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Title XXVI TRADE AND COMMERCE

Chapter 408

previous next Effective - 10 Jul 2012, see footnotebottom

  408.052.  Points prohibited, exception — penalties for illegal points — violation a misdemeanor — default charge authorized, when, exceptions. — 1.  No lender shall charge, require or receive, on any residential real estate loan, any points or other fees of any nature whatsoever, excepting insurance, including insurance for involuntary unemployment coverage, and a one-percent origination fee, whether from the buyer or the seller or any other person, except that the lender may charge bona fide expenses paid by the lender to any other person or entity except to an officer, employee, or director of the lender or to any business in which any officer, employee or director of the lender owns any substantial interest for services actually performed in connection with a loan.  In addition to the foregoing, if the loan is for the construction, repair, or improvement of residential real estate, the lender may charge a fee not to exceed one percent of the loan amount for inspection and disbursement of the proceeds of the loan to third parties.  Notwithstanding the foregoing, the parties may contract for a default charge for any installment not paid in full within fifteen days of its scheduled due date.  The restrictions of this section shall not apply:

  (1)  To any loan which is insured or covered by guarantee made by any department, board, bureau, commission, agency or establishment of the United States, pursuant to the authority of any act of Congress heretofore or hereafter adopted; and

  (2)  To any loan for which an offer or commitment or agreement to purchase has been received from and which is made with the intention of reselling such loan to the Federal Housing Administration, Farmers Home Administration, Federal National Mortgage Association, Government National Mortgage Association, Federal Home Loan Mortgage Corporation, or to any successor to the above-mentioned organizations, to any other state or federal governmental or quasi-governmental organization;

  (3)  To any mortgage broker making loans on manufactured homes or modular units; and

  (4)  Provided that the 1994 reenactment of this section shall not be construed to be action taken in accordance with Public Law 96-221, Section 501(b)(4).  

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Any points or fees received in excess of those permitted under this section shall be returned to the person from whom received upon demand.

  2.  Notwithstanding the language in subsection 1 of this section, a lender may pay to an officer, employee or director of the lender, or to any business in which such person has an interest, bona fide fees for services actually and necessarily performed in good faith in connection with a residential real estate loan, provided:

  (1)  Such services are individually listed by amount and payee on the loan-closing documents; and

  (2)  Such lender may use the preemption of Public Law 96-221, Section 501 with respect to the residential real estate loan in question.  

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When fees charged need not be disclosed in the annual percentage rate required by Title 15, U.S.C. Sections 1601, et seq., and regulations thereunder because such fees are de minimis amounts or for other reasons, such fees need not be included in the annual percentage rate for state examination purposes.

  3.  The lender may charge and collect bona fide fees for services actually and necessarily performed in good faith in connection with a residential real estate loan as provided in subsection 2 of this section; however, the lender's board of directors shall determine whether such bona fide fees shall be paid to the lender or businesses related to the lender in subsection 2 of this section, but may allow current contractual relationships to continue for up to two years.

  4.  If any points or fees are charged, required or received, which are in excess of those permitted by this section, or which are not returned upon demand when required by this section, then the person paying the same points or fees or his or her legal representative may recover twice the amount paid together with costs of the suit and reasonable attorney's fees, provided that the action is brought within five years of such payment.

  5.  Any lender who knowingly violates the provisions of this section is guilty of a class B misdemeanor.

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(L. 1974 2d Ex. Sess. S.B. 1, A.L. 1979 S.B. 305, A.L. 1989 H.B. 615 & 563 merged with S.B. 258, A.L. 1994 S.B. 701, A.L. 2000 S.B. 896, A.L. 2001 H.B. 738 merged with S.B. 186, A.L. 2012 H.B. 1400)

Effective 7-10-12


---- end of effective   10 Jul 2012 ----

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