SB REFERENCE TITLE: home loans; prohibited activities. State of Arizona Senate Forty-fifth Legislature Second Regular Session 2002

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1 PLEASE NOTE: In most BUT NOT ALL instances, the page and line numbering of bills on this web site correspond to the page and line numbering of the official printed version of the bills. REFERENCE TITLE: home loans; prohibited activities. State of Arizona Senate Forty-fifth Legislature Second Regular Session 0 SB Introduced by Senators Valadez, Hartley, Lopez J; Representative Clark: Senators Cummiskey, Guenther, Jackson, Mitchell, Rios, Yrun; Representative Tom AN ACT AMENDING TITLE, ARIZONA REVISED STATUTES, BY ADDING CHAPTER ; RELATING TO HOME LOANS. (TEXT OF BILL BEGINS ON NEXT PAGE) - i -

2 SB Be it enacted by the Legislature of the State of Arizona: Section. Title, Arizona Revised Statutes, is amended by adding chapter, to read: CHAPTER HOME LOANS ARTICLE. GENERAL PROVISIONS -0. Definitions IN THIS CHAPTER, UNLESS THE CONTEXT OTHERWISE REQUIRES:. "AFFILIATE" MEANS ANY COMPANY THAT CONTROLS, IS CONTROLLED BY OR IS UNDER COMMON CONTROL WITH ANOTHER COMPANY AS SET FORTH IN THE BANK HOLDING COMPANY ACT OF (0 STAT. ; UNITED STATES CODE SECTIONS THROUGH 0).. "BONA FIDE DISCOUNT POINTS" MEANS LOAN DISCOUNT POINTS TO WHICH ALL OF THE FOLLOWING APPLY: (a) THE BORROWER KNOWINGLY PAYS THE DISCOUNT POINTS FOR THE EXPRESS PURPOSE OF LOWERING THE INTEREST RATE ON A HOME LOAN. (b) THE DISCOUNT POINTS DO IN FACT REDUCE THE INTEREST RATE OR THE TIME PRICE DIFFERENTIAL. (c) THE REDUCTION IN THE INTEREST RATE REDUCES THE INTEREST CHARGED SO THAT THE BORROWER S DOLLAR AMOUNT OF INTEREST SAVINGS OVER THE FIRST FOUR YEARS OF THE LOAN IS EQUAL TO OR GREATER THAN THE DOLLAR AMOUNT OF THE LOAN DISCOUNT POINTS PAID BY THE BORROWER.. "BORROWER" MEANS ANY NATURAL PERSON WHO IS OBLIGATED TO REPAY A HOME LOAN, INCLUDING A CO-BORROWER, COSIGNER OR GUARANTOR.. "CREDITOR" MEANS A PERSON WHO EXTENDS A HOME LOAN THAT IS SUBJECT TO A FINANCE CHARGE OR THAT, PURSUANT TO A WRITTEN AGREEMENT, IS PAYABLE IN MORE THAN FOUR INSTALLMENTS AND TO WHOM THE OBLIGATION IS PAYABLE AT ANY TIME.. "HIGH COST HOME LOAN" MEANS A HOME LOAN THAT EQUALS OR EXCEEDS THE RATE THRESHOLD OR THE POINTS AND FEES THRESHOLD AS CALCULATED PURSUANT TO SECTION -0.. "HOME LOAN" MEANS A LOAN, INCLUDING AN OPEN-END CREDIT PLAN, OTHER THAN A REVERSE MORTGAGE, FOR WHICH THE TOTAL LOAN AMOUNT DOES NOT EXCEED THE CONFORMING LOAN SIZE LIMIT FOR A SINGLE