home improvement financing volume iii · home improvement financing ˘˘ ˇ ˆ˙˝˛˚ ˘˜ ......

Volume IIISummaries of State Laws(Minnesota - Wyoming)

FINANCIALPROTECTION

A Model State LawIn three volumes

Home ImprovementFinancing

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byMargot Saunders, AttorneyElizabeth Renuart, Attorney

National Consumer Law Center

Sharon Hermanson, Project OfficerAARP Public Policy Institute

October 2000

The Public Policy Institute, formed in 1985, is part of Public Affairs at AARP. One of the missions of theInstitute is to foster research and analysis on public policy issues of importance to older Americans.This publication represents part of that effort. The views expressed therein are for information, debate,and discussion, and do not necessarily represent formal policies of AARP.

© 2000, AARP. Reprinting with permission only. Stock Number: D17165AARP, 601 E Street, NW, Washington, DC 20049http://research.aarp.org

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MINNESOTA ........................................................................................................................................6Interest and Usury .........................................................................................................................6Minnesota Consumer Credit Uniform Code and Consumer Credit Sales .....................................6Regulated Loans (Small Loan Act) ................................................................................................7

MISSISSIPPI ........................................................................................................................................8Interest-Usury ................................................................................................................................8Small Loan Regulatory Law ..........................................................................................................8

MISSOURI .........................................................................................................................................10Retail Credit Sales Law ...............................................................................................................10Interest-Usury .............................................................................................................................. 11Default .........................................................................................................................................12Second Mortgage Loans .............................................................................................................13

MONTANA .........................................................................................................................................14Consumer Loan Businesses Act ................................................................................................14Usury ...........................................................................................................................................14Retail Installment Sales Act .........................................................................................................15

NEBRASKA .......................................................................................................................................17Mortgage Broker Registration Act ................................................................................................17Nebraska Industrial Loan Acts .....................................................................................................17Retail Installment Sales Act .........................................................................................................18Installment Loan Act ....................................................................................................................19Usury ...........................................................................................................................................20

NEVADA ............................................................................................................................................21Installment Loan Act ....................................................................................................................21Nevada Retail Installment Sales Act ............................................................................................ 22Usury ...........................................................................................................................................23Mortgage Licensing Act ...............................................................................................................23

NEW HAMPSHIRE ............................................................................................................................24Second Mortgage Home Loan Act ...............................................................................................24Disclosure of Finance Charge Act ..............................................................................................24Regulation of Small Loan Act ......................................................................................................25Rate of Interest ............................................................................................................................26

NEW JERSEY...................................................................................................................................27Door to Door Home Repair Sales Act .........................................................................................27Home Repair Financing Act ........................................................................................................27Licensed Lenders ........................................................................................................................29Retail Installment Sales Act .........................................................................................................30Small Loan Business Act ............................................................................................................31Interest and Usury .......................................................................................................................32

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NEW MEXICO ...................................................................................................................................33Installment Loan Act ....................................................................................................................33Mortgage Loan Companies and Brokers .....................................................................................33Retail Installment Sales Act .........................................................................................................34Small Loan Act ............................................................................................................................35Money, Interest and Usury/Residential Home Loan Act ...............................................................36

NEW YORK ......................................................................................................................................38Retail Installment Sales Act .........................................................................................................38Licensed Lenders (Small Loans) ................................................................................................38Rate of Interest ............................................................................................................................39

NORTH CAROLINA ..........................................................................................................................41North Carolina Consumer Finance Act (Small Loans) ................................................................41Retail Installment Sales Act .........................................................................................................41Interest Rates ..............................................................................................................................42

NORTH DAKOTA ..............................................................................................................................44Retail Installment Loan Act ..........................................................................................................44Consumer Finance (Small Loan) Act ..........................................................................................45

OHIO .................................................................................................................................................47Second Mortgage Security Loans ...............................................................................................47Retail Installment Sales ...............................................................................................................47Small Loans ................................................................................................................................48Interest and Usury .......................................................................................................................49

OKLAHOMA ......................................................................................................................................51Oklahoma UCCC – Consumer Credit Sales ...............................................................................51Oklahoma UCCC-Loans .............................................................................................................52Loans of Money ...........................................................................................................................54

OREGON ..........................................................................................................................................55Consumer Finance......................................................................................................................55Retail Installment Contracts ........................................................................................................55Interest ........................................................................................................................................56

PENNSYLVANIA ................................................................................................................................58Home Improvement Finance Act .................................................................................................58Retail Installment Sales ...............................................................................................................59Consumer Discount Company Act (Small Loans) ......................................................................60Usury ...........................................................................................................................................60

PUERTO RICO .................................................................................................................................62Interest-Usury ..............................................................................................................................62Retail Installment Sales and Financing Companies Act ..............................................................63

RHODE ISLAND ...............................................................................................................................65Home Solicitation Sales; Unfair Home Improvement Loans to Senior Citizens...........................65Truth in Lending and Retail Selling ..............................................................................................66Licensed Activities; Lenders and Brokers; and Small Loan Lenders...........................................66Usury ...........................................................................................................................................68

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SOUTH CAROLINA ...........................................................................................................................69South Carolina Consumer Protection Code ................................................................................69Consumer Finance Law (Small Loans).......................................................................................70Usury and Miscellaneous Loan Provisions ..................................................................................71

SOUTH DAKOTA ..............................................................................................................................72Consumer Installment Sales Contracts ......................................................................................72Small Installment Loans and Consumer Finance........................................................................72Interest and Usury .......................................................................................................................73

TENNESSEE ....................................................................................................................................74Tennessee Industrial Loan Act .....................................................................................................74Retail Installment Sales Act .........................................................................................................74Interest Rates ..............................................................................................................................75Real Estate Loans .......................................................................................................................76

TEXAS...............................................................................................................................................78Secondary Mortgage Loans ........................................................................................................78Retail Installment Sales ...............................................................................................................79Small Loans and Installment Loans ............................................................................................81Interest Rates ..............................................................................................................................82

UTAH .................................................................................................................................................84Utah Consumer Credit Code .......................................................................................................84Usury ...........................................................................................................................................85

VERMONT ........................................................................................................................................86Licensed Lenders ........................................................................................................................86Retail Installment Sales ...............................................................................................................86Interest Generally ........................................................................................................................87

VIRGIN ISLANDS...............................................................................................................................89Interest and Usury .......................................................................................................................89

VIRGINIA ............................................................................................................................................90Virginia Consumer Finance Act (Small Loans) ...........................................................................90Interest and Usury .......................................................................................................................90

WASHINGTON ..................................................................................................................................92Consumer Loan Act ....................................................................................................................92Retail Installment Sales of Goods and Services..........................................................................92Consumer Finance Act (Small Loans) ........................................................................................93Interest and Usury .......................................................................................................................94

WEST VIRGINIA ................................................................................................................................96Secondary Mortgage Loans ........................................................................................................96Money and Interest ......................................................................................................................97West Virginia Consumer Credit And Protection Act ....................................................................97

WISCONSIN....................................................................................................................................100Wisconsin’s Consumer Credit Code ........................................................................................100Money and Rates of Interest ...................................................................................................... 101

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WYOMING ....................................................................................................................................... 103Wyoming Uniform Consumer Credit Code, Credit Sales ..........................................................103Wyoming Uniform Consumer Credit Code, Loans.................................................................... 104

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Interest and UsuryCitation: Minn. Stat. §§47.20, and 334.01 to 334.20

Applicability: The act sets interest rates.

Exemptions: §334.01 exempts contracts of $100,000 or more and business andagricultural loans, among others.

Interest Rate and Fee Caps: §334.01 sets the legal rate of interest at 6 percent“unless a different rate is contracted for in writing.” However, “(N)o person shalldirectly or indirectly take or receive in money, goods, or things in action, or in anyother way, any greater sum or any greater value, for the loan or forbearance of money,goods, or things in action, then (8 percent).” §47.20 addresses conventional loans,and subdivision 1 authorizes banks, and savings and loans to make loans secured bymortgages of real property pursuant guarantee by Housing and Urban Development(HUD), the Veteran’s Administration (VA), or Farmers Home Administration (FHA) asallowed by federal law. Subdivision 4a. limits interest rates for “cooperative apartmentloans or contract for deed” for real property at an amount equal to the FNMA yieldson 30-year mortgages, while the maximum rate of interest on an apartment loan orcontract for deed payable in under 10 years is 3 percent above the rate permitted byFNMA, or 15.75, whichever is less.

Civil Penalties/Enforcement: §334.03 declares usurious contracts invalid. §334.05allows a court to cancel a usurious contract.

Private Right of Action: Implicit

Applicability of State UDAP: Minn. Stat. §325D.44 is broad enough to encompassusury, and the plaintiff may be awarded actual damages and attorney fees. No trebledamages or punitives are applicable.

Minnesota Consumer Credit Uniform Code and Consumer CreditSalesCitation: Minn. Stat. §§47.59 and §325G

Applicability: The act establishes allowable finance charges for financial institutions.

Exemptions: The act does not apply to loans other than consumer loans andconsumer credit sale contracts.

Licensing Requirements: A financial institution is defined as a state or federallychartered bank, savings and loan, or other regulated lender, which have their ownlicensing statutes.

Interest Rate and Fee Caps: §47.59(3) sets the interest cap for loans or open-endedcredit arrangements at 21.75 percent, or the total of 33 percent of the unpaid balance,not exceeding $750, and 19 percent on that portion exceeding $750. Open-endedcredit pursuant to a credit card is limited to 18 percent. §47.59(6) sets forthallowable additional charges, including official fees and taxes, allowed insurancecharges, delinquency charges, title search fees, deed preparation fees, and appraisalfees.

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Loan Terms: §47.59(9) gives the consumer the right to prepay without a penalty

Disclosures: §47.59(12) requires “consumer protection” disclosures in compliance withfederal Truth in Lending Act (TILA), as well as a separate disclosure regarding thefinance charges.

Civil Penalties/Enforcement: §47.59(14) contains the borrower’s remedies, includingactual damages and a penalty of not less than $100 and not more than $1,000 for aviolation.

Private Right of Action: Yes (see above).

Applicability of State UDAP: Minn. Stat. §325D.44 is broad enough to encompassusury, and the plaintiff may be awarded actual damages and attorney fees. No trebledamages or punitives are applicable.

Regulated Loans (Small Loan Act)Citation: Minn. Stat. §§56.0001 to 56:19

Applicability: Under §56.01, the act licenses lenders who want to loan money (under§56.131, up to $100,000 or 15 percent of the licensee’s capital stock) under theprovisions of the act.

Exemptions: §56.002 exempts regulated financial institutions.

Licensing Requirements: §56.01 to 56.12

Interest Rate and Fee Caps: §56.131 allows licensed lenders to collect the interestallowed under §47.59(2) of §56.131 sets forth additional charges that are allowed.§56.125 contains provisions governing open-ended loans.

Loan Terms: §56.14 requires the licensee to deliver TILA disclosures, provide receiptsfor payments made, and permit payments to be made in advance (with appropriaterefund).

Prohibited Acts: Unlicensed persons are not allowed to make loans (§56.18).

Criminal Penalties: Under §56.19(1) a violation of the act is a misdemeanor.

Civil Penalties/Enforcement: Under §56.19, a lender in violation of the act is liable for apenalty of $100 for each violation to the consumer. If the lender is unlicensed, thenthe loan is void and the debtor is not obligated to pay anything. The remedies are“exclusive,” but don’t “impair rights on the debt” (§56.19(4)).

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Citation: Miss. Code Ann. §§75-17-1 to 75-17-35

Interest Rate and Fee Caps: The interest rate cap for written contracts is: 10 percentper year or 5 percent per year above the discount rate, excluding any surchargethereon, on 90-day commercial paper in effect at the Federal Reserve Bank for thedistrict in which the lender is located. The interest rate cap for loans secured byresidential real property is: 10 percent per year or 5 percent per year above themonthly index of market yields of 20-year Long-Term U.S. Bonds. However, until July1, 2001, on any loan for more than $2,000, any agreed upon interest rate may becharged (§75-17-1). The interest rate cap for closed-end credit sales by retail sellersis: 24 percent per year on the part of the balance $2,500 or less, and 21 percent peryear on the part of the balance over $2,500 (§75-17-19). Interest rates must becalculated by the actuarial method (§§75-17-1, 75-17-19). If a payment is 15 dayspast due, a late charge not to exceed $5 or 4 percent of the delinquent payment (ifcontracted for) may be charged. On loans of $100,000 or less with a term of lessthan 5 years, the late charge shall not exceed $50 (§75-17-27). Prepayment chargesfor loans secured by residential real estate shall not to exceed: 5 percent of theunpaid principal if paid back during the first year, 4 percent during the second year, 3percent during the third year, 2 percent during the fourth year, 1 percent during thefifth year; no prepayment charge allowed after the fifth year (§75-17-31).

Prohibited Acts: Splitting loans in order to receive a higher finance charge thanpermitted by law is prohibited (§75-17-29).

Civil Penalties/Enforcement: If a greater rate of interest than allowed by law iscontracted for or received, all interest and finance charges shall be forfeited and maybe recovered. If the finance charge contracted for or received exceeds the maximumallowed by law by more than 100 percent, the principal and all finance charges shallbe forfeited and any amount paid may be recovered by suit (§75-17-25). If loan wassplit to receive a higher interest rate than allowed by law, all interest and financecharge are forfeited (§75-170-29).

Private Right of Action: Allowed to recover forfeited interest (§75-17-25).

Applicability of State UDAP: Yes. Miss. Code Ann. §75-24-1. Actual damages;restitution in setoff, or counterclaim action

Small Loan Regulatory LawCitation: Miss. Code Ann. §§75-67-101 to 75-67-137; Miss. Code Ann. §§75-17-15and 75-17-21

Applicability: The act applies to persons who engage in the business of lendingmoney to be paid back in installments, whether or not the lender requires securityfrom the borrower (§75-67-103).

Exemptions: Exemptions include: banks; saving banks; trust companies; buildingand loan associations; credit unions; insurance companies; pawnbrokers; loansmade for farming purposes; loans insured or guaranteed by the federal government;loans only secured by real estate; and occasional lenders making no more than 1loan per month or 12 loans per year (§75-67-135). A licensee acting in conformitywith any rule or regulation issued by the Commissioner of Banking and Consumer

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Finance or any other state or federal agency, or in conformity with any opinion of theAttorney General, or in conformity with a written interpretation or approval by a state orfederal official or employee, shall be presumed to have acted in accordance with thelaw and not be liable for any such act or practice (§75-67-137).

Licensing Requirements: Miss. Code Ann. §§75-67-201 to 75-67-243

Interest Rate and Fee Caps: Any deferral charge may not exceed an amount equal toapplying the contracted for annual percentage rate to the amount deferred for thedeferment period (§75-67-120). On loans for more than $100, the actual cost ofrecording any security instrument; any reasonable title investigation fee paid to anattorney; and actual insurance premium costs (§75-67-121). A bad check charge maynot exceed $15 (§75-67-122). A delinquency charge is limited to $5 or 5 percent ofany installment not paid within 10 days (§75-17-15). The interest rate cap for theportion of the unpaid balance: 1) not more than $1,000 is 36 percent per year; 2) over$1,000 but not more than $2,500 is 33 percent per year; 3) over $2,500 but not morethan $5,000 is 24 percent per year; 4) over $5,000 is 14 percent per year. Analternative rate for loans of $25,000 or more is 18 percent per year. A closing fee of 2percent of the total payments due or $50, whichever is less is permitted (§75-17-21).

Prohibited Loan Terms: Confession of judgment or any power of attorney therefore isprohibited (§75-67-127).

Disclosures: At the time loan is made, a statement, in English, disclosing theamount, date, schedule of payments, type of security, name and address of lenderand borrower, and total amount of finance charges as a dollar amount and an annualpercentage rate must be disclosed. Compliance with federal TILA shall fulfill thisrequirement (§75-67-127).

Prohibited Acts: False, deceptive or misleading advertising; and offering or giving anypremium, whether cash, check, or goods to induce the borrower to make, broker, orrenegotiate any loan (§75-67-109); charging more than 2 deferral fees in any 12-monthperiod (§75-67-120); leaving any blanks in the note to be filled in after loan made; andfailing to make required disclosures are prohibited (§75-67-127).

Criminal Penalties: Violations are a misdemeanor punishable by a fine of at least$100, but not more than $1,000 (§75-67-119).

Civil Penalties/Enforcement: The state Comptroller of Banks shall administer andenforce the act (§75-67-107). The Commissioner of Banking and Consumer Financemay issue rules and regulations for the act’s administration (§75-67-129). If a greaterrate of interest than allowed by law is contracted for or received, all interest andfinance charges shall be forfeited and may be recovered. If the finance chargecontracted for or received exceeds the maximum allowed by law by more than 100percent, the principal and all finance charges shall be forfeited and any amount paidmay be recovered by suit (§75-67-119). Violating the requirements of §75-67-127knowingly or without the exercise of due care renders the contract void (§75-67-127).

Private Right of Action: Implied by the courts (§75-67-111)

Applicability of State UDAP: Yes. Miss. Code Ann. §75-24-1. Actual damages;restitution in setoff or counterclaim action

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Citation: Mo. Rev. Stat. §§408.250 to 408.370

Applicability: The act applies to the sale of goods or services by a person whoregularly sells goods or services, primarily for personal, family, or householdpurposes, for a time sale price. Goods include items which, at the time of sale orsubsequent thereto, are to be so affixed to realty as to become a part thereof,whether or not severable therefrom. Creditors include those persons who regularlyextend or arrange for the extension of credit (§408.250).

Exemptions: If the seller or holder corrects any violation within 10 days of noticingfailure or being notified thereof by buyer, then the seller or holder are not subject topenalties (§408.370).

Interest Rate and Fee Caps: If a retail time transaction involves the repair,modernization, alteration, or rehabilitation of real property, the cash sale price mayinclude reasonable fees and costs actually paid for construction permits, the servicesof an attorney, and any title search or insurance (§408.250). Notwithstanding theprovisions of any other law, the seller or holder may charge a time charge as agreedto by the parties, which shall be in lieu of any interest charges. A minimum timecharge of $12 may be charged on any contract. The time charge shall include anycharges for investigating or making contract (§408.300). The holder may, if thecontract so provides, collect: a bad check fee not to exceed $15; a delinquencycharge not to exceed $10 ($5 if the overdue installment is under $25), if aninstallment is 10 days past due; interest on the delinquent payment in an amount notto exceed the highest lawful contract rate; and attorney fees not exceeding 15percent of the amount due and court costs, if the contract is sent for collection to anattorney who is not a salaried employee of the holder (§408.330).

Loan Terms: The contract shall be in writing, signed by the parties, and completedprior to the buyer’s signing the contract (§408.260). The buyer may prepay at anytime before maturity and receive a refund of unearned interest (§408.320).

Prohibited Loan Terms: Any provision relieving the seller from liability for any legalremedies which the buyer may have against the seller is prohibited. The buyer maynot 1) agree to assert a claim or defense arising out of the sale against a seller,holder or assignee or 2) waive any claim, rights, or legal remedies the buyer mayhave against the seller, assignee or holder (§408.260).

Disclosures: In at least 10-point bold type, a notice is required that advises the buyer:1) to read the contract, which should be filled-in, before signing it; 2) ot the buyer’sright to a completed copy; and 3) of buyer’s right to pay off the loan in advance(§408.260). The contract must disclose: itemized amount financed; amounts ofinsurance and official fees, if any; time charge; total and breakdown of payments; andtime sale price (§408.260).

Prohibited Acts: Requiring the execution of any note or series of notes which, whenseparately negotiated, will cut off as to third parties any right or defense buyer mayhave against the seller; signing a contract not filled in are prohibited acts (§408-260).

Criminal Penalties: Knowing violations of the act are misdemeanors, punishable byfines of $500 or by 6-month imprisonments (§408.370).

Civil Penalties/Enforcement: Until a signed copy of the contract is delivered to the

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buyer, the buyer who has not received delivery of the goods has the right to cancel andreceive an immediate refund of all payments made and return of any trade-ins(§408.260). A buyer’s waiver of the provisions of the act is void (§408.350). Anyperson who violates the act, except as a result of an accidental and bona fidecomputation error, is barred from recovery of any time charge or delinquency orcollection charge (§408.370).

Private Right of Action: Any buyer who suffers an ascertainable loss of money or realor personal property may bring an action for damages (§408.370).

Applicability of State UDAP: Yes. Mo. Rev. Stat. §407.010. Actual damages, punitivedamages discretionary; court “may” award attorney fees to prevailing party; equitablerelief

Special Assignee Provisions: No contract may require the execution of any note orseries of notes which, when separately negotiated, will cut off as to third parties anyright or defense the buyer may have against the seller. The buyer’s writtenacknowledgment of the delivery of a copy of the contract shall be a conclusivepresumption of delivery and of the contract being completely filled in, in any action byor against an assignee without knowledge to the contrary. No contract may require abuyer to agree not to assert a claim or defense arising out of the sale against a seller,holder, or assignee or to waive any claim, rights, or legal remedies the buyer may haveagainst the seller, assignee, or holder (§408.260). Until the buyer has notice ofassignment, any payment made to last known holder shall be binding upon allsubsequent holders or assignees (§408.310).

Interest-UsuryCitation: Mo. Rev. Stat. §§408.015 to 408.096

Exemptions: Exemptions include: loans to corporations; business loans of $5,000 ormore; nonresidential real estate loans (§408.035).

Interest Rate and Fee Caps: The interest rate cap is as agreed in writing: 10 percentper year, except that if the market rate exceeds 10 percent, the higher rate may becharged (market rate equal to the monthly index of long-term U.S. bond yields for thesecond preceding calendar month prior to the beginning of the calendar quarter, plus 3percent rounded off to the nearest 1/10 percent (§408.030). A minimum interest fee of$10 may be charged (§408.031). No prepayment penalty is allowed on residential realestate loans paid after 5 years from the date of origination. A prepayment penalty islimited to 2 percent of balance otherwise, except in some refinancing (§408.036). Nopoints are allowed on residential real estate loans except a 1 percent origination fee.The lender may charge bona fide expenses paid to a third party not related to thelender. For home repair and improvement contracts, the lender may also charge a 1percent fee for inspection and disbursement of loan proceeds to third parties. Adefault charge is allowed for any installment not paid within 15 days of the due date.These restrictions do not apply to federally insured or guaranteed loans (§408.052).Compound interest is allowed, but compounding is restricted to once per month(§408.080). No loan arrangement fee is allowed for loans of $1,000 or less made forpersonal, family, or household purposes (§408.096).

Prohibited Acts: Splitting loans in order to receive multiple minimum interest fees isprohibited (§408.031).

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loan arrangement fee on a personal, family, or household purpose loan of $1,000 orless, is guilty of a misdemeanor (§§408.052, 408.096).

Civil Penalties/Enforcement: Security interests in personal property are invalid andillegal if usurious interest is charged (§408.070).

Private Right of Action: Twice the amount of usurious interest or points paid, plusreasonable attorneys’ fees and costs available (§§408.030, 408.050, 408.052,408.060)

Applicability of State UDAP: Yes. Mo. Rev. Stat. §407.010. Actual damages,punitive damages discretionary; court “may” award attorney fees to prevailing party;equitable relief

DefaultCitation: Mo. Rev. Stat. §§408.551 to 408.562

Applicability: Retail installment transactions and second mortgage loans madeprimarily for personal, family or household purposes (§408.551).

Loan Terms: The borrower has the right to cure default for 30 days. The lender maynot accelerate or enforce security interest until cure period expires, unless theborrower voluntarily surrenders possession (§408.555). The right to cure is lost after 2defaults on a retail installment transaction and 3 defaults on a second mortgage loan(§408.554). A default on a second mortgage loan may be cured at any time prior tothe completion of foreclosure proceedings. No foreclosure can occur prior to 30 daysafter the default notice is given (§408.555).

Prohibited Loan Terms: Power of attorney to confess judgment; wage assignments;waiver of exemptions; security interests in a class of consumer goods; and waiver ofright of action against lender or assignee in collection or repossession are prohibitedloan terms (§408.560). Provisions concerning default are enforceable only to theextent the borrower fails to make a payment or a lender’s prospect for payment orability to realize upon collateral is significantly impaired. The burden of provingimpairment is on the lender (§408.552). Upon default, the lender is entitled to nomore than the prepayment amount on the date of judgment, plus simple interestequivalent to the contract rate for the period thereafter (§408.553). No nonpurchasemoney security interests in household furnishings or appliances may be obtained ifthe loan is less than $500. No security interest in goods may be obtained for loansless than $150 (§408.558).

Disclosures: A default notice is required after 10 days failure to make a payment, thatidentifies the default, explains the borrower’s right to cure, and specifies the sumrequired to do so (§408.554).

Private Right of Action: Actual damages; equitable relief; punitive damages, andreasonable attorney fees to prevailing party (§408.562)

Applicability of State UDAP: Yes. Mo. Rev. Stat. §407.010. Actual damages,punitive damages discretionary; court “may” award attorney fees to prevailing party;equitable relief

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Other: Missouri UCC Article 9-501 to 9-507 is applicable to all consumer credittransactions. If collateral is taken or returned, deficiency judgments are prohibited fordebts with a principal of less than $500, or with a remaining balance of less than $300(§408.556).

Second Mortgage LoansCitation: Mo. Rev. Stat. §§408.231 to 408.241

Applicability: The act applies to second mortgage loans on residential real estate(§408.231).

Exemptions: Second mortgage loans on which the rate of interest is lawful withoutregard to this act are exempt (§408.232).

Interest Rate and Fee Caps: Any interest rate agreed by parties is allowed (§408.232).Bona fide closing costs paid to third parties; taxes; recording and similar official fees;a non-refundable origination fee not to exceed 5 percent; insurance; are the onlyallowed charges. A default charge of $25 or 5 percent of amount overdue is allowed ifthe payment is 15 days past due. A bad check fee of $15 is allowed. If allowed bythe contract, attorney fees not to exceed 15 percent of amount due and court costs ifreferred for collection to an attorney not a salaried employee of holder may be charged(§408.233). A prepayment fee is allowed (as for other mortgages) (§408.241).

Loan Terms: The buyer may prepay at any time and receive a rebate of unearnedinterest (§408.234).

Prohibited Acts: Loans for under $2,500 are prohibited (§408.234). Splitting loans toreceive the higher interest rate allowed by this act is prohibited (§408.237).

Criminal Penalties: Violations are a misdemeanor, unless the violation is the result ofan accidental and bona fide computation error, or the result of reliance upon a writteninterpretation of the act by the Director of Division of Finance (§408.240).

Civil Penalties/Enforcement: The Director of the Division of Finance enforces(§408.235). No recovery of interest is allowed if the lender violates the act unless theviolation is the result of an accidental and bona fide computation error, or the result ofreliance upon a written interpretation of act by the Director of Division of Finance(§408.236).

Applicability of State UDAP: Yes. Mo. Rev. Stat. §407.010. Actual damages, punitivedamages discretionary; court “may” award attorney fees to prevailing party; equitablerelief

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Consumer Loan Businesses ActCitation: Mont. Code Ann. §§32-5-101, et seq

Applicability: A consumer loan is defined as “credit offered or extended to an individualprimarily for personal, family, or household purposes, including loans for personal,family, or household purposes secured by a mortgage or deed of trust or othersecurity in real estate” (§32-5-102).

Exemptions: “A consumer loan licensee or a person who seeks a regulated lenderexemption under §31-1-112 as a consumer loan licensee shall fully comply with thischapter. A regulated lender as defined at §31-1-111, other than a consumer loanlicensee, or a lender who complies with the provisions of §§31-1-101 et seq. is notrequired to comply with this chapter” (§32-5-103 (5)).

Licensing Requirements (cite only): §32-5-201, et seq.

Interest Rate and Fee: §32-5-301 (1) says any licensee may “contract for or receiveon any loan of money interest charges as provided under §31-1-112.” That provision,in turn, exempts regulated lenders from usury requirements. Paragraphs (2)-(7) seemto only apply to the calculation of interest. §32-5-321 allows a creditor to charge fordeferrals.

Loan Terms: §32-5-303 requires: the name and address of lender and borrower; dateof loan contract; schedule of installments; principal amount of loan; rate or amount ofcharges; amount collected or paid for insurance; filing fees; description of collateral;and that the borrower may prepay.

Prohibited Loan Terms: It is prohibited to take any note which does not disclose theamount of the loan, schedule of payments or description thereof, agreed charges, andin which any blanks are left (§32-5-305).

