 6 30 2. A creditor, broker, or assignee shall not engage in or 6 31 participate in the unfair practice of flipping a loan secured 6 32 by real estate or personal property used or intended to be 6 33 used as a consumer's principal dwelling. 6 34 3. The following types of refinancing of home loans shall 6 35 be presumed to be flipping a loan: 7 1 a. The primary tangible benefit is an interest rate lower 7 2 than the interest rate or rates on debts satisfied or 7 3 refinanced in connection with the home loan, and it will take 7 4 more than four years for the consumer to recoup the costs of 7 5 the points and fees and other closing costs through savings 7 6 resulting from the lower interest rate. 7 7 b. The home loan refinances an existing home loan that is 7 8 a special mortgage originated, subsidized, or guaranteed by or 7 9 through a state, tribal or local government, or nonprofit 7 10 organization, which either bears a below-market interest rate 7 11 at the time the home loan was originated, or has nonstandard 7 12 payment terms beneficial to the consumer, such as payments 7 13 that vary with income, are limited to a percentage of income, 7 14 or where no payments are required under specified conditions, 7 15 and where, as a result of the refinancing, the consumer will 7 16 lose one or more of the benefits of the special mortgage. 7 17 c. More than fifty percent of the prior debt being 7 18 refinanced bears a lower interest rate under the existing home 7 19 loan than under the refinanced home loan. 7 20 Sec. 18. Section 537.2509, Code 2001, is amended to read 7 21 as follows: 7 22 537.2509 RIGHT TO PREPAY. 7 23 1. Subject to the provisions on prepayment and minimum 7 24 charge under section 537.2510, the consumer may prepay in full 7 25 the unpaid balance of a consumer credit transaction, other 7 26 than a consumer lease or a consumer rental purchase agreement, 7 27 at any time, without penalty. 7 28 2. For transactions which are high-cost, high-fee mortgage 7 29 transactions as defined by the federal Home Ownership and 7 30 Equity Protection Act of 1994, 15 U.S.C. } 1602(aa) et seq., 7 31 and federal reserve board regulations enacted pursuant 7 32 thereto, this prohibition on prepayment penalties applies to 7 33 alternative mortgages as defined by 12 U.S.C. } 3802. 7 34 Sec. 19. Section 537.3308, Code Supplement 2001, is 7 35 amended to read as follows: 8 1 537.3308 BALLOON PAYMENTS. 8 2 1. Except as provided insubsectionsubsections 2 and 3, 8 3 if any scheduled payment of a consumer credit transaction is 8 4 more than twice as large as the average of earlier scheduled 8 5 payments, the consumer has the right to refinance the amount 8 6 of that payment at the time it is due without penalty, as 8 7 provided in section 537.2504. The terms of the refinancing 8 8 shall be no less favorable to the consumer than the terms of 8 9 the original transaction. 8 10 2. This section does not apply to any of the following: 8 11 a. A consumer lease. 8 12 b. A transaction pursuant to open end credit. 8 13 c. A transaction to the extent that the payment schedule 8 14 is adjusted to the seasonal or irregular income or scheduled 8 15 payments of obligations of the consumer. 8 16 d. A transaction of a class defined by rule of the 8 17 administrator as not requiring for the protection of the 8 18 consumer a right to refinance as provided in this section. 8 19 e. A consumer loan in which the amount financed exceeds 8 20 five thousand dollars and is secured by an interest in land. 8 21 f. A consumer rental purchase agreement. 8 22 g. A consumer loan secured by a certificate of title in a 8 23 motor vehicle. 8 24 3. Balloon payments resulting from negatively amortizing 8 25 repayment terms are prohibited. 8 26 Sec. 20. NEW SECTION. 537.3308A NEGATIVE AMORTIZATION 8 27 PROHIBITED. 8 28 Except in a reverse mortgage, a consumer credit transaction 8 29 shall not include payment terms under which the outstanding 8 30 principal balance will increase at any time over the course of 8 31 the consumer credit transaction because the regular periodic 8 32 payments do not cover the full amount of the interest due. 8 33 Sec. 21. NEW SECTION. 537.3312 UNFAIR HOME LOAN 8 34 PRACTICES BY BROKERS PROHIBITED. 8 35 1. A broker shall not arrange or issue a home loan that 9 1 violates the provisions of this chapter, section 714.16, 9 2 chapter 535, 15 U.S.C. } 1601 et seq., or 12 U.S.C. } 2601, or 9 3 rules or regulations adopted pursuant to any such statute. 