FAMILY DWELLING AS ESTABLISHED BY THE FEDERAL NATIONAL MORTGAGE ASSOCIATION AND THAT IS SECURED BY EITHER OF THE FOLLOWING: (a) A MORTGAGE OR DEED OF TRUST ON REAL ESTATE IN THIS STATE ON WHICH IS LOCATED A STRUCTURE THAT IS DESIGNED PRINCIPALLY FOR THE OCCUPANCY OF FROM ONE TO FOUR FAMILIES AND THAT IS OCCUPIED BY A BORROWER AS THE BORROWER S PRINCIPAL DWELLING. (b) A SECURITY INTEREST ON A MANUFACTURED HOME THAT IS OCCUPIED BY A BORROWER AS THE BORROWER S PRINCIPAL DWELLING.. "RATE" MEANS THE INTEREST RATE CHARGED ON A HOME LOAN BASED ON AN ANNUAL SIMPLE INTEREST YIELD. - -

3 SB "RESIDENTIAL CONTRACTOR" HAS THE SAME MEANING AS PRESCRIBED IN SECTION -0.. "REVERSE MORTGAGE" MEANS AN NONRECOURSE CONSUMER CREDIT OBLIGATION IN WHICH BOTH OF THE FOLLOWING ARE TRUE: (a) A MORTGAGE, DEED OF TRUST OR EQUIVALENT CONSENSUAL SECURITY INTEREST THAT SECURES ONE OR MORE ADVANCES IS CREATED IN THE BORROWER S PRINCIPAL DWELLING. (b) EXCEPT IN THE CASE OF DEFAULT, ANY PRINCIPAL, INTEREST OR SHARED APPRECIATION OR EQUITY IS DUE AND PAYABLE ONLY AFTER ONE OF THE FOLLOWING OCCURS: (i) THE BORROWER DIES. (ii) THE DWELLING IS TRANSFERRED. (iii) THE BORROWER CEASES TO OCCUPY THE DWELLING AS A PRINCIPAL DWELLING. 0. "SPECIAL MORTGAGE" MEANS A HOME LOAN THAT IS ORIGINATED, SUBSIDIZED OR GUARANTEED BY OR THROUGH A STATE, LOCAL OR TRIBAL GOVERNMENT OR A NONPROFIT ORGANIZATION AND THAT HAS SPECIAL LOW COST CHARACTERISTICS, INCLUDING: (a) AN INTEREST RATE OF ZERO. (b) A PROVISION FOR FORGIVING THE HOME LOAN. (c) NONSTANDARD PAYMENT TERMS THAT ARE BENEFICIAL TO THE BORROWER, INCLUDING PAYMENTS THAT ARE LIMITED TO A PERCENTAGE OF THE BORROWER S INCOME OR PAYMENTS THAT VARY WITH THE BORROWER S INCOME.. "TOTAL LOAN AMOUNT" MEANS THE PRINCIPAL OF THE LOAN LESS ANY POINTS AND FEES INCLUDED IN THE PRINCIPAL OR, IF THE LOAN IS AN OPEN-ENDED LOAN, THE TOTAL LINE OF CREDIT ALLOWED UNDER THE LOAN LESS ANY POINTS AND FEES INCLUDED IN THE TOTAL LINE OF CREDIT. -0. Definition of points and fees; open-ended loans A. IN THIS CHAPTER, UNLESS THE CONTEXT OTHERWISE REQUIRES, "POINTS AND FEES" MEANS:. SERVICE, TRANSACTION, ACTIVITY AND CARRYING CHARGES.. POINTS, LOAN FEES, ASSUMPTION FEES, FINDER S FEES AND SIMILAR CHARGES.. APPRAISAL, INVESTIGATION AND CREDIT REPORT FEES.. PREMIUMS OR OTHER CHARGES FOR ANY GUARANTEE OR INSURANCE PROTECTING THE CREDITOR AGAINST THE BORROWER S DEFAULT OR OTHER CREDIT LOSS.. CHARGES THAT ARE IMPOSED ON A CREDITOR BY ANOTHER PERSON FOR PURCHASING OR ACCEPTING A BORROWER'S OBLIGATION, IF THE BORROWER IS REQUIRED TO PAY THE CHARGES IN CASH, AS AN ADDITION TO THE OBLIGATION, OR AS A DEDUCTION FROM THE PROCEEDS OF THE OBLIGATION.. PREMIUMS OR OTHER CHARGES THAT ARE FINANCED BY THE CREDITOR, DIRECTLY OR INDIRECTLY, FOR CREDIT LIFE, CREDIT DISABILITY, CREDIT UNEMPLOYMENT, CREDIT PROPERTY OR OTHER CREDIT LIFE OR HEALTH INSURANCE. - -