Disclosures: See loan terms (§32-5-303, MCA).

Prohibited Acts: Contracting for or receiving interest at a rate exceeding the maximumamount authorized by this chapter is prohibited (§32-5-406, MCA).

Criminal Penalties: Misdemeanor maximum is $500 per 6 months (§32-5-406 (2)).

Civil Penalties/Enforcement: Enforcement by the Department of Commerce (§32-5-401, et seq.); the department may seek an injunction (§32-5-405 (1) non-criminalpenalties.

Applicability of State UDAP: Yes, “any trade or commerce” (§30-14-103). Allowsattorney fees and treble damages (§30-14-133)

UsuryCitation: (§31-1-104)

Applicability: The act applies to loans of money; loans presumed to be on interest(§31-1-103); and interest rates definitions.

Exemptions: The act exempts regulated lenders (§31-1-112), as defined (§31-1-111) to

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include banks, building and loan associations, savings and loan associations, trustcompanies, credit unions, credit associations, consumer loan licensees, developmentcorporations, bank holding companies or mutual or stock insurance companiesregulated at the state or the federal lenders.

Interest Rate and Fee Caps: Parties may agree to any rate of interest that does notexceed the greater of 15 percent or an amount that is 6 percentage points per annumabove the prime rate of major New York banks, as published in the Wall Street Journaledition dated 3 business days prior to the execution of the agreement (§31-1-107).

Prohibited Loan Terms: Charging more than the amount allowed at §§31-1-107 and 31-1-108 is prohibited.

Prohibited Acts: Charging more than amount allowed at §§31-1-107 and 31-1-108 isprohibited.

Civil Penalties/Enforcement: Charging a rate greater than allowed (§31-1-107) shall bedeemed a forfeiture of a sum double the amount of interest which the note, bill, orother evidence of debt carries, or which has been agreed to be paid thereon. When agreater rate has been paid, the debtor may recover a sum of double the amount ofinterest so paid, provided such action shall be brought within 2 years after payment ofsaid interest, and provided the debtor makes prior written demand. (§31-1-108 (1)&(2)).

Private Right of Action: Implied above

Applicability of State UDAP: Yes. “Any trade or commerce” (§30-14-103); trebledamages and attorney fees (§30-14-133)

Retail Installment Sales ActCitation: Mont. Code Ann. 31-1-201, et seq.

Applicable: The act applies to: agreements under which buyers promise to pay ininstallments the time sales price of goods or services or both, and includes chattelmortgages and conditional sales contract. The act does not apply to loans securedby realty (§31-1 202).

Exemptions: Banks, trusts, and savings and loans companies licensed to do businessin the state do not need to obtain a license (§31-1-221).

Licensing Requirements: §31-1-221, MCA

Interest Rate and Fee: §31-1-241, “Finance Charge Limitation” states that the financecharge must be an amount agreed upon by the parties, and that it must be computedmonth-to-month. It does not set a specific limitation. §31-1-236 allows the creditor toobtain a delinquency fee.

Loan Terms: §31-1-231 requires specific language in loan contracts. The contractmust contain the following: cash sales price of goods or services; amount ofdownpayment/trade-in; difference between sales price and trade-in; insurance, if any;amount of official fees; principal balance; finance charge; total amount of time balance;amount of installments; and due date for installments.

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Prohibited Loan Terms: Leaving blank spaces in loan documents is prohibited (§31-1-231).

Disclosures: “Notice to the buyer. Do not sign this contract before you read it or if itcontains blank spaces. You are entitled to an exact copy of the contract you sign.Under the law, you have the right to pay off in advance the full amount due and toobtain a partial refund of the finance charge” is required (§31-1-231 (2)).

Prohibited Acts: §31-1-222 discusses grounds for suspension or revocation of alicensed sales finance company, and includes material misstatement of fact, willfulfailure to comply with provisions of the law, and defrauding a buyer.

Criminal Penalties: Misdemeanor (maximum is $500 per 6 months) (§31-1-203).

Civil Penalties/Enforcement: §31-1-202 also bars someone in violation of the law fromrecovery of any finance, delinquency, or collection charges on the contract. TheDepartment of Commerce has the power to enforce and adopt rules (§31-1-211), andto investigate complaints.

Private Right of Action: §31-1-212 (2) provides that a retail buyer may file with theDepartment a written complaint alleging a violation, and the Department may “uponreceipt of the complaint inspect the pertinent books, records, letters, and contracts ofthe licensee and retail seller involved.” Nothing in the act restricts a private right ofaction.

Applicability of State UDAP: Yes, any trade or commerce (§30-14-103); allows suit forup to 3 times actual damages and attorney fees (§30-14-133).

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Mortgage Broker Registration ActCitation: Neb. Rev. Stat. §§45-701 to 721

Applicability: The act applies to any loan secured by real estate (§45-721).

Exemptions: §45-703 lists exemptions, including any: financial institution whichmaintains in place of business within the state; registered bank holding company;registered insurance company; lawyer, in normal course of business; real estatebroker, in normal course of business; agent of a mortgage business licensed underthis part; any holding company of a financial institution other than a registered bankholding company; any financial institution which does not maintain its place ofbusiness in the state; wholly-owned subsidiary of (a)-(c); insurance company doingbusiness in Nebraska.

Licensing Requirements: §§45-704 to 706 (must be registered under 704 even ifexempt from licensing requirements of 705)

Prohibited Acts: Under §45-707, the licensee materially violated Act or any other stateor federal law; “A fact or condition exists which, if it had existed at the time of theoriginal application for the license would have warranted” denial. A license cannot berevoked or suspended without an Administrative Procedure Act (APA) hearing.Engaging in the business of being a mortgage banker without license is prohibited(§45-708).

Civil Penalties/Enforcement: The Department of Insurance or Attorney General mayorder a licensee to cease and desist, and bring civil enforcement action against thelicensee (§45-717).

Private Right of Action: “Except when expressly authorized, there shall be no privatecause of action for any violation of the act” (§45-717 (7)).

Applicability of State UDAP: The Nebraska’s Uniform Deceptive Trade Practices Act(§§87-301 to 306) contains the standard list of deceptive practices; it does not excludelending. §87-303.10 implicitly allows a private individual to bring a civil action; specificis by the Attorney General. Treble damages and attorney fees are not specified.

Nebraska Industrial Loan ActsCitation: Neb. Rev. Stat. §§8-435 to 450

Applicability: The act applies to loans by “industrial loans and investment companies”(§45-435).

Interest Rate and Fee Caps: 19 percent (§8-435)

Loan Terms: It prohibits to give 2 loans to circumvent interest rate restrictions in §8-435 (§8-436).

Prohibited Loan Terms: Loans cannot exceed 145 months (§8-446).

Disclosures: Statement of charges is required (§8-443).

Prohibited Acts: Lenders cannot engage in deceptive advertising (§8-445).

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Criminal Penalties: Misdemeanor (§8-449)

Civil Penalties/Enforcement: Lenders cannot collect interest if the law is violated (§8-449).

Applicability of State UDAP: Nebraska’s Uniform Deceptive Trade Practices Act(§§87-301-306) contains the standard list of deceptive practices; it does not excludelending. §87-303.10 implicitly allows a private individual to bring a civil action;enforcement is by the Attorney General. Treble damages and attorney fees are notspecified.

Other: Special requirements for pre-payments (§8-440)

Retail Installment Sales ActCitation: Neb. Rev. Stat. §§45-301 to 353

Applicability: The act applies to installment sales “in which the buyer acquires goodsor services from a seller pursuant to an agreement which provides for a time-pricedifferential and under which the buyer agrees to pay all or part of the time-sale price in1 or more installments and within (145) months (except mobile homes wherecontracts may exceed 145 months.) (§45-335).

Exemptions: The law applies to licensed sales finance companies, banks, andsavings and loans although they are not required to be licensed under this statute.

Licensing Requirements: §§45-345 to 350

Interest Rate and Fee Caps: “Time price differential” may not exceed 18 percent (§45-338). Delinquency charges are allowed (§45-341).

Loan Terms: The loan terms include Retail Installment Sales Act (RISA) loanrequirements, including: cash sale price; the amount of the downpayment; thedifference between the sales price and the downpayment; the amount charged forinsurance, if any; basic time price; the time price differential; amount of time pricebalance; number, amount, and due date of each installment; and the time sale price(§45-336). The contract must also contain the standard notice to the consumer toread before signing and not leave any blanks.

Prohibited Loan Terms: Leaving blank spaces (§45-336 (3))

Disclosures: See above discussion of §45-336.

Prohibited Acts: Renewal of license will not be made, or license will be suspended onthe following grounds: material misstatement in application; willful failure to complywith this act; defrauding any buyer to the buyer’s damage; or fraudulentmisrepresentation, circumvention or concealment by the licensee … of informationrequired in application (§45-350).

Criminal Penalties: A violation of the act is a misdemeanor (§45-343).

Civil Penalties/Enforcement: Enforcement is by the Director of Banking and Financeor Attorney General to seek injunction (§45-353 and 351). §45-344 states that the

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following cannot be collected: excessive portion of time price differential; the first$1,000 authorized by §45-338; and the first $4,000 of the principal of the contract.

Private Right of Action: Yes. §45-345

Applicability of State UDAP: Nebraska’s Uniform Deceptive Trade Practices Act (§87-301-306) contains the standard list of deceptive practices; it does not exclude lending.§87-303.10 implicitly allows a private individual to bring a civil action; all enforcementis by the Attorney General. Treble damages and attorney fees are not specified.

Installment Loan ActCitation: Neb. Rev. Stat. §§45-114, et seq.

Applicability: The act does not apply to: 1) loans “made” by a person who is not alicensee on which the interest does not exceed the maximum rate permitted under§45-101.03 (16 percent); 2) banks or trust companies (§45-115); and 3) loans securedsolely by real estate (§45-137 (6)).

Exemptions: See above.


Interest Rate and Fee Caps: §45-137 sets the interest limit at 24 percent on loans notin excess of $1,000, and 21 percent “on any remainder of such unpaid balance.” §45-137 (5) allows a lender to charge “all reasonable expenses incurred in connection withthe making, closing, disbursing, extending, readjusting, or renewing the loan,”including the costs of “abstracting, recording, releasing and registration fees,premiums paid for nonfiling insurance, premium paid on insurance policies coveringtangible personal property securing the loan, title examinations, credit reports, …taxes or charges imposed or in connection with the making and recording or releasingof any mortgage.” The lender can also charge a “loan origination fee” with a formula forcalculation. §45-137 establishes how interest is to be charged.

Disclosures: The lender is required to give the borrower a statement of insuranceincluded in loan (§45-140). Disclosure is required under the federal “Consumer CreditProtection Act” (§45-145).

Prohibited Acts: False, misleading, or deceptive advertising is prohibited (§45-133).Specified interest rates cannot be exceeded (§45-137). §§45-142 and 143 prohibitleaving blanks on contracts. The Department of Banking and Finance has the powerto revoke a license for knowingly violating any provision of the statute (§45-146).

Criminal Penalties: Yes. §45-153

Civil Penalties/Enforcement: The Department of Finance and Banking may revoke alicense for a violation (§45-147). A violator is prohibited from collecting “any interest orcharges whatsoever” (§45-154). Refunding of illegally collected interest is required(§45-155).

Private Right of Action: The lender cannot collect illegal interest and charges [§45-154and 155]; §45-157 outlines the agency’s enforcement scheme, does not discussrefunding payments to individual borrowers, and does discuss enjoining such action.

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Applicability of State UDAP: Nebraska’s Uniform Deceptive Trade Practices Act (§87-301-306) contains the standard list of deceptive practices; it does not exclude lending.§87-303.10 implicitly allows a private individual to bring a civil action; enforcement isby the Attorney General. Treble damages and attorney fees are not specified.

UsuryCitation: Neb. Rev. Stat. §§45-101 et seq.

Applicability: Any contract for payment of money in excess of “maximum legalcontract rate” is usury (§45-109). The allowable interest rate is 16 percent (§45-101.3).

Exemptions: §45.101.04 lists14 exemptions, including banks, credit unions, andsavings and loans; loans to any corporation; loans over $25,000; loans guaranteed byUS; open credit accounts; loans secured by real estate if made by a lender licensedunder §45-114-158 and by bank, or savings and loan.

Prohibited Loan Terms: Requirements regarding the establishment of escrowaccounts and payment of taxes and insurance (§45-101.05)

Prohibited Acts: Usurious contracts are prohibited (§45-109).

Civil Penalties/Enforcement: The lender can recover principal and the legal interestrate (forfeiting the illegal interest) (§45-110).

Private Right of Action: Yes. “Any person charged with taking illegal interest may berequired to answer touching the same, in any civil proceedings” (§45-111, see also§45-112).

Applicability of State UDAP: Nebraska’s Uniform Deceptive Trade Practices Act (§87-301-306) contains the standard list of deceptive practices; it does not exclude lending.§87-303.10 implicitly allows a private individual to bring a civil action; enforcement isby the Attorney General. Treble damages and attorney fees are not specified.

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Installment Loan ActCitation: Nev. Rev. Stat. §§675.010, et seq.

Applicability: The act requires the licensure of persons who make installment loans,and requires the licensure of anyone who “engages in the business of lending”(§675.060).

Exemptions: Banks, savings and loans, trust companies, and credit unions areexempt. The following are also exempt: real estate investment trusts; employeebenefit plans if the loans are made from money in the plan; attornies, acting in normalcourse of business; real estate brokers, acting in normal course of business; firmswhose principal purpose is lending money on real property secured by a mortgage,approved by FNMA and Housing and Urban Development (HUD)/Veteran’sAdministration (VA); persons who provide money for investments in loans secured by alien on real property, on their own account; sellers of real property who offer creditsecured by mortgages of properties sold; and persons holding unrestricted gaminglicenses.

Licensing Requirements: §675.060-160

Interest Rate and Fee Caps: There is no apparent cap on interest rates. The sectionon Loans for Indefinite Term (i.e., cash advances) states that the interest rate can beat “any annual rate provided in the agreement” (§975.363); §675.350 requiresdisclosure of “agreed charges.”

Loan Terms: Under §675.360, the loan document must show the: 1) date of loan, 2)amount of obligation, 3) date of its maturity, 4) nature of security, 5) name and addressof borrower, and licensee, and 6) “description of schedule of payments on that loan.”Under §675.300, the lender may request that the borrower provide insurance for anydamage or destruction to security. The section also allows the lender to obtain, assecurity for a loan, life insurance, involuntary unemployment insurance, or credit-related insurance.

Disclosures: See loan terms above.

Prohibited Acts: §675.350 prohibits the licensee from: 1) taking confession ofjudgment or any power of attorney running to himself on behalf of the borrower in ajudicial proceeding; 2) taking any note which does not disclose date and amount ofloan, schedule of payments, and rate or aggregate amount of the agreed charges; 3)taking any instruments where spaces are left blank; and 4) taking a lien on real estateas security, “except real property upon which is situated a mobile home or factory-builthousing that also secures the loan (except such lien as is created by law through therendering or recording of a judgment).

Criminal Penalties: Yes. §675.470

Civil Penalties/Enforcement: §675.370-440 provides the Commissioner of FinancialInstitutions with authority to investigate and enforce the act. §675.430 gives theCommissioner the authority to enjoin violation. §675.440 authorizes administrativeprocedure for the Commissioner to pursue suspension or revocation of a license.Grounds for license suspension or revocation include 1) a violation of the act, or 2) thediscovery of any fact that would have precluded licensing in first instance.

Applicability of State UDAP: Nevada’s UDAP statute (§586A) is broad defining service

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as “any activity performed or benefit conferred for the purpose of economic gain.” Thestatute includes private cause of action (which allows for mandatory attorney fees andcosts) and treble damages (§598A210).

Nevada Retail Installment Sales ActCitation: Nev. Rev. Stat. §§97.015-335

Applicability: §97.115 applies to retail installment contacts or charges that provide fora finance charge, and under which the buyer agrees to pay the total of payments inone or more installments (§97.165). Generally, the contract must be in a singledocument, but if it is secured by a chattel or real property mortgage, then the contractmay be 2 documents. “In a transaction involving the repair, alteration, or improvementupon or in connection with real property, the contract may be secured by a mortgageor deed of trust on the real property contained in a separate document.”

Exemptions: Retail sales transactions for home improvement which are financed orinsured by the Farmer’s Housing Administration (FHA) are not subject to theprovisions of this chapter (§97.165 (b)).

Interest Rate and Fee Caps: The amount of finance charge and any other fee orcharge may be any amount agreed upon by the parties (§97-195).

Loan Terms: The contract must contain: 1) the names of the seller and buyer, 2) theplace of business of the seller, 3) the residence of the buyer, and 4) a description ofthe goods sold or services rendered. The contract must also contain the following:cash price of each item of goods or services; the amount of the buyer’s downpayment/trade in; the difference between the cash price and trade-in; the aggregateamount, if any, included for insurance, specifying type, aggregate amount of fees;amount financed; amount of the finance charge; the amount of total payments owedby the buyer to the seller; and the number of installments required (§97-185).

Prohibited Loan Terms: It is prohibited to leave blank spaces in the contract (§97-185).

Disclosures: Details must be discloses regarding any insurance included in the costof the loan (§97.275).

Prohibited Acts: Any violation of the act is prohibited (§97.335).

Civil Penalties/Enforcement: §97.305 states that a violation of the act is a bar therecovery of finance charge or fees; the seller may recover from the buyer an amountequal to the cash price of the goods or services and the cost to the seller or lender ofany insurance included in the transaction. The Attorney General may bring an action“to restrain or prevent” a violation of the chapter (§97.315), and may accept“assurance of discontinuance” (§97.325). Civil penalties are allowed up to $1,000(§97.335).

Private Right of Action: Not specified. The language outlined above implies that theAttorney General has the sole power to enforce.

Applicability of State UDAP: Nevada’s UDAP statute (§586A) is broad and includesany violation of the Retail Installment Sales Act (RISA). A service is defined as “any

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activity performed or benefit conferred for the purpose of economic gain,” and includesprivate cause of action, which allows for mandatory attorney fees and costs, and trebledamages (§598A210).

Other: The act contains separate provisions for consolidation of contracts (§97.235),retail charge agreements (§97-245), and provisions common to both chargeagreements and contracts (§97.265-285).

UsuryCitation: Nev. Rev. Stat. §99.010-050.

Applicability: Defines interest rates when there is a contract and when there is not acontract.

Exemptions: §99.040 (2), does not apply to money owed for the construction orremodeling of a building, pursuant to §624.325; by a contractor to his subcontractor.

Interest Rate and Fee Caps: §99.050 states parties may agree for the payment of“any rate of interest on money due, for the compounding of interest, and for any othercharges or fees.” 99.040 provides for interest rate at prime rate plus 2 percent whenthere is no express contractual interest rate.

Applicability of State UDAP: Nevada’s UDAP statute (§586A) is broad, definingservice as “any activity performed or benefit conferred for the purpose of economicgain.” The statute includes private cause of action (which allows for mandatoryattorney fees and costs), and treble damages (§598A210).

Other: §99.055 contains provisions for prepayment of loans.

Mortgage Licensing ActCitation: Nev. Rev. Stat. Chapter 645B

The act provides for licensing only of mortgage lenders.

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Second Mortgage Home Loan ActCitation: N.H. Rev. Stat. Ann. §398-A

Applicability: Under §398-A:1, a lender is defined as any person making a loansecured by a mortgage; §398-A:1-a applies to anyone engaged in the business ofsecond mortgage loans unless he/she is a seller of the real estate involved. (See§397-B:2 for businesses engaged in providing first mortgages.)

Exemptions: §398-A:10 exempts: any bank, trust company, savings and loans, creditunion; person not making more than 4 mortgage loans within 12-month period “and forhis own investment without intent to resell such mortgage loans;” person receiving asecond mortgage on a purchase money obligation; lawyer, in the normal course ofbusiness; corporation making a loan for an employee; bona fide nonprofit entitygranting home mortgages for economically disadvantaged; person acting as thefiduciary of a pension fund making mortgage home loans to plan participants; andemployee of licensees (of this chapter).

Licensing Requirements: §398-A:1-a

Interest Rate and Fee Caps: The maximum interest rate is as agreed or 18 percent(§398-a:2).

Disclosures: Under §398-A:2, the lender must disclose all fees charged. (VII) Thelender may charge: fees and points, if disclosed; an application fee; and an appraisalfee. The lender must disclose the interest rate, or else the lender cannot collect it(§398-a:3). The lender must provide the borrower with a 15-day notice of the intent toforeclose (§398-A:4).

Prohibited Acts: Any violation of act is prohibited (§398-A:7). §398-a:9 prohibitsmisleading or deceptive advertising.

Criminal Penalties: A violation of the act is a misdemeanor (individual); or a felony(corporation) (§398-A:7-a).

Civil Penalties/Enforcement: Consumer complaints must be filed with the BankCommissioner, and forwarded to the lender to “investigate, and correct or explain”(§398-A:6-a). If the lender charges excessive interest, the borrower may dischargeobligation by the payment of principal only (§398-A:7-a).

Private Right of Action: Yes. §398-a:7 provides that the Superior Court hasjurisdiction over suits arising under §398-A:2, and the borrower may be entitled toattorney fees if he prevails.

Applicability of State UDAP: §358-A:2 is a broad prohibition on unfair or deceptiveacts or practices in the conduct of “any trade or commerce.” Exempt acts include“trade or commerce otherwise permitted under laws administered by any regulatoryboard or office acting under statutory authority of this state.”

Disclosure of Finance Charge ActCitation: N.H. Rev. Stat. §399-B

Applicability: The act applies to any person engaged in the business of extending

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credit (§399-B:2).

Exemptions: A finance charge statement or disclosure in a consumer credittransaction, as defined in RSA 358-K:1, V, that is made in conformity with FederalReserve Board Regulation Z, Truth in Lending (12 CFR 226) shall be deemed to fulfillthe finance charge statement required of RSA 399-B:2 (399-B:2-a).

Loan Terms: §399-B:2 requires a statement setting forth the finance charges,expressed in dollars, rate of interest, or monthly rate of charge, or combinationthereof.”

Disclosures: See §399-B:2 above

Prohibited Acts: Any non-compliance with §399-B:2 disclosure requirements isprohibited (§399-B:3).

Criminal Penalties: A violation of the act is a misdemeanor (individual), or a felony(corporation) (§399-B:4).

Private Right of Action: Not specified.


Other: The act contains provision for a “repossession procedure,” (§399-B:6) and itdefines “consumer goods” (not used in the act) as “personal, family or householdpurposes” (§399-B:8).

Regulation of Small Loan ActCitation: N.H. Rev. Stat. Ann. §399-A

Applicability: The act applies to loans of $10,000 or less (§399-A:2).

Exemptions: §399-A:2 (II) exempts: banks, trust companies, insurance companies,savings or buildings and loan associations, credit unions, or pawn brokers; personsengaged solely in business of educational loans; and persons engaged in business ofsecond mortgages under §398-A.

Licensing Requirements: Sections 399-A:2 and 399-A:12

Interest Rate and Fee Caps: Under §399-A:3 the following rates apply: closed-endloans of $1,500 or less (excluding charges), fees may not be charged more than 2percent per month, up to $600, and 1 2 percent per month between $600 and $1,500;closed-end loans of more than $1,500 but less than $10,000 (excluding charges), the“licensee may charge, contract for, and receive charges on the entire principal of theloan, at rates agreed to in writing by the borrower and licensee;” open-ended loanswith lines of credit of less than $1,500 (excluding charges), (same as (a)); open-endedloans with lines of credit between $1,500 and $10,000 (excluding charges), (same as(b)) (the section contains additional provisions prohibiting “division” of loans tocircumvent the act).

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Loan Terms: See §399-A:3

Prohibited Loan Terms: §399-a:3 prohibits: splitting loans; paying interest in advance;inducing the borrower to enter into a closed-end agreement by delivering a negotiablecheck, without proper disclosure; stating that, by endorsing the check, the borrowerbecomes legally liable for repayment; amount financed; annual percent rate number ofinstallments; amount of each installment.

Disclosures: See §399-A: 3 above. §399-A:5 requires provision of and disclosures onpayment book or Truth in Lending Act (TILA) disclosure.

Prohibited Acts: Any violation of the act (§399-A:20) or deceptive advertising isprohibited (§399-A:22).

Criminal Penalties: Any violation is a misdemeanor (§§399-A:2 and 399-A:24).

Civil Penalties/Enforcement: Under §399-A:3 (VI), a lender in violation of the act is notentitled to “collect or receive any principal, charges, or recompense whatsoever.”Under 399-A:5-a, consumer inquiries are through the Banking Commissioner, whichare sent on to the lender, who must respond and “investigate” or “explain” within 60days. A failure to respond subjects the lender to a $50 per day fine. A violation leadsto the suspension or revocation of a license (§399-A:19).

Private Right of Action: After a complaint has been submitted to the BankingCommissioner, as noted above, the consumer can then bring action in court, “basedon the record before the commissioner” (that is, provision for judicial review ofadministrative decision) (§399-A:25). There is no provision for attorney fees ordamages.


Other: §399-A:11 allows the lender to require vendor single interest (vsi) insurance andmay include as part of principal.

Rate of InterestCitation: N.H. Rev. Stat. Ann. §336:1

Applicability: The act applies to “all business transactions” (§336:1).

Exemptions: When otherwise agreed to in writing (§336:1).

Interest Rate and Fee Caps: The maximum interest rate is 10 percent, unlessotherwise agreed to in writing (§336:1).


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Door to Door Home Repair Sales ActCitation: N.J. Rev. Stat. §§17:16C-95 to 103

Applicability: This act is designed to enable a consumer to reconsider and rescind adoor to door home improvement or repair contract within 3 days (§17:16C-97).§17:16C-99 applies the act to “any home repair contract, for a purchase price inexcess of $25 which is entered into at a place other than the place of business of thehome repair contractor.”

Exemptions: A contract less than $25 is exempt.

Loan Terms: A home repair contract “receipt” is required to contain the following:contractor’s name and address; description of goods and services sold; and theamount of money paid (§17:16C-100). The receipt must also contain the standard 3-day rescission rights for a home solicitation sale.

Disclosures: See above.

Prohibited Acts: See above.

Criminal Penalties: Yes, a misdemeanor with up to a $500 fine (§17:16C-102).

Civil Penalties/Enforcement: Under §17:16C-99, the home owner may rescind within 3days, requiring the home repair contractor to “pick up, at his own expense, any goodssubject to the contract.” §17:16C-101 allows the home owner to bring action torecover the amount paid if the owner rescinded and the contractor did not return themoney and remove goods. This section provides for reasonable attorney fees andcosts of action.

Private Right of Action: Yes. See above.

Applicability of State UDAP: Yes. §56:8-1 allows the plaintiff to recover actualdamages, up to treble damages and attorney fees.

Home Repair Financing ActCitation: N.J. Rev. Stat. §§17:16c-62 to 94

Applicability: The act applies to home repairs contracts: contracts between a homerepair contractor and an owner to pay the time sales price of goods or services ininstallments over a period of time greater than 90 days §17:16C-62(c). “Goods” aredefined as: “chattel personal which are furnished or used in the modernization,rehabilitation, repair, alteration, or improvement to real property,” excepting furnaces,and air conditioners designed to be removed. §17:16C-62 (b) requires a license of thehome financing agency, home repair contractor, or home repair salesman (§17:16C-77).

Exemptions: The act does not apply to contracts under $300 which are subject to theRetail Installment Sales Act (RISA) §17:16C-62(b)).

Licensing Requirements: §§17:16C-77 to 85

Interest Rate and Fee Caps: §17:16C-68 specifies the method of calculating and

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charging interest. §17:16C-69 outlines a “credit service charge” (§17:16C-62(I)) as “theamount by which the time sales price exceeds the aggregate of the cash price and theamounts specifically included for official fees, and, if a separate charge is madetherefore, the amount included for insurance and other benefits as provided in §6(d)” inamounts agreed to by the contractor and the owner. The provision does not contain aninterest cap. §17:16C-71 provides for delinquency charge and attorney fees.