9 4 2. A broker shall not arrange or issue a home loan if the 9 5 broker does not reasonably believe at the time the home loan 9 6 is consummated that the consumer will be able to make the 9 7 scheduled payments to repay the home loan, including any 9 8 reasonably anticipated increases under a home loan that 9 9 provides a period of a lower introductory interest rate and 9 10 balloon payments, based upon a consideration of the consumer's 9 11 current and expected income, current obligations, employment 9 12 status, and other financial resources, other than the 9 13 consumer's equity in the home that secures repayment of the 9 14 debt. 9 15 A consumer shall be presumed to be able to repay the 9 16 obligation if, at the time the home loan is consummated, or at 9 17 the time of the first rate adjustment under a home loan with a 9 18 lower introductory interest rate, both of the following apply: 9 19 a. The consumer's scheduled monthly payments on the home 9 20 loan, including principal, interest, taxes, insurance and 9 21 assessments, combined with the scheduled payments for all 9 22 other debt, do not exceed fifty percent of the consumer's 9 23 documented and verified monthly gross income. 9 24 b. The consumer has sufficient residual income, as defined 9 25 in the guidelines established in 38 C.F.R. } 36.5447(e) and VA 9 26 form 26-6393 to pay essential monthly expenses after paying 9 27 the scheduled payments and any additional debt. 9 28 This subsection applies only to consumers whose income, as 9 29 reported on the application that the broker submits to 9 30 lenders, is no greater than one hundred twenty percent of the 9 31 median family income for Iowa, as defined by the director of 9 32 the United States office of management and budget. For 9 33 purposes of this section, the median family income shall be 9 34 derived from the most recent estimates made available by the 9 35 United States department of housing and urban development, at 10 1 the time the application is received. For purposes of 10 2 determining median income, only the income of the consumer 10 3 shall be considered. 10 4 3. A broker shall not arrange or issue a home loan with an 10 5 interest rate higher than appropriate for the consumer for the 10 6 purpose of increasing the broker's compensation. 10 7 Sec. 22. Section 537.5201, subsection 1, unnumbered 10 8 paragraph 1, Code 2001, is amended to read as follows: 10 9 The consumer, other than a lessee in a consumer rental 10 10 purchase agreement, or a consumer who has entered into a home 10 11 loan subject to this chapter, has a cause of action to recover 10 12 actual damages and in addition a right in an action other than 10 13 a class action to recover from the person violating this 10 14 chapter a penalty in an amount determined by the court, but 10 15 not less than one hundred dollars nor more than one thousand 10 16 dollars, if a person has violated the provisions of this 10 17 chapter relating to any of the following: 10 18 Sec. 23. Section 537.5201, Code 2001, is amended by adding 10 19 the following new subsection: 10 20 NEW SUBSECTION. 1A. a. A person found by a preponderance 10 21 of the evidence to have violated this chapter with respect to 10 22 a home loan subject to this chapter shall be liable to the 10 23 consumer or other person obligated on the home loan for all of 10 24 the following: 10 25 (1) Actual damages, including consequential and incidental 10 26 damages. The borrower shall not be required to demonstrate 10 27 reliance in order to receive actual damages. 10 28 (2) Liquidated damages equal to the finance charges agreed 10 29 to in the home loan agreement, plus ten percent of the amount 10 30 financed. 10 31 (3) Punitive damages, when the violation was malicious or 10 32 reckless. 10 33 (4) Costs and reasonable attorney fees. 10 34 b. A consumer or other person obligated on the home loan 10 35 may be granted injunctive, declaratory, and such other 11 1 equitable relief as the court deems appropriate in an action 11 2 to enforce compliance with this chapter. 11 3 c. The intentional violation of any provision of this 11 4 chapter, or any related rule or regulation, renders the home 11 5 loan agreement voidable, and the creditor shall have no right 11 6 to collect, receive, or retain any principal, interest, or 11 7 other charges whatsoever with respect to the loan, and the 11 8 consumer may recover any payments made under the agreement. 11 9 d. The right of recision granted under 15 U.S.C. } 1602 et 11 10 seq. for violations of that law and all other remedies 11 11 provided under this chapter shall be available to a consumer 11 12 and any other person obligated on the home loan by way of 11 13 recoupment against a party foreclosing on the home loan or 11 14 collecting on the home loan, at any time during the term of 11 15 the home loan. 11 16 e. The remedies provided in this section are not intended 11 17 to be the exclusive remedies available to a consumer. 11 18 Sec. 24. NEW SECTION. 654.17 RECOUPMENT. 11 19 For any borrower who has the right of recision pursuant to 11 20 15 U.S.C. } 1601 et seq., the right shall be available by way 11 21 of recoupment against a party foreclosing on a home loan, as 11 22 defined in section 537.1301, or collecting on the home loan, 11 23 at any time during the term of the home loan. 11 24 Sec. 25. Section 654.25, Code 2001, is amended to read as 11 25 follows: 11 26 654.25 APPLICATION OF OTHER STATUTES. 