4 SB PREMIUMS OR OTHER CHARGES FOR INSURANCE AGAINST LOSS OF OR DAMAGE TO PROPERTY, OR AGAINST LIABILITY ARISING OUT OF THE OWNERSHIP OR USE PROPERTY, THAT IS WRITTEN IN CONNECTION WITH A HOME LOAN.. DISCOUNTS FOR THE PURPOSE OF INDUCING PAYMENT BY MEANS OTHER THAN THE USE OF CREDIT.. CHARGES OR PREMIUMS THAT ARE FINANCED BY THE CREDITOR AND THAT ARE PAID FOR DEBT CANCELLATION OR SUSPENSION COVERAGE. 0. ANY OF THE FOLLOWING FEES IF THE CREDITOR RECEIVES DIRECT OR INDIRECT COMPENSATION IN CONNECTION WITH THE CHARGE OR THE CHARGE IS PAID TO AN AFFILIATE OF THE CREDITOR: (a) FEES FOR TITLE EXAMINATION, ABSTRACT OF TITLE, TITLE INSURANCE AND PROPERTY SURVEY. (b) FEES FOR PREPARING LOAN-RELATED DOCUMENTS AND RECONVEYANCE OR SETTLEMENT DOCUMENTS. (c) NOTARY AND CREDIT REPORT FEES.. ALL COMPENSATION PAID DIRECTLY OR INDIRECTLY TO A MORTGAGE BROKER, INCLUDING A BROKER THAT ORIGINATES A HOME LOAN IN ITS OWN NAME THROUGH AN ADVANCE OF MONIES AND SUBSEQUENTLY ASSIGNS THE HOME LOAN TO THE PERSON ADVANCING THE MONIES.. THE MAXIMUM PREPAYMENT PENALTIES OR FEES THAT MAY BE CHARGED UNDER THE LOAN AGREEMENT. B. POINTS AND FEES DOES NOT INCLUDE:. TAXES.. FILING FEES.. RECORDING AND OTHER FEES ACTUALLY PAID TO PUBLIC OFFICIALS FOR DETERMINING THE EXISTENCE OF OR FOR PERFECTING, RELEASING OR SATISFYING A SECURITY INTEREST.. THE FOLLOWING CHARGES PAID TO A PERSON OTHER THAN A CREDITOR, AN AFFILIATE OF A CREDITOR, A MORTGAGE BROKER OR AN AFFILIATE OF A MORTGAGE BROKER: (a) FEES FOR FLOOD CERTIFICATION OR PEST INFESTATION DETERMINATION. (b) APPRAISAL FEES, CREDIT REPORT FEES, SURVEY FEES AND FEES FOR INSPECTION PERFORMED BEFORE THE LOAN CLOSING. (c) ATTORNEY FEES. (d) TITLE INSURANCE PREMIUMS. (e) FIRE INSURANCE OR FLOOD INSURANCE PREMIUMS IF EITHER OF THE FOLLOWING IS TRUE: (i) THE INSURANCE COVERAGE MAY BE OBTAINED FROM A PERSON OF THE BORROWER S CHOICE AND THIS FACT IS DISCLOSED TO THE BORROWER. (ii) THE INSURANCE COVERAGE IS OBTAINED THROUGH THE CREDITOR AND THE PREMIUM FOR THE INITIAL TERM OF INSURANCE COVERAGE IS DISCLOSED. C. FOR OPEN-ENDED LOANS, THE POINTS AND FEES ARE CALCULATED BY ADDING THE TOTAL FEES CHARGED AT CLOSING PLUS THE MAXIMUM ADDITIONAL FEES THAT MAY BE CHARGED PURSUANT TO THE LOAN AGREEMENT DURING THE TERM OF THE LOAN. - -