Loan Terms: §17:16C-63 requires that every home repair contract: be in writing andcontain the entire agreement; state the names and addresses of all the parties, datesof execution by the parties, and a description of goods and services; be completed infull without any blanks; contain in 10-point type the following notice: “NOTICE TOOWNER Do not sign this contract in blank. You are entitled to a copy of the contractat the time you sign. Keep it to protect your legal rights. Do not sign any completioncertificate stating that you are satisfied with the entire project before it is complete.Home repair contractors are prohibited by law from requesting or accepting acertificate of completion signed by the owner prior to the actual completion of the work…;” and stating that the contractor is covered by workmen’s compensation, or thatcontractor is exempt from workman’s compensation. §17:16C-67 requires that everyhome repair contract “state separately” essentially the standard Retail InstallmentSales Act (RISA) disclosure: cash price of goods or services to be furnished; downpayment; unpaid cash balance; amount, if any, if a separate charge is made therefore,included for credit life insurance and other benefits pursuant to Chapter 169 of the lawsof 1958, specifying coverage and benefits; official fees; principal balance; credit servicecharge; the time balance; the number of installments required, the amount of eachinstallment, and the due dates thereof.

Prohibited Loan Terms: §17:16C-64 prohibits: an acceleration clause if the holderdeems himself insecure; any agreement to pay any amount other than the time salesprice of goods or services furnished under the contract, provided that a retailinstallment contract under RISA may be included in a home repair contract; any powerof attorney to confess judgment; any provision relieving the home repair contractorfrom liability upon any claim which the owner may have under the contract; anyprovision by which the owner waives a right of action against the contractor “for anyact committed in the collection of the payments under the contract or in therepossession of the goods; any assignment of salary; any provision for a payment of acredit to any owner for the privilege of placing any sign on the premises where thework is being done, or for any recommendation to the home repair contractor thenames of any person(s) who might be interested in making an installment home repaircontract, unless such provision has been approved by the Commissioner.


Prohibited Acts: §17:16C-84 states the following grounds for revocation of a licenseunder the Chapter: making a material misstatement in the application; knowingly orwithout exercise of due care failing to comply with the act; defrauding a retail buyer orwillfully failing to perform any written agreement with an owner; willfullymisrepresenting or failing to disclose any of the material particulars required to bestated to owner under this act; knowingly taking home repair contracts containingblanks; otherwise demonstrating a lack of financial responsibility, unworthiness, badfaith, or dishonesty.

Civil Penalties/Enforcement: §17:16C-84 provides for the suspension or revocation of alicense for any violation of act. §17:16C-89 provides for a penalty of up to $2,500 “foreach offense.” Enforcement is through the Banking Commissioner who has power to

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investigate and issue subpoenas (§17:16C-86-89). If a note is executed in violation ofthe act, the contractor is precluded from finance charges (§17:16C-44).


Other: §17:16C91-92 provide for the appointment of a home improvement advisoryboard to: advise the Commissioner “concerning practices in the home improvementindustry,” administer the act, make recommendations for legislation, advise the publicconcerning “any practices in connection with home improvements which the boardmay consider contrary to the public interest,” and assist the Commissioner inconducting suspension or revocation proceedings.

Licensed LendersCitation: N.J. Rev. Stat. §§17:11c-1 to 45

Applicability: Applies to mortgage bankers or brokers, the secondary mortgage loanbusiness and the consumer loan business (§17:11C-3). Consumer loans are definedas being less than $15,000.

Exemptions: A secondary mortgage loan is defined to exclude loans covered underthe Home Repair Financing Act (§17:11C-2). §17:11C-4 exempts from the provisionsof the act: depository institutions and insurance companies; persons making orselling a mortgage not in the regular course of business; attorneys; and licensed realestate brokers. §17:11C-5 additionally exempts loans through an employer as abenefit of employment, or a municipality.

Licensing Requirements: §§17:11C-7 to 19

Interest Rate and Fee Caps: §17:11C-24 allows secondary lenders to make closed-end loans with interest agreed to by the parties, with provisions limiting increases inthe interest rate during the loan term. §17:11C-32 allows consumer lenders to makeloans with interest agreed to by the parties, with provisions that limit increases in theinterest rate during the loan term.

Loan Terms: §17:11C-26 sets forth requirements for the form and contents of asecondary mortgage loan agreement.

Disclosures: §17:11C-21 requires the disclosure of insurance to the borrower (ifapplicable).

Prohibited Acts: §17:11C-22 sets forth a number of prohibitions for mortgage bankersand brokers, including the use of fraud or misrepresentations in applying for a licenseor in dealing with a borrower. §17:11C-31 sets forth prohibited acts for secondarylenders. §17:11C-41 sets forth prohibited acts for consumer lenders, including thetaking of a lien upon real estate.

Criminal Penalties: §17:11C-48 makes a willful violation of the act a “crime of the thirddegree.”

Civil Penalties/Enforcement: Any violation under §17:11C-48 subjects the violator upto $5,000 penalty for each offense. Under §17:11C-33, a violator is precluded from

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collecting principal, interest, or fees.

Private Right of Action: Not specified


Retail Installment Sales ActCitation: N.J. Rev. Stat. §§17:16C-1 to 61

Applicability: §17:16C-1: Defines a RISA contract as a contract “entered into in thisstate between a retail seller and a retail buyer evidencing an agreement to pay theretail purchase price of goods and services, which are primarily for personal, family, orhousehold purposes, or any part thereof, in 2 or more installments over a period oftime.”

Exemptions: Under §17:16C-2, banking institutions authorized to do business in NewJersey are not required to meet the licensing requirements, although these institutionsare still subject to the act.

Licensing Requirements: §17:16C-2 to 20

Interest Rate and Fee Caps: §17:16C-40 states “No retail seller, sale finance companyor holder shall make a loan of money or advance of credit to a retail buyer inconnection with any retail installment contract, contract or otherwise receive thereon agreater rate of interest than he would otherwise be permitted by law to charge, exceptin accord with the provisions of this act; provided, however, that nothing contained inthis section shall prohibit a banking institution from making any loan which itotherwise is permitted by law to make. §17:16C-41 provides that a retail seller shallhave authority to charge a time price differential “in amounts as agreed to by the retailseller … and the buyer.” The statute also provides for increasing or decreasing timeprice differential, over life of the contract, setting limits. The statute also provides for aprepayment penalty. It is not clear how this open ended interest provision mesheswith the limitations found in the usury statutes. §17:16C-42 limits fees which can becharged for a delinquency, up to $5 per payment, and attorney fees to 20 percent ofthe first $500, and 10 percent thereafter.

Loan Terms: §17:16C-24 requires that notice be provided to the buyer not to signcontract in blank and to keep copy of contract. §17:16C-27 requires a standard (a)-(I)RISA disclosure. §17:16C-30 allows vendor’s single interest (vsi) insurance. §17:16C-38.2 requires the words CONSUMER NOTE for any note required to be executed; thenote is then no longer enforceable through UCC chs. 3 or 9.

Prohibited Loan Terms: §17:16C-22 prohibits blank spaces. §17:16C-35 prohibitsprovisions allowing acceleration of the loan if the creditor deems himself insecure.

Disclosures: See Loan Terms above.

Prohibited Acts: Any violation of the act is prohibited (§17:16C-38.3).

Civil Penalties/Enforcement: §17:16C-56 provides for a $500 civil fine for each offense.§17:16C-54 provides forfeiture of illegal charges.

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Applicability of State UDAP: Yes, §56:8-1 allows the plaintiff to recover actualdamages, up to treble damages and attorney fees.

Special Assignee Provisions: Yes. §17:16C38.2 provides that any subsequent holderof a note “shall be subject to all claims and defenses of the retail buyer against theretail seller arising out of the transaction, but no such claim or defense may beasserted against such holder in excess of the time sales price under the … contractfor any sale … .No claim or defense which the retail buyer may have against the retailseller arising out of the retail installment contract or any separate instrumentexecuted in connection therewith shall be asserted against any subsequent holder.

Small Loan Business ActCitation: N.J. Rev. Stat. §§17:10-1 to 26

Applicability: The act applies to loans of less than $5,000 (§17:10-2).

Exemptions: The act does not apply to any entity legally doing business as a bank,savings and loan, trust company, credit union, pawnbroker (§17:10-22).

Licensing Requirements (cite only): §§17:10-2 through 13

Interest Rate and Fee Caps: §17:10-14 sets the interest rate cap at “an annualpercentage rate or rates agreed to by the licensee and the borrower,” notwithstandingthe provisions of the usury law (§31:1-1). §17:10-16 states that for loans exceeding$5,000, the interest cannot exceed the amount allowed by law. No additional chargesare allowed “whatsoever for any examination, service, brokerage, commission,expense, fee, bonus, or other thing or otherwise shall be directly or indirectly charged,contracted for, or received, except (1) amounts for insurance obtained or provided bythe licensee in accordance with the provisions of this chapter; and (2) on the actualsale of security in foreclosure proceedings or upon entry of judgment.” §17:10-14.1provides for an agreement to pay credit insurance.

Loan Terms: §17:10-15 requires the licensee to deliver to the borrower a statementshowing the: 1) amount and date of loan and its maturity; 2) nature of the security, ifany; 3) name and address of borrower and licensee; 4) payment schedule; 5) amountof interest charges; and 6) annual percentage rate of interest. The licensee must alsogive receipts for all payments, permit payments to be made in advance, and provideproof of payment in full.


Prohibited Acts: §17:10-20 prohibits the charging of interest in excess of the ratesallowed by law “except as authorized by this chapter.” §17:10-13 prohibits thelicensee from: 1) using any statement or representation which refers to thesupervision by the State of the business; 2) making any representation which is false,misleading, or deceptive; 3) taking an assignment of wages; and 4) taking a lien onreal estate. (The statute contains additional prohibitions related to the conduct oflicensee’s business.)

Criminal Penalties: A violation is deemed as a misdemeanor (§17:10-21).

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Civil Penalties/Enforcement: §17:10-10: Civil enforcement by the Commissioner isallowed if the licensee has violated the act. Under §§17:10-14 and 17:10-21, anyviolation voids the contract, and the licensee cannot collect “any principal, interest, orcharges whatsoever” unless the violation was the result of good faith error.

Applicability of State UDAP: Yes, §56:8-1 allows the plaintiff to recover actualdamages, up to treble damages and attorney fees.

Interest and UsuryCitation: N.J. Rev. Stat. §§31:1-1 to 9

Applicability: §31:1-1 (a) establishes interest rates for most loans: “Except as hereinand otherwise provided by law, no person shall, upon contract, take, directly orindirectly, for loan of any money, wares, merchandise, goods and chattels, above thevalue (6 percent), or when there is a written contract specifying a rate of interest, noperson shall take above the value (16 percent).

Exemptions: §31:1-1 (b) states the Commissioner of Banking “may (by regulation)provide that the value which may be taken for any loan secured by a first lien on realproperty “on which there is erected or to be erected a structure containing 1, 2, 3, 4, 5or 6 dwelling units, a portion of which structure may be used for nonresidentialpurposes.” Such rates can be over 6 percent, but “not more than the Monthly Index ofLong-Term U.S. Government Bond Yields, compiled by the Board of Governors of theFederal Reserve System.” §31:1-1 (e) also excepts loans greater than $50,000,“except loans where the security given is a first lien on real property on which there iserected or to be erected a structure containing [1-6] dwelling units … The rate ofinterest stated in such contract upon the origination of such loans may be takennotwithstanding that payments thereon reduce the amount outstanding to less than$50,000.” Loans made by savings and loans, banks, or Housing and UrbanDevelopment (HUD) or Farmers Housing Administration (FHA) approved mortgageswhich are subsequently purchased in whole or in party by the FHA, Veteran’sAdministration (VA), FNMA, are exempt.

Interest Rate and Fee Caps: The maximun interest rate allowed is16 percent (writtencontract) with exceptions as noted above (§31:1-1 (b)).

Prohibited Acts: Charging usurious rates is prohibited.

Civil Penalties/Enforcement: A lender charging usurious rate can only recoverprincipal, not interest (§31:1-3).

Private Right of Action: Yes. Enforcement (§31:1-4), and requirement of lender to “paycosts” (§31:1-3).


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Installment Loan ActCitation: N.M. Stat. Ann. §§58-7-1, et seq.

Applicability: §58-7-2 applies to any state or national bank located in or authorized todo business in the state, to any licensee under the Small Loan Act (§58-15-1 [seesummary]) or to any sales finance company defined under the Motor Vehicle FinanceAct. §58-7-3 applies to any loan that is a precomputed loan payable in installmentsor that is clearly identified as being under this act.

Exemptions: §58-7-9 does not apply to loans made in conformance with the usury act(§§56-8-9 to 14); motor vehicle finance act (§§58-19-1 to 14); or New Mexico RetailInstallment Sales Act (NMRSA) (§§56-1-1 to 15).

Interest Rate and Fee Caps: Lenders are required to provide a refund of the unearnedportion of the precomputed charges, under the “Rule of 78ths” “which refund or creditshall represent at least as great a portion of the original charge as the sum of theconsecutive monthly balances of the contract scheduled to be outstanding after thedate of the prepayment bears to the sum of all the consecutive monthly balances ofthe contract scheduled to be outstanding under the schedule of payments” (§58-7-5).Additional charges and fees allowed include: delinquency charges not to exceed $.05for each $1 more than 10 days in arrears, up to $10; the actual cost of insurance,written by company licensed to operate in the state; vendor’s single interest (vsi);filing fees; payoff of lien on security for loan; actual collection fees, if not a salariedattorney with the lender; the actual costs of the real estate loan secured by realty,including appraisal, title costs, title insurance, survey, and notary. Truth in LendingAct (TILA) expenses are allowed up to $25 (§58-7-6).

Prohibited Acts: §58-7-8 prohibits the taking, receiving, reserving a rate of charge,discount or advantage greater than allowed under the act.

Criminal Penalties: Any violation of the act is a misdemeanor (§58-7-8).

Civil Penalties/Enforcement: §58-7-8 (B) provides for forfeiture of entire amount ofillegal charge; if already paid, the borrower gets back twice the amount charged in acivil action.

Private Right of Action: Yes. §58-7-8 (B)

Applicability of State UDAP: §57-12-7(UDAP) does not contain any exemptions whichwould apply, and broadly applies to any trade or commerce.

Mortgage Loan Companies and BrokersCitation: N.M. Stat. Ann. §§58-21-1, et seq.

Applicability: The act applies to any person transacting business in New Mexico as amortgage loan company or loan broker (§58-21-3).

Exemptions: Exemptions include: banks, savings and loans, trust companies, creditunions, attornies, in normal course of business; real estate brokers, in normal courseof business; persons acting under a court order; “persons making or acquiring amortgage loan with own funds for own investment without the intent to resell” (§58-21-

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6). Any U.S. or New Mexico company licensed under Small Business Investment Actis exempt. Persons brokering or originating loans secured by real estate who do notsell more than 10 percent of such loans to persons other than institutional investorsare exempt.

Licensing Requirements (cite only): §58-21-4

Interest Rate and Fee Caps: Allowable charges include: actual and reasonableexpenses for an abstract of title; appraisal fees; deed fees, recording fees; brokers’fees not in excess of 6 percent of the principal; fees for preparing TILA disclosures;and “such other fees as the director by regulation may permit” (§58-21-18).

Prohibited Loan Terms: No charges are allowed other than those described in §58-21-18.

Disclosures: §58-21-19 prohibits withholding and escrowing of loan proceeds, andprovides for disclosure pursuant to §56-8-11.2.

Prohibited Acts: §58-21-8 provides that the Director may suspend or revoke aregistration “when the applicant or registrant: lacks a good business reputation; hasviolated provisions of the act; charges fees in excess of amounts allowed by the act;has committed fraud; makes false representations in his business; makes falserepresentations to the Director; has violated escrow statutes; refuses to permitexamination by director of his books; or has been convicted of a felony, or anymisdemeanor involving moral turpitude.

Criminal Penalties: §58-21-22 makes a violation a fourth degree felony.

Civil Penalties/Enforcement: The Director is allowed to investigate violations. If theDirector finds violations, the Director can either refer to the District Attorney orAttorney General, or issue a cease and desist order (§58-21-15).

Private Right of Action: §58-21-25 states that the act is not intended to impair anyother remedies available under statutes or common law. A private individual wouldlikely have a cause of action under the act and a UDAP claim.


Retail Installment Sales ActCitation: N.M. Stat. Ann. §§56-1-1, et seq.

Applicability: Under §56-1-1 (H) Retail Installment Contract is defined as an instrumententered into evidencing a retail installment transaction, whether secured or unsecured.

Interest Rate and Fee Caps: There is no interest rate cap, as (I) provides that“notwithstanding the provisions of any other law, a retail installment contract mayprovide for, and the seller may then charge … a time price differential” (§56-1-2). §56-1-2(K) provides that the seller may collect a delinquency and collection charge not toexceed 5 percent of each installment or $5, whichever is less.

Loan Terms: §56-1-2 sets forth required provisions, including a notice not to sign if

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blank spaces, as well as the following: the cash sale price; the amount of the downpayment, including trade in; any difference between the sales price and trade-in price;the aggregate amount included for insurance, and specifying coverage; the amount ofofficial fees; the principal balance; the rate of time price differential; the amount of“time balance” owed (that is, the total of principal and interest); the number andamount of installment payments; the time sale price; and notice if installments not inequal amounts (if applicable). §56-1-4 contains additional provisions if insurance isincluded in the price.

Prohibited Loan Terms: §56-1-5 states that no retail installment contract shall containprovisions which: in the absence of the buyer’s default that the holder may acceleratethe maturity of any part of the loan or all the amount owing thereunder; a power ofattorney is given to confess judgment, or an assignment of wages; the seller or holderis given authority to enter upon the buyer’s premises unlawfully or to commit anybreach of peace in repossessing goods; buyer waives right of action against seller orholder or other person, for an illegal act committed by seller or holder; buyer executespower of attorney appointing the seller or holder or other persons as buyer’s agent incollection of payments; the buyer agrees not to assert against the seller or assigneea defense arising from claim.

Disclosures: See Loan Terms above.

Prohibited Acts: Any violation of the act is prohibited §56-1-9.


Civil Penalties/Enforcement: A violation of the act bars the lender from any recovery(§56-1-9). The Attorney General may seek an injunction to prevent violation (§56-1-110). A penalty for a violation of the injunction is a civil penalty of not more than$1,000 (§56-1-112).

Private Right of Action: §56-1-9 bars the recovery of illegally collected interest.


Special Assignee Provisions: Yes. The assignee may purchase or acquire any retailcontract or outstanding balance from a seller; filing of the assignment, notice to thebuyer of the assignment, etc., “shall not be necessary to the validity of a writtenassignment of the retail installment contract as against creditors.” Unless the buyerhas a notice of assignment, any payment by the buyer to the last holder known isbinding on all subsequent holders (§56-1-6).

Small Loan ActCitation: N.M. Stat. Ann. §§58-15-1, et seq.

Applicability: The act applies to loans up to $2,500 (§58-15-3).

Exemptions: §58-15-3 exempts: individual advances of less then $2,500 for whichrealty is pledged as collateral; banks; savings and loans; credit unions; and pawnbrokers.

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Licensing Requirements (cite only): §§58-15-4, 5 and 6

Interest Rate and Fee Caps: The interest rate cap was repealed. This law is alicensing and disclosure law. §58-15-20 allows filing or recording fees, but not notaryfees.

Loan Terms: A lender must deliver, at time of the loan, a disclosure of the amount ofloan; date loan was made; schedule of payments; type of security; name and addressof licensed office; name and address of obligor; amount of principal; amount ofinterest; and the amount of any other charge allowed under the act.


Prohibited Acts: Any violation of the act is prohibited.


Civil Penalties/Enforcement: §58-15-3 (E) prohibits anyone violating act from collectingprincipal or interest, but does not set forth the method of adjudication.

Private Right of Action: Implied in that lender in violation cannot collect principal andinterest


Special Assignee Provisions: §§58-15-21 and 22 equates payment of up to $2,500 inconsideration of an assignment of wages with a loan.

Money, Interest and Usury/Residential Home Loan ActCitation: N.M. Stat. Ann. §§56-8-1, et seq.

Applicability: The act fixes the maximum interest rate at 15 percent, “in the absenceof a written contract specifying a different rate” (§56-8-3). The Residential Home LoanAct’s purpose is to “make funds for residential home financing (including homeimprovements) available to New Mexicans at national market rates” (§56-8-23-30). Theprovisions setting forth the allowed interest rates were repealed (§56-8-25).

Exemptions: §56-8-3 exempts written contracts.

Interest Rate and Fee Caps: §56-8-3 caps interest rates at 15 percent “in the absenceof a contract.” The interest caps for open-ended accounts is 15 percent, except that“parties may set a higher rate by agreement” (§56-8-5); §56-8-7 sets rates allowablefor “negotiating or securing a loan.” §56-8-11 which set interest rate caps for contractswas repealed, so if there is an agreement, there is no cap on interest rates allowed.§56-8-9 additionally allows the lender to charge 3 percent in points “in addition to themaximum interest or discount” allowed, for interim construction loans. Further, thelender may take points or premiums on any other loan secured by realty as long as itdoes not exceed the maximum allowed by law.

Prohibited Acts: §56-8-13 prohibits taking, charging, or receiving interest greater thanallowed by the act. Since there is no ceiling, except where no agreement is in place,��7��

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this only applies where there has been no agreement setting interest.


Civil Penalties/Enforcement: §56-8-13 provides for forfeiture of interest; if the interestis already paid, then the debtor may recover twice the interest paid, if the action isfiled within 2 years.

Private Right of Action: Yes. (§56-8-13)


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Retail Installment Sales ActCitation: N.Y. Pers. Prop. Law §§9-401 to 422

Applicability: The act applies to agreements entered into in this state, pursuant towhich title to, the property or a security interest in or lien upon goods, which are thesubject matter of a retail installment sale, is retained or taken by a retail seller from aretail buyer as security, in whole or in part, for the buyer’s obligation (§401(6)).

Exemptions: None specified.

Interest Rate and Fee Caps: A seller may collect a credit service charge of up to 10percent (up to $500) and 8 percent (over $500) (§404).

Loan Terms: §402 requires that the contract date and in writing in 8 point type; containthe entire agreement; inlcude the names of the seller and buyer, place of business ofthe seller, residence of the buyer, and an adequate description of the services andgoods; set forth the Truth in Lending Act (TILA) disclosure; contain additionaldisclosures if all payments are not equal. In addition, a contract cannot contain blankspaces. The contract must disclose if the cost of insurance is going to be procuredby the seller or the buyer. The contract may allow for the payment of a delinquencycharge, but not to exceed 5 percent of the payment due, or $5. The act also containsprovisions for credit upon the anticipation of payment (§408), refinancing (§409), addons to and consolidations (§410). §413 contains provisions for retail installment creditagreements.

Prohibited Loan Terms: A provision providing for payment of attorney fees in collection“shall be null and void” (§402 (6-a)). Any waiver of rights provision is void andunenforceable (§402 (6-b)). The agreement may be contained in multiple documents,but any separate document must state that it is part of a retail contract (§402 (7)).

Prohibited Acts: Any violation of the act is prohibited (§414).

Criminal Penalties: Any violation of the act a misdemeanor (§414(1)).

Civil Penalties/Enforcement: Forfeiture of credit service charges, delinquencies,collections, extensions, or deferral charges may be imposed (§414(2)).

Applicability of State UDAP: Article 22A, Consumer Protection from Deceptive Actsand Practices (§349) applies to the conduct of “any business, trade, or commerce” orin the furnishing of any service in the state.”

Special Assignee Provisions: No contract “will cut off as to third parties any right ofaction or defense which the buyer may have against the seller” (§403). Unless thebuyer has a notice of the actual or intended assignment, any payment made to thelast holder of the agreement shall be binding upon all subsequent holders (§406).§411 sets forth terms allowing the assignment of contracts to financing agencies.

Other: Article 10-A, §§425 to 431 is the Door to Door Sales Protection Act.

Licensed Lenders (Small Loans)Citation: N.Y. Banking Law, Article IX, §§340 to 365

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Applicability: The act applies to lenders lending under $4,000 (§340).

Exemptions: Other licensed lenders (§366)

Licensing Requirements: §§340 to 352

Interest Rate and Fee Caps: The lender may charge rates “agreed to by the licenseeand the borrower” (§352).

Loan Terms: §353 requires: 1) TILA disclosure; 2) the lender to give the borrower areceipt for each payment; 3) permissibility of payments in advance; 4) payment in fullnotation; 5) the loan to disclose the principal amount of the loan; 6) a clear descriptionof the payments required, and agreed rate of interest; and 7) the contract cannot haveany blanks. Confessions of judgment are not allowed.

Prohibited Loan Terms: See above.


Prohibited Acts: Receiving greater interest than allowed by the law is a prohibited act(§357).

Criminal Penalties: A violation of the act is a misdemeanor (§358).

Civil Penalties/Enforcement: “Any contract of loan, not invalid for any other reason, inthe making or collection of which any act shall have been done which constitutes amisdemeanor under this section shall be void and the lender shall have no right tocollect or receive the principal, interest or charges whatsoever” (§358).

Private Right of Action: Implicit in the above.

Applicability of State UDAP: Article 22A, Consumer Protection from Deceptive Actsand Practices (§349 ) applies to the conduct of “any business, trade, or commerce” orin the furnishing of any service in the state.”

Rate of InterestCitation: N.Y. Gen. Oblig. Law §§5-501 and 14(a)

Applicability: The act applies to any loan or forbearance of money (§5-501).

Exemptions: §5-501 (5) does not apply to a loan or forbearance insured by a federalhousing act. §5-501 (6) does not apply to any loan exceeding $250,000.

Interest Rate and Fee Caps: The maximum interest rate is the maximum rateproscribed by the Banking board pursuant to §14 -a of the Banking law, or if no ratehas been proscribed, 6 percent. §14-2 sets the interest rate at 16 percent (§5-501).

Prohibited Acts: Under §5-501(2), no person shall directly or indirectly charge, take,or receive any money, goods or things in action as interest on the loan or forbearanceof money at a rate exceeding 16 percent.

Civil Penalties/Enforcement: A borrower may recover “the amount of money so paidabove the rate foresaid” (§5:513). A borrower is not required to pay off any money due

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under a usurious contract before bringing an action against the lender (§5-515). Anyperson who shall pay or return money, goods or other things so taken, or the valuethereof, shall be discharged from any other or further forfeiture which he may haveincurred (§5-519).

Private Right of Action: Yes. §5-515

Applicability of State UDAP: Article 22A, Consumer Protection from Deceptive Actsand Practices (§349) applies to conduct of “any business, trade or commerce” or inthe furnishing of any service in the state.”

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North Carolina Consumer Finance Act (Small Loans)Citation: N.C. Gen. Stat. §§53-164 to 191

Applicability: No person shall engage in the business of lending in amounts of$10,000 or less without first having obtained a license (§53-166).


Interest Rate and Fee Caps: §53-173 allows charges on loans up to $3,000 at 36percent for the first $600, and 15 percent thereafter. “In lieu of making loans in theamount and at the charges stated in §53-173 (above), a licensee may make loans ininstallments not exceeding $10,000,” repayable within 84 months, and which shall notbe secured by deeds of trust or mortgages on real estate, at the following rates:loans up to $7,500, 30 percent on first $1000, then 18 percent on remainder; andloans from $7,500 to $10,000, 18 percent. In order to make loans within thisprovision, licensee must file a written statement with the Commissioner to that effect(§53-176). The licensee may collect recording fees (§53-177) and fees for returnedcheck (§53-175). Further charges or insurance commissions shall be directly orindirectly contracted for (§53-178).

Loan Terms: §53-180 sets forth limitations on the duration of certain loans.

Disclosures: The lender is required to deliver to the borrower the following information:name and address of licensee and one of the primary obligors on the loan; date ofloan contract; schedule of loan installments; cash advances; face amount of noteevidencing the loan; amount collected or paid for insurance; filing fees allowed;collateral; if a refinancing loan, then further information (§53-181).

Prohibited Acts: §53-183 prohibits advertising or broadcasting of misleadingstatements with regard to the rates, terms, and conditions of loans.

Criminal Penalties: Any violation of the act is a misdemeanor (§53-166(c)).

Civil Penalties/Enforcement: Any contract in violation of the act is void and thelicensee has no right to collect any principal or charges whatsoever (§53-166(d)). TheBanking Commission and Commissioner has the power to regulate, issuesubpoenas, and seek injunctions (§53-187).

Applicability of State UDAP: Yes. North Carolina’s UDAP (§75-1.1) is broad, andincludes a citizen suit provision (§75-16), and an attorney fee provision (§75-16.1).

