Senate File 541 - Reprinted



                                       SENATE FILE       
                                       BY  COMMITTEE ON COMMERCE

                                       (SUCCESSOR TO SF 313)


    Passed Senate, Date               Passed House,  Date             
    Vote:  Ayes        Nays           Vote:  Ayes        Nays         
                 Approved                            

                                      A BILL FOR

  1 An Act relating to consumer protection in specified home loans.
  2 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
  3 TLSB 2528SV 82
  4 rn/gg/14

PAG LIN



  1  1    Section 1.  NEW SECTION.  714C.1  DEFINITIONS.
  1  2    As used in this chapter, unless the context otherwise
  1  3 requires:
  1  4    1.  "Consumer home loan" means a loan, including a home
  1  5 equity line of credit as defined in section 535.10, in which
  1  6 the borrower is a natural person, the loan proceeds are to be
  1  7 used primarily for personal, family, or household purposes,
  1  8 and the loan is secured by a mortgage or deed of trust upon
  1  9 residential real property as defined in section 535B.1.
  1 10 Consumer home loan includes a loan used to purchase
  1 11 residential real property and a refinancing of an existing
  1 12 consumer home loan, but specifically excludes reverse mortgage
  1 13 transactions.
  1 14    2.  "Lender" means a person who makes a loan.
  1 15    3.  "Mortgage banker" means the same as defined in section
  1 16 535B.1, and includes natural persons required to be registered
  1 17 under section 535B.4A.
  1 18    4.  "Mortgage broker" means the same as defined in section
  1 19 535B.1, and includes natural persons required to be registered
  1 20 under section 535B.4A.
  1 21    5.  "Person" means the same as defined in section 535B.1.
  1 22    6.  "Reverse mortgage transaction" means a loan for a
  1 23 definite or indefinite term secured by a first mortgage or
  1 24 first deed of trust on the principal residence of the
  1 25 mortgagor located in Iowa, the proceeds of which are disbursed
  1 26 to the mortgagor in one or more lump sums, or in equal or
  1 27 unequal installments, either directly by the lender or the
  1 28 lender's agent, and that requires no repayment until a future
  1 29 time, upon the earliest occurrence of one or more events
  1 30 specified in the reverse mortgage loan contract such as the
  1 31 sale of the property or the death of the borrower.
  1 32    Sec. 2.  NEW SECTION.  714C.2  CONSUMER PROTECTIONS IN
  1 33 CERTAIN HOME LOANS.
  1 34    In any consumer home loan, a lender, mortgage banker, or
  1 35 mortgage broker, shall not:
  2  1    1.  Recommend or encourage default on an existing loan or
  2  2 other debt prior to and in connection with the closing or
  2  3 planned closing of a consumer home loan that refinances all or
  2  4 any portion of such existing loan or debt.
  2  5    2.  Knowingly misrepresent to a borrower the borrower's
  2  6 credit rating or credit status.
  2  7    3.  Knowingly misrepresent, inflate, or fabricate, or
  2  8 encourage a borrower to misrepresent, inflate, or fabricate,
  2  9 the source or amount of a borrower's actual income or assets
  2 10 in the application or underwriting process of a consumer home
  2 11 loan.
  2 12    4.  Knowingly misrepresent or conceal material facts or
  2 13 make false promises likely to influence, persuade, or induce a
  2 14 borrower to enter into a consumer home loan.
  2 15    5.  Fail to disburse funds in accordance with a written
  2 16 commitment or agreement to make a consumer home loan.
  2 17    6.  Knowingly engage in any transaction, practice, or
  2 18 course of business in connection with a consumer home loan
  2 19 that is not in good faith or that constitutes a fraud upon any
  2 20 person.
  2 21    Sec. 3.  NEW SECTION.  714C.3  WAIVER PROHIBITED.
  2 22    The terms of this chapter cannot be waived or modified by
  2 23 contract or otherwise.
  2 24    Sec. 4.  NEW SECTION.  714C.4  EXEMPTION == CLAIMS AGAINST
  2 25 ASSIGNEES OR PURCHASERS OF LOANS.
  2 26    The provisions of this chapter shall not apply to federally
  2 27 insured depository institutions or their subsidiaries or