5 SB D. FOR THE PURPOSES OF SUBSECTION A, PARAGRAPHS AND, INSURANCE PREMIUMS THAT ARE CALCULATED AND PAID ON A MONTHLY BASIS ARE NOT FINANCED BY THE CREDITOR. -0. Rate threshold; points and fees threshold A. THE RATE THRESHOLD IS WHEN:. FOR A FIRST LIEN MORTGAGE, THE TRIGGER RATE EQUALS SIX PERCENTAGE POINTS ABOVE THE WEEKLY AVERAGE YIELD ON FIVE YEAR UNITED STATES TREASURY SECURITIES.. FOR A SUBORDINATE MORTGAGE LIEN OR A MORTGAGE SECURED SOLELY BY A SECURITY INTEREST IN A MANUFACTURED HOME, THE TRIGGER RATE EQUALS EIGHT PERCENTAGE POINTS ABOVE THE WEEKLY AVERAGE YIELD ON UNITED STATES TREASURY SECURITIES. B. THE TRIGGER RATE IS CALCULATED AS FOLLOWS:. FOR FIXED RATE LOANS, IT IS THE RATE AS OF THE DATE OF CLOSING.. FOR LOANS ON WHICH THE INTEREST RATE VARIES BASED ON AN INDEX, IT IS THE SUM OF THE INDEX RATE AT THE DATE OF CLOSING PLUS THE MAXIMUM MARGIN PERMITTED AT ANY TIME UNDER THE LOAN AGREEMENT.. FOR OTHER LOANS ON WHICH THE RATE MAY VARY, IT IS THE MAXIMUM RATE THAT MAY BE CHARGED DURING THE TERM OF THE LOAN. C. THE POINTS AND FEES THRESHOLD IS WHEN:. FOR LOANS WITH TOTAL LOAN AMOUNTS OF THIRTY THOUSAND DOLLARS OR MORE, THE TOTAL POINTS AND FEES PAID BY THE BORROWER AT OR BEFORE CLOSING EQUALS THREE PER CENT OF THE TOTAL LOAN AMOUNT.. FOR LOANS WITH TOTAL LOAN AMOUNTS OF LESS THAN THIRTY THOUSAND DOLLARS, THE TOTAL POINTS AND FEES PAID BY THE BORROWER AT OR BEFORE CLOSING EQUALS THE LESSER OF NINE HUNDRED DOLLARS OR SIX PER CENT OF THE TOTAL LOAN AMOUNT. D. IN THE CALCULATION OF POINTS AND FEES FOR THE PURPOSES OF SUBSECTION C, BONA FIDE DISCOUNT POINTS PAID ON LOANS WITH INTEREST RATES THAT ARE NOT MORE THAN FOUR PERCENTAGE POINTS ABOVE THE WEEKLY AVERAGE YIELD ON FIVE YEAR UNITED STATES TREASURY SECURITIES SHALL NOT BE INCLUDED. ARTICLE. HOME LOANS -. Financing of insurance A. A CREDITOR SHALL NOT FINANCE, DIRECTLY OR INDIRECTLY, ANY OF THE FOLLOWING:. CREDIT LIFE, CREDIT DISABILITY, CREDIT PROPERTY OR CREDIT UNEMPLOYMENT INSURANCE.. OTHER LIFE OR HEALTH INSURANCE PREMIUMS.. PAYMENTS FOR DEBT CANCELLATION OR SUSPENSION AGREEMENTS. B. INSURANCE PREMIUMS THAT ARE NOT INCLUDED IN THE HOME LOAN PRINCIPAL AND THAT ARE CALCULATED AND PAID ON A MONTHLY BASIS ARE NOT FINANCED BY THE CREDITOR FOR THE PURPOSES OF THIS SECTION. -. Late fees; balance fees; payoff balance A. A CREDITOR SHALL NOT CHARGE A LATE PAYMENT FEE: - -