Retail Installment Sales ActCitation: N.C. Gen. Stat. §§25A-1 to 25A-45

Applicability: The act applies to consumer credit sales, defined as a sale of goods orservices in which the seller is one who in the ordinary course of business regularlyextends or arranges for the extension of consumer credit, the buyer is a naturalperson, the goods or services are for personal, family, or household purposes, thedebt is to be paid in installments, and the debt does not exceed $25,000, except fordebts secured by real property or a manufactured home in which case there is nolimit. The act reflects the Consumer Credit Protection Act.

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Interest Rate and Fee Caps: Under §25A-15, the maximum interest rates are: 24percent for loans under $1,500; 22 percent for loans between $1,500 and $2,000; 20percent for loans $2,000 to $3,000; and 18 percent for loans over $3,000. The sellermay charge for insurance (§25A-17). Default charges are allowed up to $6 (§25A-29);§25A-30 allows deferral charges of 1 2 percent for each deferral.

Loan Terms: The act does not contain standard Retail Installment Sales Act (RISA)loan terms. “Every consumer credit installment sales contract shall be in writing,dated and signed by the buyer” (§25A-28).

Prohibited Loan Terms: Prohibited loan terms include: a confession of judgment(§25A-18); acceleration other than for breach of contract (§25A-19); and disclaimer ofwarranty (§25A-20).

Disclosures: Home solicitation sales, and the standard 3-day cancellation disclosures(§§25A-38 to 42)


Civil Penalties/Enforcement: If the contract requires the payment of a finance chargenot more than twice that allowed, the seller shall not be allowed to recover any financecharge, and shall be liable to the buyer for 2 times the amount of the finance chargereceived (§25A-44(1)). If the contract requires finance charge of more than twice thatallowed, the contract shall be void, and the buyer may retain without any liability thegoods purchased (§25A-44(2)). If the seller refuses to provide the rebate as required,then the buyer is entitled to 3 times the sum due (§25A-44(3)). The prevailing seller orbuyer is entitled to attorney fees (§25A-21).

Private Right of Action: Yes. §25A-44(5)

Applicability of State UDAP: Yes. §25A-44(4) makes any violation of the act is anunfair trade practice.

Special Assignee Provisions: The buyer may assert against the seller, assignee, orholder any defenses he has against the seller, and may not waive them (§25A-25).

Interest RatesCitation: N.C. Gen. Stat. §§24-1 to 24-11.2

Applicability: The act applies to the established interest rates for contracts. §24-1.1(1) establishes interest rate caps for contracts under $25,000. §24-1.1(2)establishes interest rate caps for contracts over $25,000. §24-1.1A establishesinterest rate caps for first mortgages. §24-8 establishes interest rate caps for loansunder $300,000. §24-10 establishes rates for loans secured by realty. §§24-12 to 17apply to loans secured by secondary or junior mortgages where the principal amountof the loan is less than $25,000. §§53-141 specifically applies interest rate limits tobanks (§24-1 to 11.2).

Exemptions: The provisions of §§24-12 to 24-17 (loans secured by secondary or juniormortgages) do not apply to loans made by banks, insurance companies, or creditunions, or to any other lender licensed by and under the supervision of theCommissioner of Insurance.

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Interest Rate and Fee Caps: For loans under $25,000, the rate is the rate for TreasuryBills, plus 6 percent (§§24-1.1 (1) and (3)). For loans over $25,000, a rate agreedupon by the parties (§24-1.1(2)). For loans secured by first mortgages: if over$10,000, an amount agreed upon by the parties; if under $10,000, an amount agreedupon by the parties if lender is approved or guaranteed by Farmer’s HomeAdministration (FHA), Veteran’s Administration (VA), for example; if the lender is notapproved or guaranteed, then the interest rate is 16 percent (§24-1.1A). §24-10 setslimitations on fees or discounts a lender can charge for loans secured by realty. §24-10.1 limits late fees which can be charged. §24-14 limits interest on secondarymortgages at 18 percent.

Prohibited Acts: Charging usurious rates is prohibited (§24-2).

Criminal Penalties: A violation of the secondary mortgage act is a misdemeanor (§24-17).

Civil Penalties/Enforcement: The penalty for usury is the forfeiture of the entireinterest which the note carries. If the interest has already been paid, then the debtormay recover twice the interest paid (§24-2).

Private Right of Action: Yes, as an action or a counterclaim (§24-2)

Applicability of State UDAP: Yes. North Carolina’s UDAP (§75-1.1) is broad, andincludes a citizen suit provision (§75-16) and an attorney fee provision (§75-16.1).

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Retail Installment Loan ActCitation: N.D. Cent. Code §§51-13-01 to 08

Applicability: The act applies to any agreement under which the title to or a lien uponpersonal property which is the subject matter of the sale is retained by a retail selleras security in whole or in part for the buyer’s obligation (§51-13-01(10)).

Exemptions: No provision of the chapter applies to the retail installment sale ofpersonal property, if the cash price exceeds $25,000; personal property is to be usedprimarily for business, commercial, or agricultural purposes (§51-13-06.2).

Interest Rate and Fee Caps: The 1991 amendments to §51-13-03 (“Finance ChargeLimitation”) state that a retail seller may contract for in a retail contract and charge,receive, and collect the finance charge computed on the principal balance of thecontract or obligation from the date thereof until paid. The “finance charge must beinclusive of all charges incident to investigating and making the contract, and for theextension of credit provided for in the contract and no fee, expense or other chargewhatsoever may be taken except as provided for in this section and in §51-13-02(2)(which defines “cash price”)” (§51-13-03(4)). Thus, the interest rate cap must be thatset forth in the usury statutes (§47-14-09).

Loan Terms: §51-13-02 establishes loan requirements and requires Truth in LendingAct (TILA) or comparable disclosure. §51-13-02(c) requires the following: name andaddress of the parties and a description of the personal property subject to theagreement; cash price; amount of downpayment/trade-in; difference between the cashprice and downpayment/trade-in; amount required for insurance, if any; amount, if any,for official fees; the amount financed; finance charge, if any; total of payments; thenumber of installments required, the amount of each installment and the date due;deferred payment price; explanation if one installment substantially exceeds otherinstallments; and any balloon payments. In addition, the act requires the disclosure ofany insurance required and if it is to be procured by seller, that the seller send copy ofthe policy to the buyer within 30 days. The act provides for the payment of adelinquency fee and prohibits blank spaces in the contract.

Prohibited Loan Terms: No contract may contain any provision by which: in theabsence of default, the holder may accelerate; a power of attorney is given to confessjudgment or assign wages; there is a waiver of rights against seller or holder for illegalact in collecting; power of attorney exits appointing the seller or holder as the buyer’sagent in the collection of payments; the buyer relieves the seller of liability for anylegal remedies which the buyer may have against the seller; “the buyer maysubsequently include the title to or a lien upon any goods, other than the personalproperty which is the subject matter of the … contract” (§51-13-02.1).


Prohibited Acts: A violation of act is prohibited.

Criminal Penalties: A violation of the act is a Class A misdemeanor (§51-13-07).

Civil Penalties/Enforcement: A willful violation bars the recovery of finance charge ordelinquency or collection charges on any retail installment contract (§51-13-07).

Private Right of Action: To adjudicate the above damages

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Applicability of State UDAP: §51-15-01, et seq. is broad and covers Retail InstallmentSales Act (RISA) violations, and provides for actual damages, treble damages, andattorney fees.

Special Assignee Provisions: Yes. A financing agency may purchase an installmentcontract from a seller on such terms as may be agreed upon (§51-13-06.1). No filingof assignment, or notice to the buyer of assignment, shall be necessary to the validityof a written assignment.

Other: §51-18-01 of RISA regulates home solicitation sales. §51-18-02 provides thebuyer with the standard 3-day cancellation period. §51-18-04 requires a notice to thebuyer of his rights to cancel. §51-18-06 requires the seller, within 10 days ofcancellation, to terminate any security agreement. §51-18-07 gives the buyer theresponsibility to return any goods purchased, after cancellation. §51-18-08 exceptsfrom this provision insurance sales and sales of goods over $25,000.

Consumer Finance (Small Loan) ActCitation: N.D. Cent. Code §§13-03.1 to 19

Applicability: The act applies to persons “lending in amounts not to exceed $35,000”(§13-03.1-03).

Exemptions: §13-03.1-02 (2) exempts banks, savings and loans, trust companies,credit unions, as well as pawn shops operating under a pawnbroker license.

Licensing Requirements: §§13-03.1-05 to 13-03.1-14

Interest Rate and Fee Caps: For loans between $1,000 and $35,000, lenders may setcharges “at any rate agreed upon by the parties” (§13-03.1-15). §13-03(4) states that“no further amount whatsoever in addition to the charges provided for in this chaptermay be directly or indirectly charged … . No agreement may provide for the paymentby the debtor of attorney fees”. For loans under $1,000, lenders may chargemaximum interest rates between 30 percent (for loans up to $250) to 18 percent (forloans between $750 and $1,000) (§13-03.1-15.1).

Loan Terms: §13-03.1-16 (1) requires that receipts must be provided for cashpayments, permitting payment in full in advance, and evidence of payment in full oncepaid.

Prohibited Loan Terms: §13-03.1-16 (2) prohibits a lender from taking a confession ofjudgment or power of attorney, or from taking an instrument in which blanks are left tobe filled in after the loan is made.

Prohibited Acts: Any violation of the act is prohibited (§13-03.1-09).

Criminal Penalties: A violation of the act is a Class A misdemeanor (§13-03.1-18).

Civil Penalties/Enforcement: Under §13-03.1-09, license may be suspended orrevoked for willful violation of the act, or if “facts or conditions exist which would clearlyhave justified the administrator in refusing to grant a license had these facts orconditions been known to exist at the time the application for the license was made.”A violator cannot collect interest or charges (§13-03.1-18).

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Private Right of Action: Not specifically.

Applicability of State UDAP: §51-15-01, et seq. is broad enough and covers RISAviolations, and provides for actual damages, treble damages and attorney fees.

Other: §13-03.1-17 allows insurance to be part of a contract if the purchase isvoluntary and is not a condition of the making of the loan, and if the “insurancepurchase is related to and written in connection with the making of a loan under thischapter.” “Any gain or advantage in the form of commission or otherwise to thelicensee from such insurance or its sale is not deemed to be an additional or furthercharge in connection with the contract or loan.”

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Second Mortgage Security LoansCitation: Ohio Rev. Code Ann. §§1321-51 to 60

Applicability: No person may “advertise, solicit, or hold himself out as willing to makea loan secured by a mortgage on a borrower’s real estate which is other than a firstlien on the real estate or as willing to act as a broker for such loans” (§1321.52).

Licensing Requirements: §§1321.52 to 56

Interest Rate and Fee Caps: §1321.57 (a) sets the interest rate cap at 21 percent.However, §1321.57 gives “temporary authority” to set the maximum interest rate at 25percent. §1321.57 and §1321.13 set forth insurance allowed to be charged; for loanssecured by real estate, the lender can charge up to 2 points, and a prepaymentpenalty not in excess of1 percent. In addition, §1321.57(H) allows “costs anddisbursements to which the registrant may become entitled by law in connection withany suit to collect a loan or any lawful activity to realize on security interest, exceptfor the following additional charges which may be included in the principal amount:fees to file or release security and closing costs.

Disclosures: See insurance disclosure provisions (§1321.57 (E), (F), and (I)).

Prohibited Acts: Charging more than allowed under the act is prohibited.

Criminal Penalties: Any violation of §1321.52 is a fifth degree felony (§1321.99).

Civil Penalties/Enforcement: Any person who willfully violates the act shall forfeit tothe borrower twice the amount of the charges contracted for, unless a greater forfeitureis required by another law applicable to the transaction” (§1321.56).

Private Right of Action: Not specified

Applicability of State UDAP: Yes. §§1345.01 to 13 broadly defines consumertransaction. Ohio UDAP also contains a separate provision requiring homesolicitation sales (§1345.21-28) to include a 3-day cancellation period, and considersit a UDAP not to comply. This applies to any home improvement loan made by a doorto door sale.

Retail Installment SalesCitation: Ohio Rev. Code Ann. §§1317.01 to 24

Applicability: Retail installment sales are defined to include retail installmentcontracts selling specific goods, consumer transactions in which the cash price maybe paid in installments over a period of time, and retail sales of specific goods to anyperson in which the cash price may be paid in installments over time (§1317.01(A)).

Exemptions: Retail installment sales do not include lease-purchase arrangements(§1317.01(A)).

Interest Rate and Fee Caps: A seller cannot charge the greater of 1. 8 percentinterest, plus certain fees as service charges, if the principal balance is less than$700; or 18 percent (§1317.06(A)). But §1317.061 allows “as an alternative” to ratesabove a rate agreed to up to 25 percent.

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Loan Terms: A variation on the standard disclosure is required, which requires: cashprice of specified goods; amount in cash of the down payment or trade in; unpaidbalance of the cash price; cost to the buyer of any insurance required principalbalance owed on the contract; finance charge; time balance (§1317.04). Anypurchase requiring insurance must be disclosed, and policy of insurance must bedelivered to buyer (§1317.05). §1317.09 allows the buyer to satisfy an obligation in fullprior to term, and to receive a refund credit.


Civil Penalties/Enforcement: A buyer is required to contact a seller in writing regardingany overcharge (§1317.08). “In order for a retail buyer to avail himself of this section,the buyer must prove that the retail seller was notified in writing of the overcharge andfailed within 10 days of such notification to advise the buyer of a full credit, or thebuyer must prove the overcharge was willful.” If charges are greater than allowed, theretail buyer may recover the total amount paid tot he retail seller.

Private Right of Action: §1317.08 contemplates a private right of action.

Applicability of State UDAP: Yes. §§1345.01 to 13 broadly define consumertransactions. Ohio UDAP also contains a separate provision requiring homesolicitation sales (§1345.21-28) to include a 3-day cancellation period, and considersit a UDAP not to comply. This applies to any home improvement loan made by a doorto door sale.

Special Assignee Provisions: §§1317.031 and 032 allow a buyer to assert against anyholder, assignee, or transferee of the note any defense that the buyer may assertagainst the seller that is authorized by this chapter. §1317.032 further requires abuyer, before going after a holder with a defense to the sale, to present the claim tothe original seller, with a notice to a holder. If the original seller does not respond,then the provider requires a suit to be brought within a time frame of note, or 2 years,whichever is earlier.

Small LoansCitation: Ohio Rev. Code Ann §§1321.01 to 1321.20

Applicability: §1321.02 states that “no person shall engage in the business of lendingmoney, credit, or choses in action in amounts greater than $5,000 … without havingfirst obtained a license.”

Exemptions: §1321.02 exempts from the act “banks, savings banks, savingssocieties, trust companies, credit unions, savings and loan associations, wheresubstantially all of the business of which is confined to loans on real estate mortgagesand evidences of their own indebtedness,” registrants conducting business pursuant to§§1321.51-60 (second mortgage security loans) or licensees doing business pursuantto sections 1321.71-83 (insurance premium finance companies).

Licensing Requirements: §§1321.02 to 09

Interest Rate and Fee Caps: A licensee may contract for and receive interest,calculated according to the actuarial method, at a rate or rates not exceeding 28percent (up to $1,000), and 22 percent on any part of the unpaid principal balance

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exceeding $1,000” (§1321.13). However, as with Ohio Retail Installment Sales Act(RISA), §1321.131 gives “temporary authority” to charge up to 25 percent. §1321.13also contains provisions governing insurance charges, including vendor’s singleinterest (vsi) insurance. The act also allows a loan origination charge of up to 30percent, depending on the size of the loan. Finally, the act provides for a defaultcharge for any installment not paid within 10 days.

Disclosures: §1321.13 (E) B(H) provides for notification by and to both parties ifinsurance is included in the contract. §1321.14 lists other requirements, includingdelivery to borrower of a statement “in the English language” disclosing the amountand date of loan, schedule of payments or description thereof, type of security, if any,name and address of licensee, and agreed rate of interest; it requires the lender toprovide a receipt; permit payment in advance; and requires “payment in full” to beentered on a paid contract.

Prohibited Acts: A violation of act is prohibited (§1321.14). The licensee cannotinduce the borrower to enter into more than 1 loan which together would cause theinterest to go above the amount allowed (§1321.15). “No licensee shall charge …interest or charges greater than such licensee would be permitted to charge …without a license under §§1321.01 to 19 … on any part of an indebtedness for one ormore than 1 loan of money if the amount of such indebtedness is in excess of $5,000(§1321.15(B)).

Criminal Penalties: A violation of §1321.02 (licensing requirements) results in a $100-500 fine; a violation of §1321.13 (interest limitations) results in fine of $100-500 andimprisonment up to 6 months; a violation of §1321.14 (license violations) results in afine of $50-$250, and prison up to 6 months (§1321.99).

Civil Penalties/Enforcement: If the licensee “willfully violates” the act, the licenseeforfeits to the borrower twice the amount of interest contracted for (§1321.14).§13321.08 provides for suspension or revocation of license for a violation of the act.§1321.10 gives the division of consumer finance rulemaking authority. §1321.10 givesauthority to seek an injunction.

Private Right of Action: Not clear. It is likely that the above penalties would need to beadjudicated.

Applicability of State UDAP: Yes. §1345.01 to 13 broadly defines consumertransactions. Ohio UDAP also contains a separate provision requiring homesolicitation sales (§1345.21-28) to include a 3-day cancellation period, and considersit a UDAP not to comply. This applies to any home improvement loan made by a doorto door sale.

Interest and UsuryCitation: Ohio Rev. Codes Ann. §§1343.01-05

Applicability: §1343.01(A) sets a rate of 8 percent (see Exemptions).

Exemptions: §1343.01(B) lists the following exceptions: original amount ofindebtedness exceeds $100,000; payment is to a broker for carrying a debit balancein an account for a customer if such debit balance is payable on demand and securedby stocks, bonds or other securities; the instrument is secured by a mortgage or deed

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of trust of real estate guaranteed or purchased by the federal government; theinstrument is secured by real property “which does not otherwise qualify for anexemption from the provisions of this section, except that such rate of interest shallnot exceed 8 percent in excess of the discount rate on ninety-day commercial paperin effect at the Federal Reserve Bank; instrument is payable on demand in oneinstallment and is not secured by household furnishings or other goods used forpersonal, family, or household purposes; loan is to a business, unless secured by apersonal guarantee.

Interest Rate and Fee Caps: (See above) §1343.011 establishes limits for discountpoints on residential mortgages.

Prohibited Acts: Exceeding interest rate caps is prohibited (§1343.05).

Civil Penalties/Enforcement: Payments of usurious interest are deemed payments ofprincipal, and cannot collect on excess interest (§1343.04).


Applicability of State UDAP: Yes. §§1345.01 to 13 broadly define consumertransactions. Ohio UDAP also contains a separate provision requiring homesolicitation sales (§1345.21-28) to include a 3-day cancellation period, and considersit a UDAP not to comply. This applies to any home improvement loan made by a doorto door sale.

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Oklahoma UCCC – Consumer Credit SalesCitation: Okla. Stat. Tit. 2 §§101 to 605

Applicability: The act applies to consumer credit sales, including home solicitationsales and consumer leases (Tit. 2 §102). Consumer credit sales include the sale ofgoods, services, or land in which: credit is granted by a person who regularly engagesas a seller in a credit transaction; the buyer is a person other than an organization;goods are purchased primarily for personal, family, or household purposes; the debt isin installments or a credit service charge is made; and the amount financed does notexceed $45,000 (§104).

Exemptions: The act does not apply to: sales in which the seller allows the buyer topurchase goods pursuant to a lender credit card; and sales of an interest in land if thecredit service charge does not exceed 13 percent (§104 (2)).

Interest Rate and Fee Caps: The seller may receive up to 21 percent on unpaidbalances (Tit. 2 §201). The following charges are allowed: official fees, closing costsand taxes; charges for insurance, other than insurance protecting against the buyer’sdefault or other credit loss; charges for other benefits conferred upon the buyer,including insurance if the benefits are of value to him and if the charges arereasonable in relation to the benefits; charges to cover the costs associated withprocessing applications, including but not limited to the cost of credit investigation.§202.1 allows a fee for return of dishonored check (§202). Allowable charges include:1) charges for over the limit charges on charge accounts (§202.2); 2) delinquencycharges (§203); 3) deferral charges (§204); 4) credit service charges upon refinancing(§205); 5) credit service charges on consolidation (§206); and 6) §207 credit servicecharges for revolving charge accounts.

Loan Terms: §301 requires disclosures that is consistent with Federal ConsumerCredit Protection Act disclosure; §302 spells out how those disclosures are to bemade. §302 (3) requires that disclosure be made prior to the credit being extended.§309 requires that transactions in which a mortgage, or deed of trust, for example,arising under an installment sales contract, creating a consensual security interest inthe buyer’s principal dwelling, if the transaction is also subject to Real EstateSettlement Protection Act (RESPA), “good faith estimates of the disclosures requiredby this part shall be made in accordance with the rules of the Administratorconcerning estimates before credit is extended,” or shall be delivered within 3 daysafter the buyer’s written application. §304 requires disclosure of the calculation ofinterest and rate.

Disclosures: See above. §305 requires an additional disclosure for sales made bytelephone or mail to be rescinded within 15 days. §501-505 contains standard homesolicitation cancellation rights, which must be provided to the buyer in a notice.

Prohibited Acts: If the seller voluntarily accepts goods subject to a sale which has asecurity interest, and the cash price of the goods was under $1,000, then the sellercannot hold the buyer liable for the deficiency (§103). §107 prohibits “extortionateextensions of credit,” involving threats of violence or interest exceeding 45 percent.§202 prohibits charging an interest rate greater than allowed under the act.

Criminal Penalties: §§301 and 302 set forth the criminal penalties for violation of theOklahoma Uniform Commercial Credit Code (UCCC).

Civil Penalties/Enforcement: Enforcement of the act for consumer credit and sales is

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covered under Article 5, Remedies and Penalties, of the Oklahoma UCCC (Tit. 5,§§101 to 205). Under §108, if a clause is found to be unconscionable by the court,the court may refuse to enforce the agreement, or that portion found to beunconscionable. A debtor is entitled to a refund of any excess charges (§202 (3)). Ifthe seller refuses to make a refund within a reasonable time, the debtor may recover apenalty in an amount not exceeding the greater of either the amount of the creditservice or loan finance charge, or 10 times the amount of the excess charge (§202(4)).§203 sets forth civil liability for violation of the disclosure provisions: actual damages;twice the amount of the credit service charge or 24 percent of the total amount ofmonthly payments, but in no event less than $100 or more than $1000; costs of actionand reasonable attorney fees. The act also determines allowable damages and fees ina class action. §204 provides a separate right to rescind certain transactions, withappropriate notice requirements. §202(4) allows a party with a right to rescind towaive that right if the “… extension of credit is necessary in order to meet a bona fidepersonal emergency.” To modify or waive the right, the person shall give the creditor adated written statement that describes the emergency, specifically modifies or waivesthe right to rescind, and bears the signature of the persons with the right to rescind.”§205 provides that refunds or penalties which a party may be entitled to may be set offagainst the debtor’s obligation, and may be raised as a defense to any suit.

Private Right of Action: Implicit in the above language

Applicability of State UDAP: Tit. 78 §51 is broad and includes UCCC violation, andprovides for actual damages and attorney fees.

Special Assignee Provisions: An agreement by the buyer or lessee not to assertagainst an assignee a claim or defense arising out of the sale or lease is enforceableonly by an assignee not related to the seller or lessor who acquires the contract ingood faith and for value, who gives the buyer or lessee notice of the assignment asprovided in this section and who, within 30 days received no written notice of factgiving rise to a claim or defense” (Tit.2, §404). A creditor or assignee does not haveliability under the disclosure provisions of the title, if within 60 days of discovering theerror, and prior to the institution of an action or receipt of written notice, the creditornotifies the person in writing of the error and makes whatever adjustments necessaryto assure that the person will not be required to pay a charge in excess of thatactually disclosed (Tit. 5 §203 (2)).

Oklahoma UCCC-LoansCitation: Okla. Stat. Tit. 3, §§101 to 3-605 (penalty provisions found in Okla. Stat.Tit.5, §§101 to 302)

Applicability: The act establishes loan finance charges and other requirements forunsupervised loans (§§201 to 210) and supervised loans (§§501 to 514), anddisclosure provisions for both (§§301 to 312.)

Exemptions: The act does not apply to loans primarily secured by an interest in land,if at the time the loan was made, the value of the collateral is substantial in relation tothe amount of the loan, and the loan finance charge does not exceed 13 percent(§105).

Licensing Requirements: For supervised loans, §§501 to 507 establishes licensingrequirements.

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Interest Rate and Fee Caps: Unsupervised loans: Under Tit. 3, §201 the maximuminterest rate is: 10 percent per annum. §202 establishes additional charges allowed:official fees, reasonable closing costs, and taxes; charges for insurance allowed undersection; annual credit card charges, if applicable; charges for benefits conferred uponconsumer, if benefits of value to him and reasonable; application charges, includingcosts of credit reports, investigations and appraisals. §202.1 allows a charge fordishonored checks; §202.2 allows an “over the limit” charge; §203 allows adelinquency charge; §204 allows a deferral charge; §205 allows a loan refinancingcharge; and §206 allows a loan finance charge on consolidation.

Supervised Loans: Tit. 3, §508A allows a supervised lender to contract for up to 21percent interest. Alternatively, for loans up to $300, the lender may charge up to 30percent; for loans of $300-$1,000, the lender may charge 21 percent; and for loansover $1,000, lender may charge 15 percent. §508B contains a separate provisiongoverning charges for cash advances up to $100. Under §510, a lender may not takean interest in land as security if the loan is less than $1,000, and the interest is morethan 21 percent.

Disclosures: Tit. 3, §§301 to 312 contain extensive disclosure requirements. Thelender must disclose to the consumer the information required under Truth in LendingAct (TILA) or under this section (§301 (2)). §302 contains 3 pages discussingdisclosures. §302(2) discusses how required disclosures are to be made (that is,“clearly and conspicuously”), §302(3) requires that disclosures be made before creditis extended; §304 requires disclosure of the rate of interest. §306 requires thefollowing for loans “not pursuant to a revolving loan account: identity of the lender;amount financed; finance charge; total of payments; number, amount and due dates ofpayments; descriptive explanation of terms used; statement that security interest hasbeen taken, if applicable; late fee; statement whether debtor is entitled to rebate offinance charge; statement that debtor should refer to appropriate contract documentfor information on nonpayment and default; and whether assignee steps into the shoesof the seller. §309 contains requirements for revolving loan accounts. §309(2)contains requirements for disclosure for revolving loan accounts secured by theconsumer’s principal dwelling.

Criminal Penalties: Tit. 5, §§301 and 302 set forth the criminal penalties for anyviolation of the Oklahoma UCCC.

Civil Penalties/Enforcement: Enforcement of the act for consumer credit and sales iscovered by Article 5, Remedies and Penalties, of the Oklahoma UCCC (Tit. 5, §§101to 205). Under §108, if a clause is found unconscionable by the court, the court mayrefuse to enforce the agreement, or that portion found to be unconscionable. A debtoris entitled to a refund of any excess charges (§202 (3)). If the seller refuses to makea refund within a reasonable time, the debtor may recover a penalty in an amount notexceeding the greater of either the amount of the credit service or loan finance charge,or 10 times the amount of the excess charge (§202(4)). §203 establishes civil liabilityfor violation of the disclosure provisions: actual damages; twice the amount of thecredit service charge or 24 percent of the total amount of monthly payments, but in noevent less than $100 or more than $1,000; costs of action and reasonable attorneyfees. The act also determines damages and fees in a class action. §204 provides aseparate right to rescind certain transactions, with appropriate notice requirements.§204(4) allows a party with a right to rescind to waive that right if the “extension ofcredit is necessary in order to meet a bona fide personal emergency.” To modify orwaive the right, the person shall give the creditor a dated written statement thatdescribes the emergency, specifically modifies or waives the right to rescind, and

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bears the signature of the persons with the right to rescind.” §205 provides thatrefunds or penalties which a party may be entitled to may be set off against thedebtor’s obligation, and may be raised as a defense to any suit.

Private Right of Action: Implicit in the above language.


Special Assignee Provisions: Tit. 3, §406 requires a notice of assignment to beprovided to the borrower, and the borrower can continue to pay original lender until hereceived the notice of assignment. A creditor or assignee does not have liability underthe disclosure provisions of the title if, within 60 days of discovering the error, and priorto the institution of an action or receipt of written notice, the creditor notifies theperson in writing of the error and makes whatever adjustments necessary to assurethat the person will not be required to pay a charge in excess of that actuallydisclosed (Tit. 5 §203 (2)).