  2 28 affiliates, or to loans originated by federally insured
  2 29 depository institutions or their subsidiaries or affiliates.
  2 30 No claim or defense under this chapter may be asserted by the
  2 31 attorney general or any consumer against an assignee or
  2 32 purchaser of a mortgage loan for value unless one of the
  2 33 following applies:
  2 34    1.  The violation was committed by the assignee or
  2 35 purchaser.
  3  1    2.  The assignee or purchaser is affiliated by common
  3  2 control with the seller of the loan at the time of such
  3  3 assignment or purchase.
  3  4    Sec. 5.  NEW SECTION.  714C.5  REMEDIES.
  3  5    1.  A violation of this chapter is an unlawful practice
  3  6 pursuant to section 714.16, subsection 2, paragraph "a".
  3  7    2.  A borrower who suffers damage or injury as the result
  3  8 of a practice which violates this chapter, acting only in an
  3  9 individual capacity, may bring an action at law to recover
  3 10 actual damages.  The court may order such equitable relief as
  3 11 it deems necessary to protect the public from further
  3 12 violations, including temporary and permanent injunctive
  3 13 relief.  In an action in which it is found that a person has
  3 14 violated this chapter, the court shall award to the borrower
  3 15 the costs of the action and to the borrower's attorneys their
  3 16 reasonable fees.  Reasonable attorney fees shall be determined
  3 17 by the value of the time reasonably expended by the attorney
  3 18 including but not limited to consideration of the following
  3 19 factors:
  3 20    a.  The time and labor required.
  3 21    b.  The novelty and difficulty of the issues in the case.
  3 22    c.  The skills required to perform the legal services
  3 23 properly.
  3 24    d.  The preclusion of other employment by the attorney due
  3 25 to the attorney's acceptance of the case.
  3 26    e.  The customary fee.
  3 27    f.  Whether the fee is fixed or contingent.
  3 28    g.  The time limitations imposed by the client or the
  3 29 circumstances of the case.
  3 30    h.  The amount of money involved in the case and the
  3 31 results obtained.
  3 32    i.  The experience, reputation, and ability of the
  3 33 attorney.
  3 34    j.  The undesirability of the case.
  3 35    k.  The nature and length of the professional relationship
  4  1 between the attorney and the client.
  4  2    l.  Damage awards in similar cases.
  4  3    3.  In order to recover damages, a claim under this section
  4  4 shall be proved by a preponderance of the evidence.
  4  5    4.  If the finder of fact finds that a prohibited practice
  4  6 in violation of this chapter constitutes willful and wanton
  4  7 disregard for the rights or safety of another, in addition to
  4  8 an award of actual damages, statutory damages up to three
  4  9 times the amount of actual damages may be awarded to a
  4 10 prevailing borrower.
  4 11    5.  This section shall not affect a borrower's right to
  4 12 seek relief under any other theory of law.
  4 13    6.  A lender, mortgage banker, or mortgage broker in a
  4 14 consumer home loan who, when acting in good faith, fails to
  4 15 comply with the provisions of this chapter does not violate
  4 16 this chapter if, within sixty days of receiving notice of the
  4 17 failure to comply, the lender, mortgage banker, or mortgage
  4 18 broker makes appropriate restitution and whatever adjustments
  4 19 are necessary to correct the violation.
  4 20    Sec. 6.  NEW SECTION.  714C.6  APPLICABILITY OF OTHER LAW.
  4 21    This chapter establishes specific consumer protections in
  4 22 consumer home loans that are in addition to other consumer
  4 23 protections that may be otherwise available under state or
  4 24 federal law.
  4 25    Sec. 7.  NEW SECTION.  535B.12A  APPLICABILITY OF OTHER
  4 26 LAW.
  4 27    A violation of chapter 714C is a violation of this chapter.
  4 28    Sec. 8.  NEW SECTION.  536.19A  APPLICABILITY OF OTHER LAW.
  4 29    A violation of chapter 714C is a violation of this chapter.
  4 30    Sec. 9.  NEW SECTION.  536A.27A  APPLICABILITY OF OTHER
  4 31 LAW.
  4 32    A violation of chapter 714C is a violation of this chapter.
  4 33 SF 541
  4 34 rn:nh/cc/26