11 27 If the plaintiff has elected foreclosure without 11 28 redemption, chapter 628 does not apply. A provision in a 11 29 mortgage permitted by section 628.26 or 628.27 shall not be 11 30 construed as an agreement by the mortgagee not to elect 11 31 foreclosure without redemption. The election may be made in 11 32 any petition filed on or after June 4, 1987. The election for 11 33 foreclosure without redemption is not a waiver of the 11 34 plaintiff's rights under section 654.6 except as provided in 11 35 section 654.26. 12 1 For any borrower who has the right of recision pursuant to 12 2 15 U.S.C. } 1601 et seq., the right shall be available by way 12 3 of recoupment against a party seeking to foreclose under this 12 4 alternative procedure on the home loan, as defined in section 12 5 537.1301, or collecting on the home loan, at any time during 12 6 the term of the home loan. 12 7 EXPLANATION 12 8 This bill amends various provisions under Code chapter 537, 12 9 the consumer credit code, and related Code sections in other 12 10 Code chapters, to address practices commonly known as 12 11 predatory lending. 12 12 The bill amends Code section 537.1102 to provide that one 12 13 of the stated purposes of the Act is to curb predatory 12 14 lending. 12 15 The bill amends Code section 537.1301, subsections 12 and 12 16 14, to provide that the $25,000 limit that otherwise applies 12 17 on transactions under the uniform consumer credit code does 12 18 not apply when a consumer's dwelling is used to secure a 12 19 transaction. The bill also amends subsection 14 regarding 12 20 refinancing by the same creditor. 12 21 The bill also adds several new definitions to Code section 12 22 537.1301: "broker", dwelling", "home loan", and "same 12 23 creditor". 12 24 The bill amends Code sections 537.2202 and 537.2404 to 12 25 limit the treatment of a transaction as open-end credit when 12 26 the features and circumstances demonstrate that it is not 12 27 open-end credit. 12 28 Code section 537.2501 provides that if a consumer credit 12 29 transaction is secured by an interest in a consumer's 12 30 dwelling, the creditor may impose no more than two points. 12 31 The bill also prohibits a creditor from charging for single- 12 32 premium credit insurance written in connection with home 12 33 loans. 12 34 New Code section 537.2504A prohibits flipping in home loan 12 35 transactions. The section defines "flipping" to be the making 13 1 of a home loan to a borrower that refinances an existing home 13 2 loan secured by a dwelling when the new loan does not give the 13 3 consumer a net benefit considering all of the circumstances. 13 4 Certain kinds of refinancing are presumed to be flipping, and 13 5 are listed in the Code section. 13 6 Code section 537.2509 provides that a consumer may prepay 13 7 the unpaid balance on a consumer credit transaction other than 13 8 a consumer lease without penalty, and the bill amends this 13 9 provision to apply to "alternative mortgages" as defined under 13 10 federal law. 13 11 New Code section 537.3308A prohibits negative 13 12 amortizations. Code section 537.3308 is amended to prohibit 13 13 balloon payments resulting from negatively amortizing 13 14 repayment terms. 13 15 New Code section 537.3312 prohibits unfair practices by 13 16 brokers, including arranging or issuing any home loan that 13 17 violates the consumer credit code and related laws, arranging 13 18 or issuing any home loan that the broker does not think the 13 19 consumer can pay, and arranging or issuing any home loan with 13 20 an interest rate higher than appropriate for the consumer for 13 21 the purpose of increasing the broker's compensation. 13 22 The bill amends Code section 537.5201 also to provide that 13 23 a consumer who has entered into a home loan subject to Code 13 24 chapter 537 has a cause of action if certain Code sections are 13 25 violated. 13 26 The bill amends Code section 537.5201 specifically to 13 27 provide remedies for a consumer whose rights under the Code 13 28 chapter have been violated with respect to a home loan. The 13 29 consumer may recover actual damages, liquidated damages, 13 30 punitive damages when the violation was malicious or reckless, 13 31 and costs and reasonable attorney fees. Equitable relief is 13 32 also available, as is the right of recission under federal 13 33 law. 13 34 Related amendments are made in Code chapters 535 and 654 to 13 35 reflect the changes made in Code chapter 537. 14 1 LSB 5772YH 79 14 2 jj/pj/5
Text: HF02411 Text: HF02413 Text: HF02400 - HF02499 Text: HF Index Bills and Amendments: General Index Bill History: General Index
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