Loans of MoneyCitation: Okla. Stat. Tit.15 §§261 to 276

Applicability: “The legal rate of interest shall be 6 percent in the absence of anycontract as to the rate of interest, and, by contract, the parties may agree to any rateas may be authorized by law now in effect or hereinafter enacted.” Article 14, §2 of theConstitution sets the contract interest rate at 10 percent, and otherwise reflectsstatutory language (§266).

Interest Rate and Fee Caps: See above.

Disclosures: §272 requires banks to report interest rate: “It shall be the duty of thebanks … to make a sworn quarterly report to the Bank Commissioner, setting forth therate of interest charged upon loans made in excess of the legal or contract rate duringthe quarter. …, and any such other detailed information as the Commissioner mayrequire concerning interest rates, and all such reports as show the rates of interestexceeding 10 percent shall be published in the annual report of the BankCommissioner.

Prohibited Acts: Implicitly prohibits collection of usurious charges

Civil Penalties/Enforcement: §276 states that the prevailing party in an action tocollect upon default shall be awarded attorney fees.

Private Right of Action: Implied above.


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Consumer FinanceCmtation: Or. Rev. Stat. Chapter 725

Applicability: The act applies to anyone making a consumer loan of $50,000 or less(§725.045).

Licensing Requirements: §§725.120-320

Interest Rate and Fee Caps: Under §725.340, a licensee may charge, collect,contract for, and receive any interest or consideration for loans, secured or unsecured,as agreed upon by the licensee and borrower. A default charge of up to $5 anddeferral charge are allowed.

Loan Terms: The lender must provide or make available receipt for each payment,permit payment in advance, and a release of lien upon payment in full (§725.360).§725.340 further provides for prepayment.

Disclosures: §725.360 requires the licensee to deliver to the borrower a statementshowing: name and address of borrower and licensee; amount of the loan, maturityand terms of payment; rate of interest; nature of security for loan.

Prohibited Acts: §725.050 prohibits the lender from taking a power of attorney fromthe borrower. §725.060 prohibits false advertising.

Civil Penalties/Enforcement: Enforcement is by the Director of the Department ofConsumer and Business Services who can issue cease and desist orders (§725.400)or initiate an action (§725.410). Civil penalties may be assessed up to $2,500(§725.910).

Applicability of State UDAP: Yes. Or. Rev. Stat. §§646.605, et seq., the unfair tradepractices statute, is very broad, applying to “any trade or commerce directly orindirectly affecting the people of the state” (§646.605). It specifically applies totransactions involving real estate (§646.607). It contains a door to door/phonesolicitation provision (§646.638). While it has a private right of action (§646.638); itdoes not provide for treble damages, although it allows punitive damages. It doesallow attorney fees.

Retail Installment ContractsCitation: Or. Rev. Stat. §§83:010-990

Applicability: The act applies to every retail installment contract, which is defined asany transaction in which a retail buyer purchases goods or services from a retail sellerpursuant to a retail installment contract, and under which the buyer agrees to pay theunpaid balance in one or more installments (§83:010 (9)).

Exemptions: “The disclosure provisions of ORS 83.010-680 shall not apply to anyretail seller entering into a retail installment transaction when: the retail seller regularlyenters into retail installment transactions; and the terms of the retail installmenttransaction provide for payment of a service charge or finance charge or for paymentby written agreement in more than four installments” (§83:811). “Regularly” is definedas more than 25 times in the preceding year (§83:811(2)).

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Interest Rate and Fee Caps: None specified, but the Consumer Finance Act applies.A licensee may charge any rate (§725.340). If a lender is not licensed, then thelender would be limited (§82.010), which sets an interest ceiling of 12 percent for allloans under $50,000, which includes most retail sales transactions.

Loan Terms: The contract must include the names and addresses of the seller andbuyer, place of business of the seller, and a description of the goods sold (§83.030).The contract must also contain, in the following sequence, the following: 1) cash salesprice; 2) amount of down payment/trade in; 3) difference between 1) and 2); 4) amountincluded for insurance, if any; 5) official fees charged; 6) principal balance, sum of 3),4) and 5); 7) rate of service charge; 8) amount of time balance owed, which is sum of6) and 7); and 9) number of installments payments, amount of each payment, and thedue date. The contract may not contain blanks (§83.060). §83.020, which otherwiserequires single document agreements, states: “In a transaction involving the repair,alteration, or improvement upon or in connection with real property, the contract maybe secured by a mortgage on the real property contained in a separate document.Home improvement retail transactions which are financed or insured by FederalHousing Administration (FHA) are not subject to ORS 83.010 to 190. Voluntaryprepayment by buyer are allowed, requiring a refund (§83.130); §83.140 andconsolidation with prior contracts, incorporating those prior contracts are allowed.


Prohibited Acts: Any violation of the provisions of the act is prohibited (§83.170).

Criminal Penalties: A violation of the act is a misdemeanor (§83.990 (4)).

Civil Penalties/Enforcement: Enforcement is by the Attorney General (§83.170 to190). §83.170 bars the collection of service charge or fees where the seller is inviolation; a civil penalty of up to $1,000 is allowed (§83.190).

Private Right of Action: No. The law is unclear as to how an individual buyer obtains arefund of an overpayment or illegally collected charges and fees.

Applicability of State UDAP: Yes. §646.605, et seq., the unfair trade practicesstatute, is very broad, applying to “any trade or commerce directly or indirectlyaffecting the people of the state” (§646.605). It specifically applies to transactionsinvolving real estate (§646.607). It contains a door to door/phone solicitation provision(§646.638). While it has a private right of action (§646.638), it does not provide fortreble damages, although it allows punitive damages. It does allow attorney fees.

Other: §§83.710 to 810 contain standard home solicitation sales and 3-day rescissionprovisions, which would apply to sale of home improvement goods or services inperson or over the phone.

InterestCitation: Or. Rev. Stat. §§82-010 to 170

Applicability: The act establishes the legal rate of interest in Oregon (§82-010).

Exemptions: Exemptions include: any financial institution or trust company, consumerfinance licensee or pawnbroker; lender approved by Housing and Urban Development

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(HUD), loan secured by first lien on real property, for purchase of the real property,loans secured by real property if payments “substantially equal,” loans secured byVeteran’s Administration (VA) or Farmer’s Home Administration (FHA). It alsospecifically exempts consumer finance lender (that is, a lender of under $50,000)licensed under chapter 725 (§82.025).

Interest Rate and Fee Caps: §82.010(1) sets the interest rate at 9 percent if theparties have not otherwise agreed to a rate; §82.010(3) sets the rate for loans of lessthan $50,000 at an annual rate of interest of the greater of 12 percent or 5 percent inexcess of the discount rate on 90 day commercial paper established by the FederalReserve. The act does not specify a ceiling for loans of over $50,000 (§725.340allows a licensed lender to contract for and receive any rate of interest agreed to bythe lender and the borrower).

Prohibited Acts: Exceeding the allowed interest rate is prohibited (82-010 (4)).

Civil Penalties/Enforcement: 82-010 (4) prohibits any person in violation of the actfrom collecting interest or fees.


Applicability of State UDAP: Yes. Or. Rev. Stat. §§646.605, et seq., the unfair tradepractices statute, is very broad, applying to “any trade or commerce directly orindirectly affecting the people of the state” (§646.605). It specifically applies totransactions involving real estate (§646.607). It contains a door to door/phonesolicitation provision (§646.638). While it has a private right of action (§646.638); itdoes not provide for treble damages, although it allows punitive damages. It doesallow attorney fees.

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Home Improvement Finance ActCitation: 14 Pa Stat. Ann. §§500-101 to 602

Applicability: The act applies to every home improvement installment contract (§500-202).

Interest Rate and Fee Caps: §500-301 limits the finance charge to 8 percent.

Loan Terms: §500-203 requires a standard Retail Installment Sales Act (RISA) typedisclosure, with an additional provision that the contract may be rescinded by thebuyer not later than 5:00 pm on the business day following the date of the contract.After 5:00 pm “you are still entitled to offer defenses in mitigation of damages and topursue any rights of action or defenses that arise out of the transaction.” §500-204requires the contractor to deliver to the buyer an executed copy of the contract. §500-303 allows prepayment; §500-304 allows extensions or deferment; §500-305 to 308establish requirements for “add on sales.”

Prohibited Loan Terms: The following are prohibited: buyer agreeing not to assertagainst a contractor a claim or defense arising out of the sale or agrees not to assertagainst an assignee such a claim; provision allowing contractor to accelerate prior todefault; waiver of right of action against contractor or holder of the contract for anyillegal act committed in collection of payments; buyer relieving the contractor fromliability for any legal remedies which the buyer may have against the contractor underthe contract; the contractor being allowed to enter into the buyer’s premises; the sellerbeing entitled to liquidated damages (§500-206). §500-207 further prohibits anypromissory note which serves to cut off liability of third parties. §500-404 prohibits“buyer rewards.”


Prohibited Acts: §500-407 prohibits any charges not otherwise allowed under thissection.

Criminal Penalties: §500-501 makes a violation of the act a misdemeanor.

Civil Penalties/Enforcement: The act is enforceable by the Attorney General. There isno provision for civil suit. A violator has to forfeit and pay a civil penalty of not morethan $1,000 (§500-502).

Private Right of Action: None specified

Applicability of State UDAP: 73 PA Stat. Ann. §201-3 is very broad, and lenders arenot listed in the specific exemptions.

Special Assignee Provisions: Yes. §500-208 allows the assignee to cut off thebuyer’s defense, if the assignee gives the buyer notice, and the buyer does notrespond within 15 days. The notice requires the buyer to give the assignee noticewithin 15 days that the contractor has not “fully performed.”

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Retail Installment SalesCitation: 69 Pa. Stat. Ann. §§1101 to 2301

Applicability: The act applies to any retail installment contract, contract, retailinstallment account, installment account or revolving account made in Pennsylvania(§1103).

Interest Rate and Fee Caps: §1501 establishes the maximum interest rate at 18percent.

Loan Terms: §1302 requires a single contract document, with reference to the factthat a security interest is going to be taken, if appropriate. §1303 requires thefollowing: the name and address of the buyer and the seller, and a description ofgoods purchased; the cash sales price subject to the agreement; the down payment/trade-in; any difference between cash price and trade-in; the amount included forinsurance; the amount of official fees; the unpaid balance; the amount of servicecharge, if any; time balance; the number of installments required, amount of eachinstallment and due date; and the time sales price. Further, the statute requires anotice that the document is a consumer contract.

Prohibited Loan Terms: §1401 prohibits: waiver of rights by buyer; provision that theseller may accelerate in absence of default; waiver of rights by the buyer against theseller or holder; the seller is given the authority to enter onto buyers’ premises; powerof attorney; buyer relieves seller of liability; payment of rescission charge; venueprovisions contrary to law; assignment of wages; confession of judgment. The statutealso prohibits the “seller or anyone on his behalf being given authority to take amortgage or other security against residential real estate of the buyer.”


Prohibited Acts: Any violation of the act is prohibited (§2201).

Criminal Penalties: A violation of the act is a misdemeanor (§2201).

Civil Penalties/Enforcement: §2202 bars the recovery of any interest or charge, andthe buyer may recover from the seller any such interest or charge paid. Trebledamages are allowed where the seller has imposed illegal interest on “2 or morecontracts under the provisions of this act” (§2204).

Private Right of Action: Yes. §2205 states the venue for filing an action to enforce theact, and there are no administrative provisions.

Applicability of State UDAP: Probably. 73 PA Stat. Ann. §201-3 is very broad, andlenders are not listed in the specific exemptions.

Special Assignee Provisions: Defenses of the buyer against the seller cannot be cutoff as against the holder in due course, and requires the following disclosure: “Anyholder of this consumer credit contract is subject to all claims and defenses which thedebtor could assert against the seller of goods or services obtained with the proceedshereof. Recovery hereunder by the debtor shall not exceed amounts paid by thedebtor hereunder” (§1402).

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Consumer Discount Company Act (Small Loans)Citation: 55, Pa. Stat. Ann. §§6201 to 6219

Applicability: §§6151 to 6157 (small loans act) were repealed; and §6159 has beenreplaced by this act. §6203 applies the act to anyone making loans of $15,000 orless. §6217 exempts anyone operating under the small loans act.

Exemptions: “This act shall not apply to any person, persons, partnership,association, or corporation operating under the laws related to banking institutions,building and loan associations, credit unions, or licensed under the small loan act …and supplements or amendments, or licensed by the Secretary of Banking … underthe provisions of any other law” (§6217). It also does not apply to installmentcontracts and rent to own businesses.

Licensing Requirements: §§6203 to 6214

Interest Rate and Fee Caps: §6213 establishes interest and fee limitations: 9.5percent when the contract is payable within 48 months, and 6 percent for greater than48 months. “As an alternative …, a licensee may charge, contract for, and collectinterest at the rate and in the manner provided for in §17.1A (RISA), provided, however,that on loans secured by realty in which the amount exceeds $5,000, interest cannotexceed the interest rate allowed under the Secondary Loan Mortgage Act. §6213 alsocontains provisions for the collection of service charges, discount fees, and attorney’sfees (§6213 (f) to (p)).

Loan Terms: See above.

Prohibited Loan Terms: §6214 prohibits: combining loans by the licensee in order toobtain greater interest; charging fees or charges in excess of those allowed by theact; splitting the contract in order to obtain greater interest; and not allowing theconsumer to pay in advance.

Disclosures: See above. The licensee must also provide the consumer with astatement summarizing the contract (that is, the amount due, security, dates ofpayments) (§6215).

Prohibited Acts: Granting loans up to $15,000 without a license is prohibited (§6218).

Criminal Penalties: Any violation of the act is a misdemeanor (§6218).

Civil Penalties/Enforcement: The statute does not discuss civil penalties (licensingstatute only).

Applicability of State UDAP: 73 Pa. Stat. Ann. §201-3 is very broad, and lenders arenot listed in the specific exemptions.

UsuryCitation: 41 Pa. Stat. Ann. §§101 to 604, 7 Pa. Stat. Ann. §§309 and 318

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Exemptions: §§301 and 303 exempt residential home mortgages; §302 exemptsfederally guaranteed loans.

Interest Rate and Fee Caps: §201 establishes the maximum interest rate at 6 percent(exceptions noted above). The rate for residential mortgages is equal to the MonthlyIndex of Long Term United States Government Bond Yields for the second precedingmonth, plus 2 percent (§301). The maximum interest rate for bank installment loans,including revolving credit plans, is 6 percent (§309). However, banks are allowed tocharge a rate “not in excess of the discount rate in effect, at the time the loan ismade, at the federal reserve bank of the federal reserve district in which the institutionis located plus 5 percent” (§318).

Prohibited Loan Terms: Discount points are prohibited (§402). Prepayment penaltiesare prohibited (§405). Waivers of rights are prohibited (§408).

Prohibited Acts: Charging a rate of interest exceeding that provided by act isprohibited (§501).

Criminal Penalties: Any violation of the act a misdemeanor (§505).

Civil Penalties/Enforcement: The borrower needs not pay excessive interest (§501).A borrower may recover up to 3 times the excess interest paid, up to a period of 4years of payment (§502). §503 provides for attorney fees.

Private Right of Action: Yes, specifically provided for under §504

Applicability of State UDAP: 73 Pa. Stat. Ann. §201-3 is very broad, and lenders arenot listed in the specific exemptions.

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Interest-UsuryCitation: P.R. Laws Ann. tit. 10, §§998 to 998q, tit. 31, §§4591 to 4599, Reg. 26-A ofthe Board Regulating Rates of Interest and Financing Charges

Applicability: Interest rate and finance charge limitations apply only to transactions notcovered by Puerto Rico Retail Installment Sales Act (RISA) or the Puerto Rico SmallLoans Act (Reg. 26-A, art. 3).

Exemptions: If the lender returns any interest received in excess of the legally allowedamount prior to the commencement of any action to enjoin enforcement of theobligation or before the usury is raised as a defense in an action on the contract, thenthe lender is relieved from any further penalty or forfeiture, and the reformed contractshall be valid (tit. 31, §4596).

Interest Rate and Fee Caps: [NOTE: The interest rates and charges established byPuerto Rico’s statutes have been superseded by the regulations issued by the BoardRegulating Rates of Interest and Financing Charges, which have been adopted by thePuerto Rico legislature (see P.R. Laws Ann. tit. 10, §§998a to 998k, 1980 P.R. Laws ,Act 3, §§1 to 4). Therefore, these are the rates reported here.] The interest caps forloans are as follows: loans with fixed interest guaranteed by a first mortgage onresidential real property: the net yield obtained in the previous week’s auction by theFederal Home Loan Mortgage Corp. of 30-year fixed mortgages and to be deliveredwithin 60 days, plus .375 percent. For secondary fixed rate residential mortgages: .25percent more than allowed for first mortgages. Financing charges for both first andsecond fixed rate residential mortgages are limited to: if the amount of the loan is$59,999 or less: 6 percent; if the amount of the loan is $60,000 to 99,999: 5 percent; ifthe amount of the loan is more than $100,000: 4 percent (Reg. 26-A, art. 8). Onpayments that are more than 15 days overdue, a late charge may not exceed 5percent of the overdue payment (Reg. 26-A, art. 19). An advance payment indemnitymay not exceed 3 percent and may be charged for loans paid off within the first yearowing, 2 percent for loans paid off within the first 3 years, and 1 percent for loans paidoff within the first 5 years (Reg. 26-A, art. 20). Simple interest is required, and add-oninterest is prohibited (Reg. 26-A, art. 21).

Prohibited Loan Terms: Advance payment is prohibited (Reg. 26-A, art. 20).

Disclosures: Lenders must display the maximum permissible rates and charges forsuch loans as they offer at a visible site in their place of business, and provide detail tothe borrower (Reg. 26-A, art. 18).

Criminal Penalties: Violations are a misdemeanor punishable by a fine of at least $50but not more than $500 or by imprisonment for a term of no less than 30 days but nomore than 6 months (tit. 10, §§998j, 998q).

Civil Penalties/Enforcement: Contracts reserving, accepting, or securing greater thanlawful rate of interest shall be unenforceable, except for the amount of the principaldue. This right may not be waived (tit. 31, §4594). Administrative fines of up to $5,000for each violation may be imposed by the Commissioner of Financial Institutions (Reg.26-A, arts. 25 & 26).

Private Right of Action: Available to seek return of any interest paid in excess of thelegal rate (tit. 31, §4595)

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Retail Installment Sales and Financing Companies ActCitation: P.R. Laws Ann. tit. 10, §§731 to 793; Reg. 68-1 of the Board RegulatingRates of Interest and Financing Charges

Applicability: The act applies to the sale of goods and services for a time sale pricepayable in installments. Goods include items which at the time of sale or subsequentthereto are to be so affixed to realty as to become a part thereof, whether or notseverable therefrom. Services include the repair, alteration, or improvement of realty(tit. 10, §731).

Interest Rate and Fee Caps: [NOTE: The interest rates and charges established byPuerto Rico’s statutes have been superseded by the regulations issued by the BoardRegulating Rates of Interest and Financing Charges, which have been adopted by thelegislature (see P.R. Laws Ann. tit. 10, §750). Therefore these are the rates reportedhere.] Interest rate on all transactions: 21 percent (Reg. 68-1, Part II, §1). Onpayments more than 15 days overdue, a late charge not to exceed 5 percent of theoverdue payment, but less than $100, may be imposed (Reg. 68-1, Part II, §5).Attorney fees of $50 or 5 percent of the balance of the debt, whichever is greater, maybe charged if the contract is referred to an attorney who is not an employee of theholder in any action for repossession or collection (Reg. 68-1, Part II, §6). Add-oninterest prohibited (Reg. 68-1, Part II, §1).

Loan Terms: Retail installment contracts must be in writing, contain the entireagreement of the parties, the names and addresses of the buyer and seller, adescription of the goods and services, the amount of the cash sale price, the downpayment, the amount financed, the official fees and insurance included, the annualpercentage rate, and the charges for overdue payments, and be signed by bothparties. The contract must be provided in Spanish or English as the buyer prefers (tit.10, §§741 & 742). The words “Retail Installment Contract” must be printed in at least10-point type above buyer’s signature line (tit. 10, §742). In any home retailinstallment sale in excess of $75, the buyer shall have the right to cancel for threeworking days after delivery of the goods (tit. 10, §751). Prepayment is allowed at anytime (tit. 10, §754).

Prohibited Loan Terms: The buyer agrees not to assert any claim or defense arisingout of the sale against the assignee; an acceleration clause in the absence of buyer’sdefault in performance; the buyer waives any right of action against the contractor or aholder or other persons acting on their behalf for any illegal act committed in thecollection of payments or repossession of the goods; the title to any goods, or anylien thereon is to be submitted posteriorly, besides the goods which are the subject ofthe contract; the buyer appoints the seller or holder his agent; the buyer agrees topayments or attorneys’ fees arising from extrajudicial actions connected to thecontract; the holder may institute proceedings for repossession before the buyer hasfailed to pay two consecutive installments. Inclusion of any of these provisions shallbe void but not otherwise affect the contract’s validity (tit. 10, §749).

Disclosures: A notice, in at least 10-point type, not to sign the contract if it containsblank spaces, that the buyer is entitled to a copy of the contract, and that the buyermay prepay at any time and perhaps receive a partial finance charge refund (tit. 10,§742).

Prohibited Acts: Prohibited acts include: 1) leaving blank spaces to be later filled inby the buyer (tit. 10, 743); and 2) Conversion of the balance of a retail installmentcontract into a personal loan in order to receive a greater rate of interest (tit. 10,§757).

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Criminal Penalties: Violations are a misdemeanor punishable by a fine of up to $500 orby imprisonment for a term of no more than six months (tit. 10, §792).

Civil Penalties/Enforcement: Until the seller delivers or mails an executed copy of thecontract to the buyer, the buyer has an unconditional right to cancel and receive animmediate refund of any down payment and return of any trade-ins (tit. 10, §751).Administration and enforcement, including the right to seek injunctive relief and fines ofbetween $100 and $5,000, is by the Commissioner of Financial Institutions. Rulesand regulations are established by the Board of Finance (tit. 10, §§773 to 779, 785 &792).

Private Right of Action: If the creditor converts balance of retail installment contractinto a personal loan in order to receive a greater rate of interest, the debtor has actionfor $1,000 damages (tit. 10, §757).

Special Assignee Provisions: The contract must include a notice to the assignee,stating that assignees shall be subject to all claim and defenses the buyer may haveagainst the seller (tit.10, §742). No retail installment contract shall require theexecution of any note or series of notes unless each one clearly states it is subject tothe conditions of the retail installment contract (tit. 10, §748). Within 30 days aftertaking assignment of the contract or a related note, an assignee must mail a notice tothe buyer summarizing the transaction and informing the buyer that if this descriptionis wrong, or the goods have not been delivered, or the seller has not fully performed hisagreements, then the buyer must notify assignee of his claims by certified mail within20 days (tit. 10, §749). Unless a notice of assignment has been given, payment bythe owner to the last known holder shall be binding upon any subsequent holder orassignee (tit. 10, §752).

Other: The seller or holder must notify the buyer in the shortest possible time of afailure to pay and late charge, and, in any case, before the next installment comesdue (tit. 10, §760).

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Home Solicitation Sales; Unfair Home Improvement Loans toSenior CitizensCitation: R.I. Gen. Laws §§6-28-1 and 6-28-1-1.

Applicability: Home improvement sales are the sales of goods or services by a sellerengaged in business of making such sales in which the seller solicits the sale at ahome other than that of the person soliciting the same, and any or all of the purchaseis paid in cash or installments (§6-28-2). §6-28-1.1 applies to unfair homeimprovement loans to senior citizens.

Exemptions: Under the home solicitation sales act, a seller is not exempt unless notwithin the definition of home improvement sales. There are no exemptions under theact.

Loan Terms: Under §6-28-3, a home solicitation sales contract must contain aprovision allowing a 3 day cancellation right following the date the buyer signs theagreement. Under §6-28-4, the following notice must be included: “Notice to Buyer:do not sign agreement if any spaces are blank; you are entitled to a copy of thisagreement; you may at any time pay off the full amount owed, and in so doing may beentitled to a partial rebate; seller has no right to unlawfully enter your premises orcommit any breach of peace; “you may cancel this agreement if it has not beensigned at the main office or a branch office of the seller, provided you notify the sellerat his main office or branch office shown in the agreement by registered mail, whichshall be posted not later than midnight of the third calendar day after the day on whichthe buyer signs the agreement.” Under §6-28-6, any note evidencing an indebtednessgiven by a buyer in connection with a home solicitation sale shall be dated not earlierthan the date of the agreement or offer to purchase, and must contain the words“Nonnegotiable consumer note” upon it. This means that any assignee or holder ofthe note takes it subject to the claims and defenses allowed under §6A-3-306 (UCC)irrespective of the “holder in due course” rules of §6A-3-306.

Disclosures: See above

Prohibited Acts: Under Home Solicitation Sales Act, agreement must conform withstatute (§6-28-4. Under the Unfair Home Improvement Loans to Senior Citizens Act,§6-28.1-3, the following unfair methods of competition and unfair or deceptivepractices are unlawful. The home solicitation of a senior citizen where the loan ismade encumbering the primary residence of that consumer for the purpose of payingfor home improvements, and the transaction is part of a pattern or practice in violationof 15 U.S.C. 1639 or 12 CFR 226.32. (Included in file.)

Criminal Penalties: Under the Home Solicitation Sales act (§6-28-8), any violation is amisdemeanor. Under the Unfair Loans to Senior Citizens Act (§6-28.1-4), anyviolation is a misdemeanor.

Civil Penalties/Enforcement: No penalties under the Home Solicitation Sales Act(cancellation is the remedy). Under §6-28.1-4 of the Unfair Loans to Senior CitizensAct, a party in violation is prohibited from maintaining any civil action for the recoveryof any debt created as a result of such violation and shall issue a discharge of anyencumbrance.

Private Right of Action: Implicit in §6-28.1-3

Applicability of State UDAP: §§6-13.1-2 and 6-13.1-5.2 are very broad; an individual

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may recover actuals, punitives, and attorney fees under the latter act. §6-28.1-3reflects UDAP.

Special Assignee Provisions: The Unfair Loans to Senior Citizens Act (§6-28.1-3)contains a provision relieving a third party who is a holder in due course unless therewas an agency relationship or the third party had actual knowledge or participated inthe unfair or deceptive act or practice.

Truth in Lending and Retail SellingCitation: R.I. Gen. Laws §§6-27-1 to 11

Applicability: §6-27-2 ensures the meaningful disclosure of credit.

Interest Rate and Fee Caps: §6-27-4 sets the maximum interest rate at 18 percent.

Loan Terms: See disclosures below.

Disclosures: §6-27-10 requires disclosure sufficient to satisfy “Regulation Z” of TILA.Interestingly, the law does not contain the standard RISA type disclosure and contractrequirements.

Prohibited Acts: §6-27-7 prohibits a creditor from willfully imposing a finance charge inviolation of the act.

Criminal Penalties: §6-27-7 (b) makes it a misdemeanor punishable by up to 1 year inprison with a fine up to $500.

Civil Penalties/Enforcement: Under §6-27-7, any creditor in violation is liable for twicethe interest charged, up to $2,000.

Private Right of Action: Yes. §6-27-7 allows a party to file action within 1 year of thedate of “the occurrence of the violation,” and allows an award of attorney fees.

Applicability of State UDAP: §§6-13.1-2 and 6-13.1-5.2 are very broad, and anindividual may recover actuals, punitives, and attorney fees under the latter act. But,§6-13.1-4 exempts “actions or transactions permitted under laws administered by thedepartment of business regulation or other regulatory body acting under statutoryauthority of this state or the United States.” This implies that banks are exemptbecause of their federal oversight.

Special Assignee Provisions: §6-27-5 requires an assignee, if one who the sellerregularly refers business, to take a note subject to the “claims and defenses permittedunder §6A-3-306.”

Licensed Activities; Lenders and Brokers; and Small Loan LendersCitation: §§19-14-1 to 32 “Licensed Activities”; 19-14.1-1 to 12, “Lenders and LoanBrokers”; 19-14.2-1, “Small Loan Lenders.”