6 SB THAT IS MORE THAN FOUR PER CENT OF THE AMOUNT OF THE PAYMENT THAT IS PAST DUE.. FOR A PAYMENT THAT IS NOT PAST DUE FIFTEEN OR MORE DAYS.. MORE THAN ONCE WITH RESPECT TO A SINGLE LATE PAYMENT. IF A LATE PAYMENT CHARGE IS DEDUCTED FROM A PAYMENT SO THAT THE DEDUCTION CAUSES A DEFAULT ON A SUBSEQUENT PAYMENT, A LATE PAYMENT CHARGE SHALL NOT BE ASSESSED FOR THE DEFAULT ON THE SUBSEQUENT PAYMENT. IF A LATE PAYMENT CHARGE HAS BEEN ASSESSED WITH RESPECT TO A PARTICULAR LATE PAYMENT, A LATE PAYMENT CHARGE SHALL NOT BE ASSESSED WITH RESPECT TO ANY FUTURE PAYMENT THAT WOULD HAVE BEEN TIMELY AND SUFFICIENT EXCEPT FOR THE PREVIOUS DEFAULT.. UNLESS THE CREDITOR NOTIFIES THE BORROWER WITHIN FORTY-FIVE DAYS AFTER THE DATE THE PAYMENT WAS DUE THAT A LATE PAYMENT CHARGE HAS BEEN ASSESSED FOR A PARTICULAR PAYMENT. A LATE PAYMENT CHARGE SHALL NOT BE COLLECTED IF THE BORROWER INFORMS THE CREDITOR THAT NONPAYMENT OF A PAYMENT IS IN DISPUTE AND PRESENTS PROOF OF PAYMENT WITHIN FORTY-FIVE DAYS OF RECEIPT OF THE CREDITOR S NOTICE OF THE LATE CHARGE. B. A CREDITOR SHALL NOT CHARGE A FEE:. FOR INFORMING A BORROWER ABOUT OR TRANSMITTING TO ANY PERSON THE BALANCE DUE TO PAY OFF A HOME LOAN.. TO PROVIDE A RELEASE ON PREPAYMENT. C. A CREDITOR SHALL PROVIDE A PAYOFF BALANCE NOT MORE THAN SEVEN BUSINESS DAYS AFTER THE PAYOFF BALANCE HAS BEEN REQUESTED. ARTICLE. HIGH COST HOME LOANS -. Financing points and fees A CREDITOR MAKING A HIGH COST HOME LOAN SHALL NOT DIRECTLY OR INDIRECTLY FINANCE MORE THAN THREE PER CENT OF THE TOTAL LOAN AMOUNT IN POINTS AND FEES. -. Prepayment penalty limitation A. A HIGH COST HOME LOAN AGREEMENT SHALL NOT INCLUDE AND A BORROWER OF A HIGH COST HOME LOAN SHALL NOT BE CHARGED A PREPAYMENT PENALTY THAT EXCEEDS:. IN THE FIRST TWELVE MONTHS AFTER THE LOAN CLOSING, TWO PER CENT OF THE LOAN AMOUNT THAT IS PREPAID.. IN THE SECOND TWELVE MONTHS AFTER THE LOAN CLOSING, ONE PER CENT OF THE LOAN AMOUNT THAT IS PREPAID. B. A CREDITOR SHALL NOT REQUIRE A PREPAYMENT PENALTY TO BE PAID TO THE CREDITOR, IF THE CREDITOR REFINANCES A BORROWER S HOME LOAN FROM THE CREDITOR OR AN AFFILIATE OF THE CREDITOR WITH A HIGH COST HOME LOAN. -. Balloon payments; exception A HIGH COST HOME LOAN AGREEMENT SHALL NOT CONTAIN A SCHEDULED PAYMENT THAT IS MORE THAN TWICE AS LARGE AS THE AVERAGE OF THE EARLIER SCHEDULED PAYMENTS. THIS SECTION DOES NOT APPLY IF THE PAYMENT SCHEDULE IS ADJUSTED TO THE SEASONAL OR IRREGULAR INCOME OF THE BORROWER. - -