Applicability: These provisions deal with licensing of lender and loan brokers and smalllenders in one chapter (14), and in regulating lenders and loan brokers and small

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lenders in two other chapters, (14.1 and 14.2)

Exemptions: Under §19-14-2, regulated institutions and other insured deposit takinginstitutions duly organized under the law of the United States are not subject to thelicensing requirements. §19-14.1-10 also contains special exemptions for nonprofit,any person making less than 6 loans/year. It also exempts lenders from bothchapters if the loans are to corporations, or other business entities, loans over$25,000 for business or commercial reasons, loans secured by accounts receivable,loans made by life insurance companies secured by life insurance; education loans,acquisition of retail installment contracts, notes evidencing indebtedness of retailbuyer to retail seller of goods, and any federal or state agency loans.

Licensing Requirements (cite only): §§19-14-1 to 32

Interest Rate and Fee Caps: For lenders and loan brokers, interest is limited to theinterest allowed under §6-26-2 (21 percent) (§19-14.1-2). For small loans, §19-14.2-8sets the following limits: for loans up to $300, 36 percent; for loans between $300 and$800, 30 percent; for loans over $800 but not exceeding $5,000, 24 percent.

Loan Terms: Under the small loan act, no loan of under $1,000 may be for more than25 months, and no loan for over $1,000 but under $5,000 may be for more than 60months.

Prohibited Loan Terms: Both §§19-14.1-5 and 19-14.2-5 contain the followingprohibitions: acceleration clause because lender deems himself insecure; power ofattorney to confess judgment; any provision whereby debtor waives rights accruing tohim or her under provisions of this title; any requirement that more than oneinstallment be paid in any one installment period (except, under §19-14.1-5, a changein payment schedule as a result of the borrower’s default or delinquency) anyassignment of or order for payment of salary.

Disclosures: The small loan act requires lender to deliver to borrower a “statement oflaw regarding interest rate and term limitations, showing amount and date of loan,maturity, nature of security name and address of the borrower and licensee, and theinterest rate.

Prohibited Acts: The violation of any provisions of the act is prohibited.

Criminal Penalties: Under both §§19-14.1-9 and 19-14.2-14, a violation of the act is amisdemeanor.

Civil Penalties/Enforcement: Under §19-14.1-9, for an “unintentional violation,” anaward can include actual damages plus a penalty no greater than $100 per violation.For intentional violations, actual damages and $500 per violation. Under §19-14.2-14a violation and finding of a misdemeanor voids the contract, “and the small loan lendershall have no right to collect or receive any principal, interest, fees, or charge.”

Private Right of Action: Implicit in the above.

Applicability of State UDAP: §§6-13.1-2 and 6-13.1-5.2 are very broad, and anindividual may recover actuals, punitives, and attorney fees under the latter act. But,§6-13.1-4 exempts “Actions or transactions permitted under laws administered by thedepartment of business regulation or other regulatory body acting under statutoryauthority of this state or the United States.” This implies that banks are exempt

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because of their federal oversight.

UsuryCitation: R.I. Gen. Laws §6-26-1

Applicability: The act sets the maximum rate of interest.

Exemptions: Pawnbrokers and “persons licensed under the provisions of ch. 25, title19,” now amended to §19-4.2, the Small Loan Lender’s Act are exempt.

Interest Rate and Fee Caps: §6-26-2 sets the rate at 21 percent or 9 percent plus the“domestic prime rate.

Prohibited Acts: §6-26-4 prohibits contracts in violation of the usury statutes.

Civil Penalties/Enforcement: Under §6-26-4, forfeiture of entire interest on debt mayoccur when done knowingly by a regulated financial institution. “In a case in which theusurious rate of interest has been paid, the person by whom it has been paid, or hislegal representatives, may recover from the regulated financial institution twice theamount of interest.” The section does not describe a penalty for a violation by a non-regulated lender.

Applicability of State UDAP: §§6-13.1-2 and 6-13.1-5.2 are very broad, and anindividual may recover actuals, punitives, and attorney fees under the latter act. But,§6-13.1-4 exempts “actions or transactions permitted under laws administered by thedepartment of business regulation or other regulatory body acting under statutoryauthority of this state or the United States.” This implies that banks are exemptbecause of their federal oversight.

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South Carolina Consumer Protection CodeCitation: S.C. Code Ann. §§37-1-101 to 37-5-303

Applicability: The act applies to consumer credit transactions made within the state.Chapter 2 applies to consumer credit sales (small loans under $25,000). Chapter 3applies to consumer loans (small loans and loans secured by realty), except loanssecured by first liens on property. Chapter 4 applies to insurance-related consumercredit transactions. Chapter 5 addresses remedies for the above (§37-1-201).

Exemptions: §37-1-202 exempts: extensions of credit to government agencies orinstrumentality; sale of insurance; transactions related to public utility tariffs;transactions made in compliance with chapter 39, Title 30; licensing or examiningrestricted lenders; rates and charges for insurance premiums governed by theinsurance code; rates and charges on restricted loans (§37-3-501); loans foragriculture; student loans; federally charted credit unions; transactions in securities.Loans secured by a first lien on realty are not covered (§37-3-105).

Licensing Requirements: §37-3-503

Interest Rate and Fee Caps: §37-2-201 establishes the interest rate at 18 percent or“any rate posted pursuant to §37-2-305.” Creditors are allowed to set any interest rateso long as they post it pursuant to the provisions of the act (§37-2-305). Creditors areallowed to set additional charges for fees and taxes, insurance, and closing costs(§37-2-202). Creditors are allowed to set delinquency charges; §37-2-204 allowscreditors to set deferral charges (§37-2-203); §37-2-205 allows creditor to set creditservice charge upon refinancing not exceeding rate allowed at §201; §37-2-206 allowscreditor to set service charge on consolidation. §37-2-207 allows creditor to setservice charge for revolving charge accounts. As to loans, §37-3-201 allows creditorto set rate up to 18 percent, except that supervised lenders can charge any rate filedand posted pursuant to §37-3-305, which is essentially the same notice requirementas §37-2-305. §37-2-202 allows creditor to change additional charges, including feesand taxes, insurance if allowed, closing costs, etc. §37-3-203 allows creditors tocharge delinquency charges; §37-3-204 allows creditors to charge deferral charges;§37-3-205 allows creditor to charge loan finance charge on consolidation; §37-3-206allows creditors to charge loan finance charge on consolidation.

Disclosures: Specified disclosures must be made to borrowers (§§37-2-301 et seq.and 37-3-301 et seq.). §37-2-501 provides for home solicitation disclosure and a 3-day notice. The creditor is required to provide the consumer with a notice of right tocure if the consumer is in default for 10 or more days; the creditor may not takepossession until 20 days after the notice is given (§37-5-110).

Criminal Penalties: A willful violation of the act in lending or licensing is amisdemeanor (§37-5-301). It is a misdemeanor to willfully violate the disclosureprovisions of the act (§37-5-302).

Civil Penalties/Enforcement: A consumer has a cause of action to recover actualdamages as well as a right to recover a penalty of no less than $100 and no morethan $1,000 (§37-5-202). A consumer has a right of a refund of any excess chargepaid. The civil penalty for violation of the disclosure provisions is twice the amount ofthe finance charge (no less than $100 and no more than $1,000) (§37-5-203). Thecreditor can avoid liability if the creditor cures error within 60 days of discovery. Thecourt is allowed to throw out all or part of an agreement as unconscionable (§37-5-108).

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Private Right of Action: Yes. §37-2-404

Applicability of State UDAP: §39-5-10 (b) defines trade or commerce broadly enoughto include lenders. §39-5-140 provides for a private right of action for damages, up to 3times actual damages and attorney fees.

Special Assignee Provisions: “With respect to a consumer credit sale or consumerlease, an assignee with rights of the seller or lessor is subject to all claims anddefenses of the consumer against the seller or lessor arising from the sale or lease ofproperty or services, notwithstanding that the assignee is a holder in due course of anegotiable instrument issued in violation of the provisions prohibiting certain negotiableinstruments" (§37-2-403).

Other: For consumer credit sales, a lender cannot take a security interest in personalproperty if debt is under $300, and cannot take a security interest in land if the debt isunder $1,000 (§37-2-407).

Consumer Finance Law (Small Loans)Citation: S.C. Code Ann. §§34-29-10, et seq.

Applicability: The act applies to persons engaged in the business of lending $7,500 orless (§34-29-20).

Exemptions: §34-29-20 (b) exempts regulated banks, savings and loans, trustcompanies, credit unions.

Licensing Requirements: §§34-29-20 to 130

Interest Rate and Fee Caps: The interest rate caps are: for loans up to $150 2.50 permonth (§34-29-140); and for loans of $150-$1,000, 20 percent up to $100; 18 percenton $100-$300, 11 percent on $300-$500, and 9 percent on $500-$1,000. For loans$1,000 to $7,500, the interest rate is 7 percent, with the finance charges above notallowed on any part of the loan. Provisions also allow for an initial charge, delinquentcharges, and deferment charge.

Loan Terms: See disclosures below.

Disclosures: the licensee is required to disclose in a written statement to theborrower: amount and date of loan; original principal; original dollar charge for loan;description of the payment schedule; right to prepay; nature of security; any deductionfor insurance, if any; name and address of obligor and the licensee; and signature ofprincipal borrower (§34-29-150).

Prohibited Acts: lender may not take charges for a loan “for the purchase price of realestate or an interest therein and which is secured by a purchase money lien orinterest therein; provided a licensee is not prohibited from taking nonpurchase moneylien, whether primary or secondary, on real estate as security for a loan made incompliance with this chapter (§34-29-140).

Criminal Penalties: Aviolation of the act is a misdemeanor (§34-29-250).

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Civil Penalties/Enforcement: Enforcement of licensing provisions is by the stateBanking Board.

Applicability of State UDAP: §39-5-10 (b) defines trade or commerce broadly enoughto include lenders. §39-5-140 provides for a private right of action for damages, up to3 times actual damages and attorney fees.

Usury and Miscellaneous Loan ProvisionsCitation: S.C. Code Ann. §§34-31-10 to 12, and 37-10-101 to 106

Applicability: “In all cases of accounts stated and in all cases wherein any sum orsums of money shall be ascertained and, being due, shall draw interest according tolaw, the legal interest rate shall be at the rate of 8 percent.”

Exemptions: The finance and other charges allowed under the Consumer Finance Lawat §34-29-140 supplement this act.

Interest Rate and Fee Caps: The “legal interest rate” is 8¾ percent (§34-31-20).However, “no greater rate of interest than 6 percent shall be charged upon anycontract arising in this state … except upon written contracts wherein, by expressagreement, any rate of interest may be charged except as otherwise provided in thistitle or by law” (§37-10-106). The section then refers back to §34-31-20 for referenceto “legal rate of interest.”

Applicability of State UDAP: §39-5-10 (b) defines trade or commerce broadly enoughto include lenders. §39-50140 provides for a private right of action for damages, up to3 times actual damages and attorney fees.

Other: The borrower, in a transaction for personal, family, or household purposessecured in whole or in part by a lien on real estate, is allowed to choose an attorneyfor the closing (§37-10-102). The section also provides additional costs that a creditormay charge in such transactions. The borrower, on a mortgage loan of $100,000 orless, has the right to prepay the loan in full without a penalty, and the right to insist ona fixed, nonvariable interest rate (§37-10-103).

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Consumer Installment Sales ContractsCitation: S.D. Codified Laws §§54-3a-1 to 25

Applicability: The act applies to transactions in which a consumer purchases goods orservices from a creditor, under which arrangement a finance charge may be imposed,and the consumer agrees to pay for the goods or services in 1 or more installments(§54-3A-1). The act allows a finance charge “at a rate agreed upon by the creditor andconsumer in a written agreement. The finance charge is expressed and compoundedin the same manner as an interest rate” (§54-3A-3).

Interest Rate and Fee Caps: (See §54-3A-3). Additional charges are allowed, such asofficial fees and taxes, and charges for insurance (if agreed to) (§54-3A-5). A creditoris allowed to assess a delinquency charge (§54-3A-11 and 12).

Loan Terms: Unlike Retail Installment Sales Acts (RISAs), this act does not spell outthe language required to be in a loan agreement. §54-3A-18 establishes requirementsfor refinancing agreements.

Prohibited Acts: Charging in excess of amount agreed upon is prohibited.

Civil Penalties/Enforcement: If an excessive amount is charged, the consumer shallnot be liable for any part of the principal, interest, or any other charge whatsoever, andshall be allowed to recover costs and reasonable attorney fees (§54-3A-20).

Applicability of State UDAP: South Dakota’s UDAP definition of deceptive acts orpractices does not specifically apply to services (§37-24-6). It contains a series ofprovisions for door to door sales (§§37-24-5.1 to 5.7), which applies to door to doorsales of goods or services.

Small Installment Loans and Consumer FinanceCitation: S.D. Codified Laws §§54-6-1 to 62

Applicability: This statute applies to loans under $5,000 (§54-6-20). A license isrequired to make such loans (§54-4-2).


Interest Rate and Fee Caps: The provision governing interest and service charges(§54-6-2) was repealed, presumably at the same time as the Legislature eliminatedany interest caps under the usury statutes (§54-3-1.1). §54-6-2.1 allows a licensedlender to make loans with interest as specified in the loan contract, and calculated asprovided (§54-6-3 to 5). Small lenders are allowed to charge lawful fees paid to apublic official for filing, and fees incurred with a loan secured by real estate (that is,title insurance, appraisals) (§54-6-5).

Loan Terms: Loans secured by wage assignments, “limited to not exceeding 10percent of such salary, wages, and commissions” are allowed (§54-6-23 to 26). Loanswith spaces left blank are prohibited (§54-6-33).

Disclosures: §54-6-34 requires that the licensee disclose: amount and date of loan;description of payments required; specific item of security, if any; name and addressof licensee; and agreed upon charge.

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Prohibited Acts: Loans under $1,000 may not exceed 24 months; loans under $2,500may not exceed 36 months; and loans up to $5,000 may not exceed 60 months (§54-6-20). Misleading or deceptive advertising is prohibited (§54-6-38).

Criminal Penalties: Under §54-6-19, a violation of the act is a class 2 misdemeanor.§54-6-38 specifically states that a violation of the provision prohibiting misleadingadvertising is a misdemeanor.

Civil Penalties/Enforcement: A violation of the act leads to forfeiture of any principal,interest, or charges (§54-6-22).


Applicability of State UDAP: South Dakota’s UDAP definition of deceptive acts orpractices does not specifically apply to services (§37-24-6). It contains a series ofprovisions for door to door sales (§§37-24-5.1 to 5.7) which does applies to door todoor sales of goods or services.

Other: Under §54-6-28, while a licensee may engage in the general insurancebusiness, “no licensee shall directly or indirectly compel a borrower to buy insurancefrom him or direct or ‘steer’ the borrower to any other seller of insurance.”

Interest and UsuryCitation: S.D. Codified Laws §§54-3-1 to 17

Applicability: “Unless a maximum interest rate or charge is specifically establishedelsewhere in the code, there is no maximum interest rate or charge, or usuryrestrictions between or among persons, corporations, limited liability companies,estates, fiduciaries, associations or any other entities if they establish the interestrate or charge by written agreement” (§54-3-1.1).

Exemptions: Regulated lenders are exempt “from all limitations on the rate of interestwhich they may charge and are further exempt from the operation and effect of theusury statutes” (§54-3-13).

Interest Rate and Fee Caps: There are no caps in §54-3-1.1. However, §54-3-16 sets“official state interest rates, as referenced throughout South Dakota Codified Laws,as: Category A =4½ percent; Category B = 10 percent; Category C = 12 percent;Category D = 1 percent per month; Category E = 4 percent; Category F = 15 percent.

Criminal Penalties: Criminal penalties were eliminated when §54-3-9 was repealed.

Applicability of State UDAP: South Dakota’s UDAP definition of deceptive acts orpractices does not specifically apply to services (§37-24-6). It contains a series ofprovisions for door to door sales (§§37-24-5.1 to 5.7), which applies to door to doorsales of goods or services.

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Tennessee Industrial Loan ActCitation: Tenn. Code Ann. §§45-5-101 to 612

Applicability: An industrial loan and thrift company is a person engaged in thebusiness of making loans and imposing interest and loan charges (§45-5-102). Anyregistered lender may lend money, with or without security, and take as security realor personal property (§45-5-301).


Interest Rate and Fee Caps: Loans under $100, then no more than 18 percent; onloans greater than $100, up to 24 percent (§45-5-301); limits exist on loan servicecharges by lenders (§45-5-403).

Loan Terms: Rules for prepayments or deferrals (§45-5-402)

Prohibited Loan Terms: General limitations on loans, including a restriction on the useof the word bank; limitations on terms of loans; making loans to one person for morethan 10 percent of the registrant’s stated capital; taking blank instruments; acceptingor procuring false financial statements; using unreasonable collection tactics; or usingmultiple agreements to enable the lender to charge greater interest (§45-5-302)

Prohibited Acts: Lending without a license is prohibited (§45-5-202).

Criminal Penalties: Yes. A violation of the act is a misdemeanor (§45-5-106).

Civil Penalties/Enforcement: The Commissioner of Financial Institutions has the powerto enforce the act and supervise registrants (§§45-5-501 to 504).

Private Right of Action: The usury and interest remedy provisions are the remedies(i.e., §§47-14-111 and 115) (§45-5-404).

Applicability of State UDAP: Tennessee’s UDAP contains a broad list of prohibitedacts which cover usurious loans. §47-18-109 provides for a private right of action, withthe court having discretion to award up to treble damages and attorney fees. Unlikemost UDAPs, it contains a list of factors the court is to look at in determining whethertreble damages should be awarded: competence of the consumer; nature of thedeception practiced upon the consumer; damage to the consumer; and good faith ofthe violator. The act also gives the court jurisdiction to review settlements, and setthem aside if unreasonable. Finally, while the provision allows an award of attorneyfees to plaintiff, it also specifically allows an award to the defendant if the plaintiff’s suitis “frivolous, without legal or factual merit, or brought for the purpose of harassment.”

Retail Installment Sales ActCitation: Tenn. Code Ann. §§47-11-101 to 110

Applicability: The act applies to retail installment sales contracts (§47-11-102 (6)).

Interest Rate and Fee Caps: The interest rate cap is 11.75 percent (§47-11-103 (1)(d)).

Loan Terms: §47-11-103 controls the loan form and content: cash price; downpayment/trade-in; difference between cash price and trade-in; amount of fees and

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costs; principal balance owed and time price differential; time balance owed. It alsorequires: the agreement be in one document; a copy of the insurance is given to thebuyer; a receipt is given for payment; an acknowledgment of payment in full isprovided; and prepayment credit.

Prohibited Acts: A waiver of provisions of the Chapters is prohibited (§47-11-108).

Criminal Penalties: Class C misdemeanor (§47-11-107)

Civil Penalties/Enforcement: For an intentional violation, the buyer may receive anamount equal to the whole time balance of the contract, with attorney fees (§47-11-107). For a non-intentional violation, the buyer shall have the right to recover 2 timesthe time price differential, together with attorney fees. The buyer must give the seller30-day notice of a violation.


Applicability of State UDAP: Tennessee’s UDAP contains a broad list of prohibitedacts which cover usurious loans. §47-18-109 provides for a private right of action, withthe court having discretion to award up to treble damages and attorney fees. Unlikemost UDAPs, it contains a list of factors the court is to look at in determining whethertreble damages should be awarded: competence of the consumer; nature of thedeception practiced upon the consumer; damage to the consumer; and good faith ofthe violator. The act also gives the court jurisdiction to review settlements, and setthem aside if unreasonable. Finally, while the provision allows an award of attorneyfees to plaintiff, it also specifically allows an award to the defendant if the plaintiff’ssuit is “frivolous, without legal or factual merit, or brought for the purpose ofharassment.”

Special Assignee Provisions: Transfer or assignment of any contract is allowed (§4-11-106).

Interest RatesCitation: Tenn. Code Ann. §§47-14-101 to 125

Applicability: The act establishes various interest rates for certain obligations.

Exemptions: Written contracts or obligations governed by specific statutory interestrates are exempt (§47-14-103).

Interest Rate and Fee Caps: The rate, unless otherwise agreed to by the contract orallowed by statute, is 10 percent (§47-14-103). Chapter 15, §§47-15-101 to 105address interest on home loans secured by real estate owned and occupied by theborrower for family residential purposes; §102 sets a maximum rate of interest onsuch loans at 2 percent above the most recently weighted average yield of theaccepted offers of the FNMA, to be determined by the Commissioner of FinancialInstitutions (§47-15-103). §45-2-1105 establishes interest rates and fees that banksmay charge on installment loans (either secured or unsecured). Under the statute,the “nominal” rate cannot exceed 6 percent; an “effective” rate of between 10.5 percentand 18 percent, depending on the duration of the loan, with the higher rate is allowedfor the longest term loans (loans exceeding 84 months).

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Prohibited Acts: Violating usury laws is prohibited.

Criminal Penalties: Any willful collection of usury is a misdemeanor (§47-14-112).

Civil Penalties/Enforcement: (See below). Any contract which, on its face, requiresthe payment of usury shall not be enforceable; the original lender may sue for theprincipal and lawful interest and charges, unless the lender is guilty of“unconscionable conduct” (§47-14-117).

Private Right of Action: Usury can be pled as a defense (§47-14-110). A party maybring an action (§47-14-111). The chancery court has jurisdiction, concurrent with thecourt of laws for the abatement and recovery of usury (§47-14-115). “No person shallbe entitled to an equitable remedy with respect to usury, unless the person seekingsuch a remedy does equity by paying, or tendering into court, the principal plus lawfulinterest then due.”

Applicability of State UDAP: Tennessee’s UDAP contains a broad list of prohibitedacts which cover usurious loans. §47-18-109 provides for a private right of action, withthe court having discretion to award up to treble damages and attorney fees. Unlikemost UDAPs, it contains a list of factors the court is to look at in determining whethertreble damages should be awarded: competence of the consumer; nature of thedeception practiced upon the consumer; damage to the consumer; and good faith ofthe violator. The act also gives the court jurisdiction to review settlements, and setthem aside if unreasonable. Finally, while the provision allows an award of attorneyfees to plaintiff, it also specifically allows an award to the defendant if the plaintiff’s suitis “frivolous, without legal or factual merit, or brought for the purpose of harassment.”

Real Estate LoansCitation: Tenn. Code Ann. §§45-3-701, et seq.

Applicability: The act applies to real estate loans by savings and loan associations.

Licensing Requirements: The act applies only to licensed savings and loans.

Interest Rate and Fee Caps: There is no interest rate or fee caps. §45-3-701 restrictsthe value of real estate loans for some purposes and allows loans: 1) of up to 100percent value for “real estate loans on real estate which constitutes home property orother primary residential property and on which is constructed, or to be constructed ahome for residential use; 2) of up to 80 percent of value for loans to finance acquisitionand development of real property; and 3) of up to 80 percent of value to finance theconstruction of a home.

Civil Penalties/Enforcement: §45-3-704 limits savings and loan liability for loss ordamage occasioned by any defect in the real estate so designed, manufactured, orconstructed, or damage resulting from the failure of the borrower to use due care in thedesign, manufacture, construction, or modification “unless such damage is a result ofan act of the association outside the scope of the activities of a lender of money whichis tantamount to assuming direct and active responsibility for, or assuring structuralintegrity of, design, manufacture, construction repair, or improvement to the realproperty.”

Applicability of State UDAP: Tennessee’s UDAP contains a broad list of prohibited

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acts which cover usurious loans. §47-18-109 provides for a private right of action, withthe court having discretion to award up to treble damages and attorney fees. Unlikemost UDAPs, it contains a list of factors the court is to look at in determining whethertreble damages should be awarded: competence of the consumer; nature of thedeception practiced upon the consumer; damage to the consumer; and good faith ofthe violator. The act also gives the court jurisdiction to review settlements, and setthem aside if unreasonable. Finally, while the provision allows an award of attorneyfees to plaintiff, it also specifically allows an award to the defendant if the plaintiff’ssuit is “frivolous, without legal or factual merit ,or brought for the purpose ofharassment.”

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Secondary Mortgage LoansCitation: Tex. Fin. Code Ann. §§344.001 to 344

Applicability: A secondary mortgage loan is any loan secured in whole or in part by aninterest in real property improved by a dwelling unit designed for 4 or fewer familiesand subject to one or more security interests (§344.001).

Exemptions: Secondary mortgages made by a seller of property to secure an unpaidpurchase price are exempt (§344.004).

Licensing Requirements: “Authorized lenders” (Chapter 342)

Interest Rate and Fee Caps: Only an authorized lender may make loans bearinginterest of greater than 10 percent (§344.002). §344.101 sets the interest at 8percent, “or, as an alternative, provides for a rate or amount authorized by chapter 303.(§303.101 (2), however, says that the ceilings provided by the chapter do not apply toa loan secured by a lien on the obligor’s homestead.) Additional fees are allowed tobe in the contract include fees: related to a deed of trust, reasonable attorney fees foran attorney who is not an employee of the creditor; court costs, and fees incurred inthe collection of the debt; and bad check charges (§344.106). Additional fees allowedto be collected on or before closing include: reasonable title fees; reasonable attorneyfees; official fees; appraisal fees; credit report fees; survey fees; credit life insurancefees; and fees related to real property incurred to comply with federally mandatedprograms (§344.107).

Loan Terms: Subchapter C addresses refunds of pre-computed interest; Subchapter Daddresses insurance which may be required of a borrower; §344.401 requires thelender to provide the borrower with a statement containing the names and addressesof the borrower and lender, and a description of any type of insurance required;§344.402 requires the lender to provide a receipt for cash payments. §344.403requires that a lender accept pre-payments; §344.404 requires that a lender return anyinstrument or security agreement at the time the loan is paid off. §344.405 allows alender and a borrower to enter into an agreement for more than one loan or advance, ifthe loan charge does not exceed the rate allowed for an equivalent loan.

Prohibited Acts: Under §344.501, a lender to directly or indirectly charge an amountthat is not authorized by this chapter, including fee, compensation, bonus,commission, brokerage discount, etc. that is received: in connection with theinvestigating, arranging, negotiating, procuring, guaranteeing, making, servicing,collecting or enforcing a loan; for the forbearance of money, credit, goods or things inaction; or for any other service performed or offered. §344.502 prohibits a lender fromtaking an assignment of wages as security or confession of judgment.

Criminal Penalties: It is a misdemeanor to charge more than twice the amount of theallowed time price differential (§345.501).

Civil Penalties/Enforcement: A person who charges more than allowed is liable fortwice the excess charged and default or deferral charges contracted for, andreasonable attorney fees (§349.001). A person who fails to perform as required by thissubtitle, or performs in violation of the act, is liable for an amount that does not exceedan amount computed under 1, but not both, of the following: 1) 3 times the actualeconomic loss of the obligor; or 2) twice the interest contracted for, not to exceed$2,000 in a transaction in which the amount financed does not exceed $5,000, or 3)$4,000 in a transaction in which the amount financed exceeds $5,000(§349.003).

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There are limitations on liability for unintentional or bona fide errors if the lender is inconformity with other laws (§349.101 et seq.); and correcting violations (§349.201 etseq.). A lender’s liability for not being licensed or registered is limited by subsequentlicensing or registration (§349.301).

Private Right of Action: Yes. Procedures for civil actions, including class actions(§349.401)

Applicability of State UDAP: Yes. Texas’ UDAP is broadly defined (§§17.45 and 46).It allows the consumer to collect economic damages from the use or employment ofany practice which is specifically enumerated (§17.46), a breach of an express orimplied warranty, an unconscionable act, or insurance bad faith. A prevailingconsumer may be awarded actual economic damages and up to 3 times actualeconomic damages. The act requires, as a prerequisite to filing a lawsuit, a 60-daynotice to the defendant, during which time the defendant may inspect the goodscausing the damage. Further, §17.5052 allows a defendant to make an offer ofsettlement, giving the plaintiff a certain amount of time to accept or reject the offer.The offer must include an amount for actual damages and an amount for attorney fees.If the consumer rejects the offer, then the court can limit the consumer’s eventualrecovery if the amount awarded is the same as, substantially the same as, or lessthan that offered.

Retail Installment SalesCitation: Tex. Fin. Code, Chapter 345, 345.001 to 501

Applicability: §345.007 applies to retail installment transactions, defined at §345.001(7) as a transaction in which a retail buyer purchases goods or services from a retailseller under a retail installment contract or retail charge agreement that provides for atime price differential and under which the buyer agrees to pay the unpaid balance andthe time price differential in one or more installments. “Goods” are specifically definedunder the law to include “personal property furnished or used in the modernization,rehabilitation, repair, alteration, improvement, or construction of real property that is tobecome or becomes a part of the real property regardless of whether the personalproperty is severable from the real property,” and “a structure other than a mobilehome.”

Exemptions: The sale of money and certain vehicles (§345.002), and certain services,including legal services, services of a professional, services for which the cost is setby law or educational services is exempt (§345.003).

Interest Rate and Fee Caps: Certain itemized charges are allowed, including filingfees, registration or title fees, taxes, other fees required by law, and premiums forauthorized insurance (§345.005). The “amount of the time price differential is notinterest” (§345.006). The time price differentials for contracts with equal monthlypayments are: 1.12 percent up to $500; 2.10 percent up to $1,000; 3.8 percent on anypart over $1,000 (§345.055). §345.061 provides for payment of attorney fees forcollection, and court costs, and disbursements.

Loan Terms: §345.051 lists the requirements for a retail installment contract: must bein writing, dated, signed by the retail buyer and completed. §345.052 requires thatthe contract must specify: 1) the name and address of the seller and buyer; 2) theplace of business of the seller; 3) the residence or other address of the buyer; 4) the

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cash price; 5) the amount of buyer’s down payment/trade-in; and 6) each itemizedcharge. §345.062 provides that the seller may only accelerate upon default or if “theholder believes in good faith that the prospect of the buyer’s payment or performanceis impaired.” §345.065 requires the delivery of the contract to the buyer. §345.066gives the buyer the right to rescind the contract if the buyer has not received deliveryof the goods or services.” §345.069 allows a holder to defer the scheduled due date ofall or part of one or more installments, and to charge a fee for the deferral. §345.070allows the parties to amend the contract. §345.073 allows a buyer to prepay acontract, and §§345.074 and 075 provide for a refund credit upon prepayment.§§345.078 and 079 contains provisions for consolidation of contracts. §345.081requires a retail seller who has entered into a retail installment contract “to performservices or install goods for modernization, rehabilitation, repair, alteration,improvement or construction of improvements to real property” to obtain a certificate ofcompletion or satisfaction from the buyer “when all of the services have beenperformed, or goods installed as required under the contract.”

Prohibited Loan Terms: A seller is prohibited from inducing a buyer to becomeobligated at the same time under more than 1 contract for the deliberate purpose ofobtaining a greater amount of time-price differential (§345.080).

Disclosures: §345.052 requires a notice to the buyer not to sign if the contract hasblank spaces; that the buyer is entitled to copy of contract; and that the buyer has theright to pay off in advance.

Prohibited Acts: The seller cannot improperly induce a retail buyer to sign a certificate(§345.081).


Civil Penalties/Enforcement: A person who charges more than allowed is liable fortwice the excess charged and default or deferral charges contracted for, andreasonable attorney fees (§349.001). A person who fails to perform as required by thissubtitle, or performs in violation of the act, is liable for an amount that does not exceedan amount computed under 1, but not both, of the following: 1) 3 times the actualeconomic loss of the obligor; or 2) twice the interest contracted for, not to exceed$2,000 in a transaction in which the amount financed does not exceed $5,000, or$4,000 in a transaction in which the amount financed exceeds $5,000 (§349.003).There are limitations on liability for unintentional or bona fide errors if the lender is inconformity with other laws (§349.101 et seq.), and for correcting violations (§349.201et seq.). A lender’s liability for not being licensed or registered is limited bysubsequent licensing or registration (§349.301).


Applicability of State UDAP: Yes. Texas’ UDAP is broadly defined (§§17.45 and 46).It allows the consumer to collect economic damages from the use or employment ofany practice which is specifically enumerated (§17.46), a breach of an express orimplied warranty, an unconscionable act, or insurance bad faith. A prevailingconsumer may be awarded actual economic damages and up to 3 times actualeconomic damages. The act requires, as a prerequisite to filing a lawsuit, a 60-daynotice to the defendant, during which time the defendant may inspect the goodscausing the damage. Further, §17.5052 allows a defendant to make an offer of

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settlement, giving the plaintiff a certain amount of time to accept or reject the offer.The offer must include an amount for actual damages and an amount for attorney fees.If the consumer rejects the offer, then the court can limit the consumer’s eventualrecovery if the amount awarded is the same as, substantially the same as, or lessthan that offered.

Special Assignee Provisions: Yes. The buyer may continue to pay the last holder,unless the buyer receives notice of the assignment (§345.303). The buyer does notwaive any right of action or defense, unless the holder acquires the contract in goodfaith, gives notice of the negotiation, and does not receive from the buyer, before the31st day after the day on which the notice was mailed, written notice of a fact thatgives rise to the claim or defense (§345.304). The section also includes the requirednotice language. Holders are required to be registered (§345.351).

Small Loans and Installment LoansCitation: Tex. Fin. Code Ann. Chapter 342 (Small Loans) and Chapter 343 (InstallmentLoans)

Applicability: Chapters 342 and 343 of the Finance Code (Chapters 341-349) apply tosmall loans under $2,500 (Chapter 342) and other installment loans (Chapter 343).Neither the definitions in Chapters 343 or 341, nor the definitions chapter of theFinance Code clearly define the parameters of Chapter 343 (it can be assumed that itis for loans exceeding $2,500). Under Chapter 342, a lender has to be licensed underthe chapter, a bank, or a savings and loan association (see definitions at §341.001).

Licensing Requirements: For small loans (§342.101-162)

Interest Rate and Fee Caps: For small loans, the interest rate cap is 18 percent for anamount up to $300, and 8 percent for amounts between $300 and $2,500 (§342.201).Lenders are allowed to collect additional interest for default, up to $.05 for each $1.00of a scheduled installment (§342.202). For other installment loans, 8 percent, oralternatively, “the loan contract may provide for a rate that does not exceed a rateauthorized by Chapter 303.” (Under Chapter 303, the interest rate cap is 24 percent.Lenders are allowed to charge additional interest for default (§343.004) and defermentof installments (§343.005).

Loan Terms: For small loans: A lender is required to refund pre-computed interestwhere loan is prepaid in full (§342.251 et seq.). §342.401-416 contains requirementsaddressing the inclusion of property insurance in a loan. For installment loans:§343.101 et seq. requires the lender to refund pre-computed interest when the loan isprepaid in full. §343.201-216 addresses the inclusion of insurance.

Disclosures: For small loans, §342.601 requires the delivery of a statement to aborrower with the names and addresses of the parties, and the types of insurancerequired.

Prohibited Acts: A lender is prohibited from: 1) inducing a borrower into more than 1loan which directly or indirectly charges more interest than allowed under the act(§342.651); 2) charging fees (except as authorized by the Chapter) for investigating,arranging servicing, or collecting the loan (§342.652); 3) forbearing money, credit,goods, or things; and 4) for performing any other service. A small lender is prohibitedfrom taking as security under the chapter an assignment of wages or a lien upon real

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property (§342.653).


Civil Penalties/Enforcement: A person who charges more than allowed is liable fortwice the excess charged and default or deferral charges contracted for, andreasonable attorney fees (§349.001). A person who fails to perform as required by thissubtitle, or performs in violation of the act, is liable for an amount that does not exceedan amount computed under 1, but not both, of the following: 1) 3 times the actualeconomic loss of the obligor; or 2) twice the interest contracted for, not to exceed$2,000 in a transaction in which the amount financed does not exceed $5,000, or$4,000 in a transaction in which the amount financed exceeds $5,000 (§349.003).There are limitations on liability for unintentional or bona fide errors if the lender is inconformity with other laws (§349.101 et seq.), and correcting violations (§349.201 etseq.). A lender’s liability for not being licensed or registered is limited by subsequentlicensing or registration (§349.301).



Interest RatesCitation: Tex. Fin. Code §§302.00, et seq.

Applicability: Establishes interest rates in Texas

Interest Rate and Fee Caps: “Except as otherwise fixed by law, the maximum rate ofinterest is 10 percent” (§302.001). Where there is no specified interest rate, the rateshall be 6 percent (§302.002). The interest rate on amounts over $250,000 is no morethan 18 percent (§302.102). Additional “optional interest rates” are permitted(§302.106). This section does not apply to a lien secured by the obligor’s homestead.Requirements for computing “weekly ceilings” are included (§§303.301 to 303). Thereis a “minimum weekly, monthly, quarterly, or annual ceiling” of 18 percent per year forloans and 14 percent for open-ended accounts (§303.304). There is a “maximum”interest ceiling of 24 percent (except 28 percent for loans of more than $250,000 andnot for persona, household and family purposes); and a maximum rate of 21 percentfor open-ended charge agreements (§303.305).

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Disclosures: A notice to the consumer is required if a variable rate agreement is used(§303.501).

Criminal Penalties: If a person contracts for an amount more than twice the amountallowed by law, it is a misdemeanor punishable by a fine of up to $1,000 (§305.005).

Civil Penalties/Enforcement: A person who receives interest greater than allowed bythe law is liable for: 3 times the amount computed by subtracting the amount ofinterest allowed by law from the total amount of the interest contracted for, or $2,000or 20 percent of the amount of the principal, whichever is less (§305.001). If theperson charges more than twice the allowed interest, the person is liable, in additionto the amount calculated above, to the borrower for the principal amount of the loan(§305.002). §305.003 allows an award of attorney fees. A person is not liable for an“accidental or bona fide error” (§305.101). A person is allowed to correct a violationwithin 60 days of notice (§305.103).

Private Right of Action: Implied


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Utah Consumer Credit CodeCitation: Utah Code Ann. §70C-1-201, et seq.

Applicability: The act applies to “all credit offered or extended by a creditor to anindividual person primarily for personal, family, or household purposes” (§70C-1-201).

Exemptions: §70C-1-202 exempts: extensions of credit primarily for business,commercial or agricultural purposes; closed-ended transactions secured by a first lienon a dwelling unit or house; securities or commodities transactions; extensions ofcredit not secured by realty in excess of $25,000; any transaction under public utilityor common carrier tariffs; sale of insurance; pawnbroker transactions; loans made orguaranteed by federal programs.

Interest Rate and Fee Caps: Parties may agree to any finance or other charge (§70C-2-101). §70C-2-102 allows delinquency charges; §70C-2-103 allows deferral charges;§70C-2-105 allows for payment of reasonable attorney fees in the event of default,including one who is a salaried employee of the creditor or its assignee.

Loan Terms: §70C-3-101 allows prepayment. §§70C-4-101 to 104 address open-ended consumer credit contracts.

Prohibited Loan Terms: The authorization to confess judgment (§70C-2-201);assignment of earnings (§70C-2-202); and the taking of additional security inconsumer leases are prohibited (§70C-2-203).

Disclosures: Home solicitation sales requirements (§§70C-5-101 to 105)

Civil Penalties/Enforcement: Enforcement is by the Department of FinancialInstitutions (Chapter 8, §§70C-8-201 et seq.), who also has the power to investigateand seek an injunction. §70C-7-101 to 206 provides for remedies. §70C-7-106 givesthe court the power to refuse to enforce an unconscionable agreement. §70C-7-107requires that a creditor give a debtor notice that a negative credit report is being turnedin. Under §70C-7-201, a debtor is not required to pay a charge in excess of thatallowed by the act; any debtor who has paid has a right to a refund. If the creditorrefuses to make a refund within a reasonable time of a demand, the debtor mayrecover a penalty in an amount not exceeding the greater of either the finance chargeor 10 times the amount of the excess finance charge. A prevailing plaintiff may beawarded attorney fees (§70C-7-204).

Private Right of Action: Yes. An action may be brought within one year of “theoccurrence of the violation” (§70C-7-205).

Applicability of State UDAP: Utah Code Ann. §13-11-3 broadly defines a consumertransaction as the sale or lease of goods or services primarily for personal, family, orhousehold purposes “or for purposes that relate to a business opportunity that requiresboth his expenditure of money or property and his personal services on a continuingbasis and in which he has not been previously engaged.” The act has a detailed list ofprohibited unfair and deceptive practices, including the failure to give the 3-daynotification on a home solicitation sale. Consumers are allowed to bring action toenforce, although the act contains restrictions (§13-11-19).

Special Assignee Provisions: The debtor is allowed to proceed against the assigneeas well as the original creditor (§70C-7-202).

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UsuryCitation: Utah Code Ann. §§15-1-1, et seq.

Applicability: “Unless specified by contract,” the rate of interest is 10 percent.

Exemptions: Written contracts are exempt.

Interest Rate and Fee Caps: The maximum interest rate is 10 percent unlessspecified by contract

Applicability of State UDAP: Utah Code Ann. §13-11-3 broadly defines a consumertransaction as the sale or lease of goods or services primarily for personal, family, orhousehold purposes “or for purposes that relate to a business opportunity thatrequires both his expenditure of money or property and his personal services on acontinuing basis and in which he has not been previously engaged.” The act has adetailed list of prohibited unfair and deceptive practices, including failure to give the 3-day notification on a home solicitation sale. Consumers are allowed to bring action toenforce, although the act contains restrictions (§13-11-19).

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Licensed LendersCitation: Vt. Stat. Ann. Tit. 73, §§2200 to 2239

Applicability: The act requires anyone: 1) engaging in businesses including loaningmoney and credit goods, 2) anyone acting as a mortgage broker, and 3) acting as asales finance company to have a license (§2201).

Exemptions: §2201 exempts from the licensing requirements: state agencies; federalagency utilities; banks, savings and loans, credit unions; pawnbrokers; insurancecompanies; sellers of goods or services that finance the sale of such goods orservices; lenders conducting their business through revolving loan accounts, and whoare exempt under 501 (c) IRC; lenders of commercial loans in excess of $1,000,000;and persons who loan less than $50,000 per year and charge no more than 12percent.

Licensing Requirements: Tit. 73

Interest Rate and Fee Caps: §2230 references the interest rate caps at Tit. 9, §41.

Disclosures: §2232a requires certain disclosures to the borrower, including: scheduleof charges; name and address of parties; description of loan and maturity; interest.The lender must also provide the borrower with receipts upon request or annually.§2232a further provides for pre-payment in full, and voiding of the contract uponpayment in full.

Criminal Penalties: §2215 (b) makes a violation of the act a criminal offense.

Civil Penalties/Enforcement: §2215 provides that the Commissioner may impose apenalty of not more than $1,000 for each violation, and order the lender to makerestitution. If a violation is knowing and willful, the lender may not recover anything. Ifthe violation is not knowing and willful, then the lender may not recover interest andcharges, but may collect the principal.

Applicability of State UDAP: Vermont’s UDAP (Tit.. 63, §§2451-2463) is broadlydrafted and incorporates Federal Trade Commission (FTC) standards. §2461 (b)provides the consumer with a right of action for damages, up to 3 times the actualdamages, and attorney fees.

Retail Installment SalesCitation: Vt. Stat. Ann. tit. 61, §2401 to 2410

Applicability: The act applies to retail installment sales transactions (§2401) as “anytransaction in which a retail buyer purchases goods or services as defined herein for aprice consisting of the cash price and other amounts as limited by this chapter andagrees under a retail installment contract or retail charge agreement as defined hereinto pay a part or all of the price in 1 or more deferred installments.” The term includesevery transaction notwithstanding the fact that the retail seller transfers or assigns theobligation, that the amount financed is determined by reference to charts orinformation furnished by a financing institution, that the forms of instruments werefurnished by financial institutions, or that the credit standing of the retail buyer hasbeen evaluated by a financial institution.

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Exemptions: §2407 contains the following exemption: “This chapter shall not affect orapply to any loans or to the business of making loans under or in accordance with thelaws of this state, nor shall any of the provisions of the loan or interest statutes of thisstate affect or apply to any retail installment transaction regulated hereunder. … Thischapter shall apply exclusively to all retail installment transactions as defined in§2401 of this title.”

Licensing Requirements: §§2402 to 2404 provide for licensing of sales financecompanies (that is, companies which buy and sell retail contracts).

Interest Rate and Fee Caps: The usury statute contains a Retail Installment SalesAct (RISA) limit of 18 percent for the first $500, then 15 percent.

Loan Terms: §2405 requires the following: loans to be in writing, dated and signed byboth parties, but need not be contained in one document; at least 8-point type mustbe used, with 10-point type designating it as a retail contract, and shall contain, inbold, the notice to buyer to not sign the contract in blank and to keep a copy of thecontract; name and address of buyer and seller, a description of the goods orservices; and the standard RISA disclosure. The contract must disclose anyinsurance required, cannot contain blank spaces, may not have a waiver provision,and allows for repayment in full in advance. §2406 provides for retail chargeagreements.

Prohibited Acts: Any violation of act is prohibited.

Criminal Penalties: §2409 (e) makes any violation of the act a misdemeanor.

Civil Penalties/Enforcement: Under 2409: 1) any person in violation of the act (or hisassignee with knowledge) is barred from the recovery of finance charge or othercharges, and the buyer shall have the right to recover an amount equal to the chargespaid, and collection and attorney fees; 2) the buyer may recover 2 times the amountof the finance charge or other charges imposed, and attorney fees for a willfulviolation; and 3) the lender may not collect any principal, interest, or other charges fora willful violation.

Private Right of Action: See above

Applicability of State UDAP: Vermont’s UDAP (Tit. 63, §§2451-2463) is broadlydrafted and incorporates FTC standards. §2461 (b) provides the consumer with a rightof action for damages, up to 3 times actual damages, and attorney fees.

Interest GenerallyCitation: Vt. Stat. Ann. Tit. 9, Chapter 4,

Applicability: The act establishes interest rates for most transactions.

Exemptions: Exemptions include: obligations of corporations, including municipal andnonprofits; obligations incurred by any person or entity to finance in whole or in partincome producing business or activity, but not including obligations incurred to financefamily dwelling units when used as a residence or to finance real estate devoted toagricultural purposes; obligations to finance the purchase, construction, orimprovement of property for seasonal or part-time occupancy; obligations guaranteedby the United States (§46).

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Interest Rate and Fee Caps: Under §41a, the rate, if no other rate is specified by law,is 12 percent, except: for 1) single payment loans by the lender are regulated underTitle 8 (banks) and federal savings and loans, 18 percent; 2) retail installmentcontracts, 18 percent for first $500, then 15 percent for anything in excess of $500; 3)computation of interest for bank credit card accounts or revolving lines of credit; 4)loans on new vehicles, mobile homes boats, at 18 percent, and on used at 20 percent;5) “installment loans not otherwise limited by the preceding subdivisions, the interestrate shall not exceed 24 percent on the first $1,000, and 12 percent for any amount inexcess of $1,000. … for loans or extensions of credit secured by subordinate liensagainst real estate, the interest rate shall not exceed 18 percent; loans secured byfirst liens on real estate, the interest rate may be the same as may be charged by anyfinancial institution or seller of residential real estate under the provisions of the federalDepository Institutions Deregulation and Monetary Control Act; retail chargeagreements, up to 21 percent." §42 specifies permitted charges: reasonable cost ofcredit investigation and appraisal fees; reasonable cost of title evidence, includingabstracts, legal opinions or title insurance; reasonable cost of protection againstinsurable hazards; reasonable cost of creditor life or disability; filing and recordingfees; reasonable value of services rendered in connection with the making of any loanof $4,000 or less; and the reasonable cost of private mortgage insurance. A borrowermay procure an opinion and abstract of title from an attorney of choice who isacceptable to the lender, or hazard insurance in a company of borrower choiceacceptable to the lender, and the lender’s acceptance shall not be unreasonablywithheld.

Loan Terms: The prepayment of loans is allowed (§45).

Disclosures: §101 sets forth notices required for demand notes, and when there is aco-signer involved in a loan.

Criminal Penalties: Any violation of the act is a misdemeanor (§50).

Civil Penalties/Enforcement: Under §50, “when a greater interest rate than is allowedis paid, the person paying it shall recover the amount so paid above the legal interest,with interest thereon from the time of payment and all expenses of collection,including reasonable attorney fees, in a civil action on this statute.” A lender may notrecover more than half the principal if he knowingly or willfully violated the statute.

Private Right of Action: Yes. See above

Applicability of State UDAP: Vermont’s UDAP (Tit.. 63, §§2451-2463) is broadlydrafted and incorporates FTC standards. §2461 (b) provides the consumer with a rightof action for damages, up to 3 times actual damages, and attorney fees.

Other: Under §103: “For any fixed rate loan, secured by a lien against real estate,used or to be used by the borrower as a residence, the rate of interest and other termsof the loan shall be for the duration of the loan at no more than the rate and termsestablished in the commitment letter for the loan by the lender, whether or notconditioned on future actions or events, and not the date of execution or closing of thetransaction, unless specifically disclosed and agreed to by the borrower on the datethe commitment letter issues.” Further, for any variable rate loan secured by realestate, the lender shall disclose any introductory discount at the time the commitmentletter issues. Any subsequent discounts have no force and effect.��

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Interest and UsuryCitation: V.I. Code Ann. tit. 11, §§951 to 957

Exemptions: The maximum lawful rate of interest on first priority mortgage loans doesnot apply to Farmer’s Home Administration (FHA), Veteran’s Administration (VA) orother loans insured by an agency or department of the federal government, providedthat such loans are subject to a federal limit on interest rates and points to becharged (§951).

Interest Rate and Fee Caps: The interest rate caps are: loans of $9,000 or less,18.5percent per year; first priority mortgage loans of $100,000 or less, not more than 1.5percent above the Federal Home Loan Mortgage Corp.’s posted yield on the lastbusiness day of the previous month on the 30-year standard conventional fixed ratemortgages committed for delivery within 60 days, plus a maximum $150 applicationfee, 50 percent of which shall be refunded unless application approved, plus one and ahalf points; loans over $9,000 and on first priority mortgage loans of more than$100,000 any rate as agreed in writing by the parties; first priority mortgage loans, nofees and interest other than those noted above except actual out-of-pocket costs(§951).

Prohibited Loan Terms: No fee, penalty, or other form of payment may be chargedupon prepayment of all or part of the loan (§951).

Civil Penalties/Enforcement: Any person paying usurious interest may recover doublethe amount of interest paid (§953). The entire interest on debt is forfeited if usuriousinterest is contracted for; and the borrower is also entitled to any costs of any actionbrought by the lender on the debt (§954).

Private Right of Action: Yes. (§953)

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Virginia Consumer Finance Act (Small Loans)Citation: Va. Code Ann. §§6.1-244 to 309

Applicability: This act: controls licensing of lenders of small loans; establishesallowable interest rates; and provides penalties (§6.1-249). The provisions apply onlyto businesses lending amounts of $6,000 or less.

Licensing Requirements: Article 2, Licensing Required (§§6.1-249 to 253); Article 3,Licenses Generally (§§6.1-254 to 265); Article 4, Place of Business (§§6.1-266 to278); and Article 6, Conduct of Business (§§6.1-281 to 291) address licensure.

Interest Rate and Fee Caps: §6.1-272.1 sets the maximum rate of interest for loansup to $2,500 at 36 percent; loans between $2,500 and $6,000, the interest may onlybe “as stated in the written contract signed by the borrower.” §6.1-278 limits anyadditional charges and fees which can be charged to insurance premiums actuallypaid out by the license; and the actual costs of recordation fees and other relatedcharges.

Prohibited Acts: The licensee may not distribute or advertise deceptive, false, ormisleading information regarding rates, terms, and conditions, etc.

Criminal Penalties: §6.1-308 makes any violation of the act a misdemeanor.

Civil Penalties/Enforcement: If a licensee charges more than allowed, the licensee: 1)must refund that amount and be liable for a penalty of twice the amount of suchexcess charges, as well as costs and attorney fees; 2) may be subject to a fine of upto $10,000 (§6.1-309).

Private Right of Action: None specified, but implied in the above section

Applicability of State UDAP: No. §59.1-199 (D) excludes “banks, savings and loaninstitutions, credit unions, small loan companies, public service corporations,mortgage lenders” from the act.

Interest and UsuryCitation: Va. Code Ann. §§6.1-330.49 to 90

Applicability: The act sets interest rates.

Exemptions: Article 6 exempts loans by banks and regulated lenders; banks cancharge any rate of interest. Article 7 exempts credit unions who can also charge anyamount agreed to. Article 8 exempts real estate loan transactions and sets limits forfees and charges. §6.1-330.71 limits interest on second mortgages to 18 percent(regulated banks, savings and loans, are exempt under §6.1-330.73. Article 11exempts “closed-end installment credit” transactions from any interest limitation.

Interest Rate and Fee Caps: §6.1-330.53 sets interest rates at 8 percent. (§6.1-330.55, except as otherwise permitted by law, no contract shall provide for interestgreater than 12 percent.

Disclosures: §6.1-330.79 requires compliance with Regulation Z, Truth in Lending, forloans under Article 11 (consumer credit transactions).

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Prohibited Acts: Any waiver of benefits of this chapter is prohibited (§6.1-330-58)

Civil Penalties/Enforcement: §6.1-330.56 states that a borrower may plead usury, andif the contract is found to be usurious, then the borrower shall not pay more than theprincipal sum. §6.1-330.57 further allows the debtor to recover twice the amount ofinterest paid in the past 2 years, court costs, and attorney fees.


Applicability of State UDAP: No. §59.1-199 (D) excludes “banks, savings and loaninstitutions, credit unions, small loan companies, public service corporations,mortgage lenders” from the act.

Special Assignee Provisions: “… as to any loan to which the provisions of §§6.1-330.71 and 72 (provisions dealing with second mortgages) apply, the borrower mayassert the defense (of usury) against any assignee or transferee of the contract ofindebtedness” (§6.1-330.59).

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Consumer Loan ActCitation: Wash. Rev. Code Chapter 31.04

Applicability: The act requires a person to obtain a license in order to loan money atthe interest rates authorized by the chapter (§31:04:035).

Exemptions: Banks, savings banks, trust companies, savings and loans, creditunions, and pawn brokers are exempt (§31:04.025).


Interest Rate and Fee Caps: §31:04.105 allows the licensee to collect up to 25percent interest for loans under the chapter. The section also sets forth allowedcharges (including appraisals, and title searches), delinquency charges, anddishonored check charges.

Loan Terms: See §31:04:105 above. §31:04:115 additionally sets forth requirementsfor open-ended loans.

Prohibited Loan Terms: The lender may not make loans with a repayment periodgreater than 6 years “except for open-ended loans or loans secured by real estate orpersonal property used as a residence” (§31:04:125).

Prohibited Acts: A licensee may not advertise, print, display, publish, distribute, orbroadcast any statement or representation with regard to the rates, terms, orconditions for the lending of money that is false, misleading, or deceptive”(§31:04:135).

Criminal Penalties: A violation of the law is a gross misdemeanor (§31:04:175).

Applicability of State UDAP: Washington’s UDAP (§19.86, et seq.) is broad; aviolation will only be found if the act is injurious to the public interest. The act allowsthe plaintiff to obtain costs and attorney fees, and treble damages up to $10,000.

Retail Installment Sales of Goods and ServicesCitation: Wash. Rev. Code Ann. Chapter 63:14

Applicability: The act applies to transactions in which a retail buyer purchases goodsor services from a retail seller pursuant to a retail installment contract which providesfor a service charge and under which the buyer agrees to pay the unpaid balance in 1or more installments or which provides no service.

Exemptions: “Home improvement retail sales transactions which are financed orinsured by the Farmer’s Home Administration (FHA) are not subject to this chapter”(§63:14:020).

Interest Rate and Fee Caps: Interest rate is not specified. §63:14:130 says that theservice charge may be an amount agreed to and properly disclosed in the contract.§63:14:90 sets forth delinquency, collection charges, or attorney fees allowed.

Loan Terms: §63:14:20 provides that retail installment contracts shall be contained ina single document, except that in a transaction involving the repair, alteration, or

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improvement upon or in connection with real property, the contract may be secured bya mortgage on the real property contained in a separate document. §63:14:040requires retail installment contracts to contain the names of the seller and buyer, theplace of business of the seller, the residence of the buyer, a description of goods soldor to be sold or service furnished. The statute also requires the standard 9-pointRetail Installment Sales Act (RISA) disclosure.

Disclosures: In addition to requiring the 9-point RISA disclosure as noted above,§63:14:040 also requires a standard “Notice to Buyer” warning (that is, do not sign ifthere are any blanks, entitlement to a copy, prepayment in full at any time, a briefhome solicitation disclosure of the 3-day cancellation rule, and a notice of the interestrate). Any disclosure which complies with TIL requirements is deemed to comply withrequirements of this act (§63:14:151).

Criminal Penalties: A violation of the act is a misdemeanor (§63:14:170).

Civil Penalties/Enforcement: Under §63:14:175, “no person may pursue any remedyalleging a violation of this chapter on the basis of any act or omission that does notconstitute a violation of this chapter.” Anyone in violation of the chapter is barred fromrecovering any service charge, official fees, or any delinquency fee. If the servicecharge is in excess of amount allowed, the buyer may recover twice the amount ofservice charge paid, the amount of service charge contracted for an not paid, andattorney fees (§63:14:160).

Private Right of Action: Yes. §63:14:152

Applicability of State UDAP: Washington’s UDAP (§19.86, et seq.) is broad; aviolation will only be found if the act is injurious to the public interest. The act allowsthe plaintiff to obtain costs and attorney fees, and treble damages up to $10,000.

Special Assignee Provisions: §63:14:145 allows the assignment of retail contracts.The buyer may not be required to waive against an assignee any claim or defensearising out of the sale (§63:14:145) and is allowed suits against the holder(§63:14:152).

Other: A buyer is allowed to cancel a retail contract by a giving notice of cancellationwithin 3 days of the transaction (§63:14:154).

Consumer Finance Act (Small Loans)Citation: Wash. Rev. Code Chapter 31.08

Applicability: §31.08.020 requires a license for anyone in the business of makingloans of $2500 or less.

Exemptions: §31:08:220 excepts “any person doing business under and as permittedby any law of this state or of the United States relating to banks, savings banks, trustcompanies, savings and loans, or building and loan associations, industrial loancompanies or credit unions, and pawnbroker businesses.”

Licensing Requirements: §§31.08.020 to 150

Interest Rate and Fee Caps: §31:08:160 allows an interest rate of 30 percent on loans

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of up to $500, 18 percent on loans between $500 and $1,000, and 12 percent on loansof $1,000 to $2,500. The provision allows for default fees.

Loan Terms: §31:08:160 sets forth various requirements for loans, including theprovisions for repayment in advance and rebate of interest paid in advance, andpayments in substantially equal amounts. §31:08:170 also: 1) requires receipts to beprovided upon request, 2) permits payment to be made in advance, 3) allowspayments in full, and 4) gives the licensee the right to obtain from the borrower afinancial statement.

Prohibited Loan Terms: A borrower may not split up or divide a loan “for the purpose orthe result of which would be obtaining a higher interest rate than would otherwise bepermitted by this section” (§31:08:160). Loans are restricted terms to 48 1/2 months(§31:08:173).

Disclosures: Licensees are required to provide statements to the borrower showing:the amount financed; the date of the loan; the schedule of payments; the nature of thesecurity; the name and address of the licensee, and the finance charges (§31:08:170).

Prohibited Acts: §31:08:100 establishes the grounds for revocation, suspension, orsurrender of license, including violation of the chapter. §31:08:150 prohibits thelicensee to advertise in any manner “any false, misleading, or deceptive statements orrepresentations in regard to rates, terms of conditions for the lending of money.” Thissection also prohibits licensee from operating business in conjunction with any otherbusiness if the “supervisor of the division of banking finds that the transaction of suchother business “would facilitate evasion of this chapter or rules.” It further prohibits thetaking of a confession of judgment.

Criminal Penalties: A violation is a “gross misdemeanor” (§31:08:210).

Civil Penalties/Enforcement: If someone is guilty of a gross misdemeanor, the entirecontract is void and the lender cannot collect any principal, interest, or chargeswhatsoever (§31:08:210). If the licensee charges more than allowed, the licensee orhis successor may not collect any principal, interest, or any charges (§31:08:200).

Applicability of State UDAP: Washington’s UDAP (§19.86, et seq.) is broad; aviolation will only be found if the act is injurious to the public interest. The act allowsplaintiff to obtain costs and attorney fees, and treble damages up to $10,000.

Special Assignee Provisions: If the licensee is charging excessive interest, then theassignee is also precluded from collecting principal or interest (§31:08:200).

Interest and UsuryCitation: Wash. Rev. Code, Chapter 19.52

Applicability: The act applies to loans of money.

Exemptions: The defense of usury may not be raised or usury may not be alleged ifthe transaction was primarily for agricultural, commercial, investment, or businesspurposes, provided that this exception does not apply to a consumer transaction ofany amount (§19.52.080); the usury statutes do not apply to retail installmenttransactions (§19.52.100).��

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Interest Rate and Fee Caps: §19.52.010 sets interest rate, in the absence of anagreement at 12 percent. §19.52.020 limits interest rates, even with an agreement, tothe higher of 12 percent or 4 percent above “the equivalent coupon issue yield (aspublished by the Federal Reserve Bank) of the average bill rate for 26 week treasurybills …” §19.52.020 (2) allows an additional “set up charge” on loans of $500 or less.


Civil Penalties/Enforcement: If a greater rate is contracted for, and not collected, thenthe creditor may collect the principal only (§19.52.030). If interest is in excess of thatallowed has been collected, then the creditor may only collect the principal, “lesstwice the amount of the interest paid, and less the amount of all accrued and unpaidinterest; the debtor shall be entitled to costs and attorney fees.”

Private Right of Action: §19.52.032 specifically allows the debtor or creditor to bringdeclaratory judgment action to establish if a usurious rate has been charged. Theaction must be commenced within 6 months of the time the last payment was due,and if brought without basis, the debtor is potentially subject to attorney fees.

Applicability of State UDAP: Under §19.52.036, entering into a usurious contract is anunfair act or practice for the purpose of Washington’s Consumer Protection Act foundin Chapter 19.86.

Special Assignee Provisions: “Nothing contained in this Chapter shall be deemed tolimit any charge made by an assignee of a retail installment contract or chargeagreement to the seller assignee upon the sale, transfer, assignment, or discount ofthe contract or agreement, notwithstanding retention by the assignee of recourserights and notwithstanding duties retained by the assignee to service delinquencies,perform services or warranty agreements regarding the property which is the subjectmatter of the assigned or discounted contracts or charge agreements, or to performany duty with respect to the account or contract assigned or the subject matter ofsuch account” (§19.52.130).

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Secondary Mortgage LoansCitation: W. Va. Code §§31-17-1 to 17

Applicability: The act applies to secondary mortgage loans (§31-17-1); loans made toan individual or partnership which are secured in whole or in part by a mortgage ordeed of trust upon any interest in real property used as a dwelling withaccommodations for not more than 4 families, which property is subject to one or moreprior mortgages, deeds of trust, or vendor’s deeds.” The act requires anyone engagedin the business of lender or broker to obtain a license (§31-17-2).

Exemptions: §31-17-2 (b) exempts loans made by banking institutions, trustcompanies, savings and loan associations, building and loan associations, industrialloan companies, and credit unions.

Licensing Requirements: §§ 31-17-2 to 7

Interest Rate and Fee Caps: §31-17-8 allows an interest rate up to 6 percent, providedthat if the borrower prepays, he receives a refund computed in accordance with therule of 78s, and total charges are not in excess of 10 percent. Charges are defined toinclude title search fees; title opinion fees; title guarantee fees; credit report fees;investigation costs; legal fees; document fees; and appraisal costs.

Loan Terms: See Disclosures below. The lender must provide the borrower with astatement of the account, upon request, and must deliver a release upon payment infull (§31-17-9).

Disclosures: The closing statement must include: the amount and date of the note;nature of the security; interest and charges; principal on the loan; disposition of theprincipal; description of the payment schedule; terms of any advances; chargesimposed for past due installments; description of insurance required; name andaddress of borrower and lender; and that the borrower may prepay the loan (§31-17-9).

Prohibited Acts: It is unlawful for any person to cause to be placed before the publicany false, misleading, or deceptive advertising pertaining to second mortgages (§31-17-10).

Criminal Penalties: Yes. Any violation is a misdemeanor (§31-17-18).

Civil Penalties/Enforcement: The Commissioner has the authority to enforce thelicensing requirements, and may suspend or revoke license if the Commissioner findsthat the licensee has violated the act, and: has committed any fraud or engaged in anydishonest activities with respect to secondary mortgage loan business in this state, orfailed to disclose any of the material particulars of any secondary mortgage loantransaction in this state to anyone entitled to such information; or has otherwisedemonstrated bad faith, dishonesty or any other quality indicating that the business ofthe licensee in this State has not been or will not be conducted honestly or fairlywithin the purpose of this article (§31-17-7). The Commissioner may bring an action toenjoin violations under §31-17-16. A loan made in violation of the act is void, and theholder shall have no right to collect principal or interest (§31-17-17).

Applicability of State UDAP: Yes. The act (§46A-6-101) is broad enough toencompass usury and lending. §46A-6-106 gives consumers the right to bring anaction to recover actual damages. It does not specifically address multiple damages

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or attorney fees.

Special Assignee Provisions: No, except that the holder, as well as original creditor,is precluded from collecting principal and interest if the loan is in violation of the act(§31-17-17).

Money and InterestCitation: W. Va. Code §§47-6-1 to 47-6-11

Applicability: The act establishes legal interest rates.

Interest Rate and Fee Caps: §47-6-5 establishes the following interest rates: 6percent when there is no agreement in writing; 8 percent for agreements in writing.As an alternative, where the loan is made for the purpose of purchasing residentialreal estate, or additions or improvements thereto, parties may agree to a rate not toexceed 9 percent, provided there is no penalty for prepayment in advance by cash.§47-6-5a allows interest rates on installment loans “at a rate not in excess of 6percent upon the principal amount of the loan, for the entire period of the loan, andadd such charge to the principal amount of the loan; or 6 percent upon the faceamount of the instruments evidencing the obligation to repay the loan, for the entireperiod of the loan and deduct such charge in advance, but in no case shall theinterest on such a discount loan exceed an annual rate of 15 percent. §47-6-5b givesthe Commissioner of Banking the authority to set a maximum interest rate “onnonprecomputed loans or forbearance of money made pursuant to this sectionsecured by mortgages or deeds of trust on real estate.” That interest rate shall notexceed the monthly index of long term United States government bond yields for thepreceding calendar month.

Prohibited Acts: Any violation of the statute is a prohibited act.

Civil Penalties/Enforcement: Any contract at a greater rate of interest than is allowedby law shall be void as to all interest, and the borrower may, in addition, recover fromthe original lender, or creditor or other holder not in due course, an amount equal to 4times all interest agreed to be paid (§47-6-6).


Applicability of State UDAP: Yes. The act (§46A-6-101) is broad enough toencompass usury and lending. §46A-6-106 gives consumers the right to bring anaction to recover actual damages. It does not specifically address multiple damagesor attorney fees.

West Virginia Consumer Credit And Protection ActCitation: W. Va. Code Chapter 46A

Applicability: The chapter applies if: 1) a consumer is induced to enter into a revolvingcharge account, consumer loan pursuant to a revolving charge account, or consumerlease, by personal or mail solicitation; and 2) the goods, services, or proceeds aredelivered to the consumer in West Virginia, and the payment on such accounts is tobe made from the state (§46A-1-104).

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Exemptions: §46A-1-105 excludes certain transactions, none of which pertain exceptfor the exclusion for secondary mortgage lenders to the extent this act conflicts withthe Secondary Mortgage Act.

Licensing Requirements: Article 4, §§46A-4-101 to 113 set forth the licensingrequirements for consumer lenders.

Interest Rate and Fee Caps: §46A-3-101 sets the limit on “sales finance charge” as 18percent up to $1,500, and 15 percent on any amount over $1,500. The sales financecharge includes interest and other charges, but does not include delinquency fees ordeferral charges (§46A-1-102(44)). §46A-3-101(6) allows an interest rate of up to 18percent for sales involving mobile homes or mobile homes and associated real estate.§46A-3-101 (7) allows a rate of 18 percent as an alternative to any of the rates above.§46A-3-102 sets the interest for consumer credit sales of real estate at the amountsallowed under §47-6-5, which allows the Commissioner of Banking to establish ratesfor loans secured by real estate at a rate not to exceed the monthly index of long termUnited States government bond yields. §46A-3-103 allows interest on revolving chargeaccounts of 18 percent on first $750 and 12 percent thereafter. §46A-3-104: (a) allowsa bank to charge the interest allowed by §47-6-5 (as set by the Commissioner ofBanking); (b) allows a “regulated consumer lender” to charge interest at rates allowedby §46A-4-107, which is 31 percent for loans under $2,000, and 27 percent on loanssecured by real estate between $2,000 and $10,000, then 18 percent for loans greaterthan $10,000 (§47-6-5 also limits the amount of points which a lender can charge);and (c) allows a credit union to collect interest at the rate set by §47-6-5, cited above.§46A-3-106 sets loan finance charges for revolving loan accounts. §46A-3-107 setssales finance charges for loan refinancing. §46A-3-108 sets sales finance charges forloan consolidation. §46A-3-109 states additional allowed charges, including officialfees and taxes, charges for allowed insurance, credit card charges, and closing costsfor loans secured by land. (b) sets forth requirements for insurance allowed to becharged. §46A-3-109a contains specific requirements if a lender wants to imposecollateral protection insurance, including notice in the original loan agreement, and anotice once the insurance has been placed. §46A-3-112-114 addresses allowabledelinquency and deferral charges.

Loan Terms: Article 2 provides a number of requirements for consumer credit loans,including: §46A-2-104 requires a “Notice to Co-signer;” §46A-2-105 provides aconsumer a right to refinance, without penalty, if the loan involves a balloon payment.§46A-2-106 requires the creditor to give the consumer 10-day notice of the right tocure a default before commencing any action or demand for return of the collateral.Until that period expires, the consumer has a right to cure.

Prohibited Acts: A lender is prohibited from taking a deficiency judgment in mostcases of repossession (§46A-2-119).

Criminal Penalties: Willful violations are misdemeanors under §46A-5-103.

Civil Penalties/Enforcement: If a lender violates the act, a consumer may bring anaction for actual damages, and for a penalty of up to $1,000 (§46A-5-101(1)). If acreditor violated the provisions related to consumer loans, the consumer loan is voidand the consumer is not obligated to pay the principal or the finance charge (§46A-5-101(2)). The creditor may, within 15 days of discovering the error and before a lawsuithas been filed, notify the consumer and corrects the error (§46A-5-101(7)).

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Applicability of State UDAP: Yes. The act (§46A-6-101) is broad enough toencompass usury and lending. §46A-6-106 gives consumers the right to bring anaction to recover actual damages. It does not specifically address multiple damagesor attorney fees.

Special Assignee Provisions: §46A-2-101 makes a holder in due course of anegotiable instrument subject to the claims and defenses of the buyer, if, after theholder takes assignment and provides notice to the buyer, the buyer makes a claimwithin 180 days. An assignee is liable to the claims and defenses of the buyer, butonly to the extent of the amount owed the assignee, except in the case of fraud, inwhich case the assignee will also be liable for any excess charges and penaltiesrecoverable under §46A-5-101 (see above) (§46A-2-102). A consumer is entitled topay the regular creditor until he receives notice of the assignment (§46A-2-113).

Other: §46A-2-132 provides the standard 3-day home solicitation sales requirements.

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Wisconsin’s Consumer Credit CodeCitation: Wis. Stat. §§421 to 427 (421 General Provisions; 422 Consumer Credit; 423Consumer Approval (that is, home solicitation); 424 Insurance; 425 Remedies; 426Administration; 427 Debt Collection.)

Applicability: The act covers all consumer transactions. §421.301 defines consumercredit transaction as including consumer credit sales, consumer loans, consumerleases, and transactions pursuant to open-ended credit plans.

Exemptions: Consumer transactions insured or guaranteed by federal programs areexempt (§421.203).

Interest Rate and Fee Caps: §422.201 sets interest rate caps at the greater of 18percent or 6 percent above the rate for 6 month United States Treasury bills.Additional charges such as official fees and taxes, insurance premiums, and, if agreedto, late fees and fees related to real estate transactions, if applicable (§422.202);delinquency fees (§422.203); deferral charges (§422.204); finance charges onrefinancing (§422.205); and finance charges on consolidation (§422.206) are allowed.

Loan Terms: §421:108 imposes an obligation of good faith in the performance of everyagreement or duty; §§422.208 and 209 contain the right to repay and provide for arebate upon repayment; §422.413 allows reasonable default charges.

Prohibited Loan Terms: §422.402 prohibits balloon payments, with the exception thatif the customer’s livelihood is dependent on seasonal income, balloon payments maybe allowed, but then a disclosure is required. §422.404 prohibits assignment ofearnings. §422.405 prohibits the confession of judgment by a borrower. §422.411prohibits attorney fee provisions in consumer credit transactions, with a limitedexception for consumer transactions secured by residential real estate. §422.414prohibits the use of multiple agreements designed to get around the interestlimitations in the act. §422.417 prohibits a creditor from taking a security interest ingoods if the loan is under $500, and in realty if the loan is under $1,000. §422.419prohibits waivers.

Disclosures: §§422.301 to 310 establish the standard UCCC disclosure requirements.

Prohibited Acts: Any violations of the act are prohibited.

Criminal Penalties: One who willfully violates the act is guilty of a misdemeanor andmay be fined up to $2,000 (§425.401).

Civil Penalties/Enforcement: §§425.101 to 501 address penalties and remedies.§425.104 gives the customer a right to cure a default, and requires the merchant togive written notice of default. §425.107 allows the court to throw out an agreement, inwhole or in part, which is unconscionable. §425.109 sets forth specific requirementsfor creditors to include in collection pleadings. §§425.205 and 206 provide consumerswith significant protection against repossessions. §425.205 allows the merchant tobring a replevin action to take possession of collateral after default, and includesnotice provisions designed to give the consumer the opportunity to “show cause” if notin default. §425.206 defines situations where a merchant may use self-helprepossession. §425.208 gives the customer the right to redeem within 15 days ofissuance of process, or one of the exceptions for non-judicial foreclosure. §425.209restricts deficiency judgments where the amount owing is $1,000 or less. §§425.301to 311 provide for the customer’s remedies. Under § 425.303, a creditor in violation is

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liable to the customer in an amount equal to $100 and actual damages. Under §425.304, a person in violation is liable for twice the finance charge, but no less than$100 and no more than $1,000, or actual damages. Under § 425.305, if a personviolates the Chapter, the transaction is void but the customer gets to keep the goods,services or money. Under § 425.308, if the customer prevails, the customer is entitledto costs and expenses and attorney fees.

Private Right of Action: Yes. (§ 425.307)

Applicability of State UDAP: §100.18 covers: 1) credit transactions; and 2) theplaintiff’s entitlement to actual damages and attorney fees.

Special Assignee Provisions: §422.407 states that an assignee is subject to allclaims and defenses of the customer against the assignor arising out of thetransaction, unless the assignee gives the required notice to the customer, and doesnot, within 12 months, receive notice of a claim. § 422.409 allows the customer tocontinue to pay the lender until the borrower has notice in writing of an assignment.

Money and Rates of InterestCitation: Wis. Laws Chapter 138

Applicability: The act establishes interest rates for most transactions.

Licensing Requirements: §138.09 is a 10-page section of the statue addressing “pre-computed loans;” it requires licensing for business charging interest greater than 18percent.

Interest Rate and Fee Caps: §138.04 sets the interest rate, except where otherwiseestablished by statute, at 5 percent. §138.041 sets rates for state chartered banks,credit unions, and savings banks “at a rate prescribed for federally chartered banks,credit unions, and mutual savings banks, respectively, notwithstanding any otherstatute.” §138.05 states that “except as authorized by other statute, no person shallcollect interest greater than: (a) at the rate of 12 percent, computed upon thedeclining principal balance of the loan or forbearance; with respect to loans orforbearance repayable in substantially equal weekly or monthly installments and theface amount of which includes predetermined interest charges, at the rate of 6percent, computed on that portion of the original principal amount of any such loan orforbearance, not including interest charges, for the time of such loan or forbearance,disregarding part payments and the dates thereof; and with respect to loans orforbearance repayable in installments other than the type described in (b), the amountof interest may be predetermined at the rate set forth in (a) at the time the loan ismade on the basis of the agreed rate of interest and principal balances agreed to beoutstanding and stated in the loan or contract as an addition to the principal …” Thestatute addresess prepayment requirements. The statute does not apply to loansover $150,000 (except loans secured by a dwelling which is the principal residence ofthe borrower). For licensed lenders, §138.09 (7)(b)(2m) allows interest rates up to 23percent per year or a rate 6 percent above the rate for 2 year treasury notes.

Loan Terms: §§138.051 and 052 address prepayment refunds of interest for residentialmortgage loans. §138.052 requires that the lender respond to the borrower’s inquiryabout the loan within 15 days, and consider the loan payment made on the date acheck to be “physically received.” §138.053 addresses loans secured by an owner-

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occupied residential property, and limits a lender’s ability to increase a contract rate ofinterest. §138.055 contains requirements for variable rate contracts, with specificlimitations on such contracts when secured by an owner-occupied residential property.

Disclosures: §138.05 requires disclosures for loans exceeding 10 percent interest.§138.053 (2) requires that loans secured by owner-occupied residential propertydisclose if the loan is subject to interest adjustments, and requires a 4-month noticeof the actual adjustment.

Criminal Penalties: Any person in violation of usury statutes is subject to a fine of upto $500 and prison for up to 6 months (§138.06 (2)).

Civil Penalties/Enforcement: A lender who intentionally violates the provisions relatedto interest adjustments and variable rate contracts is liable to the borrower for allexcess interest collected, plus interest thereon at 5 percent, as well as actualdamages (§138.057). If an excessive interest rate has been charged, a borrower mayrecover in an action the amount of interest, principal and charges paid, but not morethan $2,000 in principal (§ 138.06 (3)). If the lender violates the disclosurerequirements, the lender is liable for an amount equal to all interest paid on the loan,plus attorney fees (§138.06 (4)).


Applicability of State UDAP: §100.18 covers: 1) credit transactions; and 2) theplaintiff’s entitlement to actual damages; and 3) attorney fees.

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Wyoming Uniform Consumer Credit Code, Credit SalesCitation: Wyo. Stat. §§40-14-101 to 636

Applicability: The purposes of the act include: “simplifying, clarifying, and modernizingthe law governing retail installment sales, consumer credit, small loans, and usury;”protecting consumers from unfair practices by some suppliers of consumer credit; and“conforming the regulation of consumer credit to the policies of the federal ConsumerCredit Protection Act” (§40-14-102).

Exemptions: None of the exclusions apply to consumer home improvement financing(§40-14-121).

Interest Rate and Fee Caps: §40-14-212 sets maximum charges for credit sales ofunder $50,000, at the greater of (a) the total of 36 percent on that part of the unpaidbalance which is less than $1,000, and 21 percent on the remainder, or (b) 21 percent“on that part of the unpaid balances of the amount financed.” For credit sales greaterthan $50,000, any amount specified in the contract is allowed. §40-14-213 allowsspecific additional charges, including charges for official fees and taxes, charges forinsurance and charges for other benefits conferred on the buyer if the benefits are ofvalue. §40-14-214 allows for delinquency charges. §40-14-215 allows for deferralcharges. §§40-14-216 to 218 provide for credit service charges on refinancing,consolidation, and revolving loan accounts.

Loan Terms: §40-14-220 provides the right to prepay. §40-14-221 provides for rebatesupon prepayment. If any scheduled loan payment is more than 2 times any otherpayment, the buyer has the right to refinance the amount of that payment at any timeit is due if the seller is still offering that type of credit (§40-14-239). §40-14-241 allowsa seller to take a security interest in the property sold or goods upon which the workis to be performed. A lender cannot take security interest in property if the property isnot worth more than $1,000, and a lender cannot take security interest in any goods ifthe goods are worth less than $300.

Disclosures: §§40-14-222 to 225 govern disclosures and advertising (minimalrequirements). Where applicable, the creditor must clearly disclose the debtor’s rightto rescind (§40-14-523).

Prohibited Acts: A seller may not use multiple agreements to get around the servicecharge limitations (§40-14-236). An agreement may not authorize a confession ofjudgment (§40-14-249).

Criminal Penalties: Violations of the act are misdemeanors (§§40-14-540 and 541).

Civil Penalties/Enforcement: §§40-14-501 to 524 establish the civil penalties forviolations (§40-14-503), restrictions on deficiency judgments (under §507 prohibitions),extortionate extensions of credit, and penalties for violations of the loan or creditrequirements (§521). §40-14-522 sets forth the penalties for violations of thedisclosure requirements of the act, with failure to disclose subjecting the lender toliability for twice the amount of the credit service charge up to $1,000, and costs andattorney fees. The section allows a creditor to correct a violation. The debtor has theright to rescind a consumer credit sale or consumer loan with respect to which thereis a security interest is or will be retained in a consumer’s primary dwelling within 3business days of the transaction (§40-14-523).


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Applicability of State UDAP: Yes. §40-12-101, et seq. is broad, but limited to knowingviolations. A plaintiff can be awarded actual damages and attorney fees.

Special Assignee Provisions: An assignee takes the note subject to any defenses,unless the assignee gives the buyer notice of the assignment which discloses that thebuyer must inform the assignee in writing within 45 days of any claim he may haveagainst the seller (§40-14-238). A buyer is entitled to continue to pay the seller untilhe receives notification of an assignment (§40-14-246). §40-14-522 makes anassignee liable “where the violation is apparent on the face of the instrument unlessthe assignment is involuntary.”

Other: §40-14-251 provides standard home solicitation protections and disclosurerequirements. §40-14-401 discusses: 1) insurance provided for consumer credit sales;2) allowable insurance charges; 3) requirements for refund or credit of a paid insurancepolicy (if loan is prepaid); and 4) consumer credit, property and liability insurance.

Wyoming Uniform Consumer Credit Code, LoansCitation: Wyo. Stat. §§14, 40-14-101 to 636

Applicability: The purposes of the act include: “simplifying, clarifying, and modernizingthe law governing retail installment sales, consumer credit, small loans, and usury;”protecting consumers from unfair practices by some suppliers of consumer credit; and“conforming the regulation of consumer credit to the policies of the federal ConsumerCredit Protection Act” (§40-14-102). Article 3 defines “consumer loans” as loansincurred primarily for personal, family, or household purposes, and the principal doesnot exceed $50,000, or is secured by an interest in land which is the principalresidence of the debtor. The above provision does not apply if the land securing theloan is “substantial in relation to the amount of the loan,” and the finance charge isless than 18 percent.

Exemptions: None of the exclusions apply to consumer home improvement financing(§40-14-121).

Licensing Requirements: Yes (for supervised lenders). §§40-3-501 et seq.

Interest Rate and Fee Caps: If the loan is other than a supervised loan, then themaximum interest is 10 percent of the principal (§40-14-310). Additional charges maybe added (§40-14-311). §40-14-312 provides for delinquency charges. §40-14-313provides for deferral charges. §40-14-314 provides for loan finance charge onrefinancing. §40-14-315 provides for loan finance charge on consolidation. Under asupervised loan (§§40-14-341 to 353), a supervised lender may charge for a loan up to$50,000, 36 percent for the first $1,000, or 21 percent thereafter; or for a loan over$50,000, any amount agreed to.

Disclosures: §40-14-320 requires certain disclosures for consumer loans, including astatement of closing costs. §40-14-322 requires the disclosure of the rate of charge.Where applicable, the creditor must clearly disclose the debtor’s right to rescind (§40-14-523).

Prohibited Acts: Violations of the act are prohibited.

Criminal Penalties: Violations of the act are misdemeanors (§§40-14-540 and 541).

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Civil Penalties/Enforcement: §§40-14-501 to 524 set forth the civil penalties forviolations, including under §40-14-503, restrictions on deficiency judgments, under507 prohibitions on extortionate extensions of credit, and under 521, penalties forviolations of the loan or credit requirements. §40-14-522 establishes the penalties forviolations of the disclosure requirements of the act, with failure to disclose subjectingthe lender to liability for twice the amount of the credit service charge up to $1000,and costs and attorney fees. The act allows the creditor to correct the violation. Thedebtor has the right to rescind a consumer credit sale or consumer loan with respectto which there is a security interest is or will be retained in a consumer’s primarydwelling within 3 business days of the transaction (§40-14-523).

Private Right of Action: Yes. §40-14-521

Applicability of State UDAP: Yes. §§40-12-101, et seq. are broad, but are limited toknowing violations. A plaintiff can be awarded actual damages and attorney fees.

Special Assignee Provisions: §40-14-337 authorizes the debtor to pay the originalcreditor until he receives notice of an assignment.

Other: Article 4 sets forth requirements for insurance, including when allowed,consumer credit insurance, and property and liability insurance.

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©2000. AARP.

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