7 SB Negative amortization prohibition A HIGH COST HOME LOAN AGREEMENT SHALL NOT INCLUDE PAYMENT TERMS UNDER WHICH THE OUTSTANDING PRINCIPAL BALANCE WILL INCREASE AT ANY TIME OVER THE COURSE OF THE LOAN BECAUSE THE REGULAR PERIODIC PAYMENTS DO NOT COVER THE FULL AMOUNT OF THE INTEREST DUE. -. Refinancing without borrower benefit; definition A. A CREDITOR SHALL NOT MAKE A HIGH COST HOME LOAN IF BOTH OF THE FOLLOWING APPLY:. THE PRIMARY TANGIBLE BENEFIT TO THE BORROWER IS A REDUCTION FROM THE INTEREST RATE ON THE DEBT SATISFIED OR REFINANCED IN CONNECTION WITH THE HIGH COST HOME LOAN.. IT WILL TAKE MORE THAN FOUR YEARS FOR THE BORROWER TO RECOUP THE COSTS OF THE POINTS AND FEES AND OTHER CLOSING COSTS THROUGH SAVINGS FROM THE LOWER INTEREST RATE. B. A CREDITOR SHALL NOT REFINANCE A SPECIAL HOME LOAN WITH A HIGH COST HOME LOAN IF, AS A RESULT OF THE REFINANCING, THE BORROWER WILL LOSE ONE OR MORE OF THE BENEFICIAL TERMS. C. IN ADDITION TO THE LIMITATIONS PRESCRIBED IN SUBSECTIONS A AND B, A CREDITOR SHALL NOT MAKE A HIGH COST HOME LOAN IF THE HIGH COST HOME LOAN PAYS OFF ALL OR PART OF AN EXISTING HOME LOAN AND THE BORROWER DOES NOT RECEIVE A REASONABLE AND TANGIBLE NET BENEFIT FROM THE NEW HIGH COST HOME LOAN AFTER CONSIDERING THE TERMS OF THE NEW LOAN AND THE REFINANCED DEBT, THE COST OF THE HIGH COST HOME LOAN AND THE BORROWER S CIRCUMSTANCES, INCLUDING WHETHER THE LOAN IS FOR A BONA FIDE PERSONAL FINANCIAL EMERGENCY. D. FOR THE PURPOSES OF THIS SECTION, "NONSTANDARD PAYMENT TERMS" INCLUDES PAYMENTS THAT VARY WITH THE LEVEL OF THE BORROWER S INCOME OR THAT ARE LIMITED TO A PERCENTAGE OF THE BORROWER S INCOME OR TO ARRANGEMENTS IN WHICH NO PAYMENTS ARE REQUIRED UNDER SPECIFIED CONDITIONS. -. Default; interest rate increase; exception A HIGH COST HOME LOAN AGREEMENT SHALL NOT CONTAIN ANY PROVISION THAT INCREASES THE INTEREST RATE AFTER A DEFAULT BY THE BORROWER. THIS SECTION DOES NOT APPLY TO INTEREST CHANGES IN A VARIABLE RATE LOAN IF THE INCREASE IS OTHERWISE CONSISTENT WITH THE LOAN AGREEMENT AND THE EVENT OF DEFAULT OR THE ACCELERATION OF THE INDEBTEDNESS DOES NOT TRIGGER THE CHANGE IN THE INTEREST RATE. -. Advance payments A HIGH COST HOME LOAN AGREEMENT SHALL NOT REQUIRE THAT MORE THAN TWO PERIODIC PAYMENTS BE CONSOLIDATED AND PAID IN ADVANCE FROM THE LOAN PROCEEDS PROVIDED TO THE BORROWER. -. Mandatory arbitration prohibition A HIGH COST HOME LOAN AGREEMENT SHALL NOT BE SUBJECT TO A MANDATORY ARBITRATION CLAUSE THAT LIMITS THE RIGHT OF A BORROWER TO SEEK RELIEF THROUGH THE JUDICIAL PROCESS FOR ANY CLAIMS OR DEFENSES THE BORROWER MAY HAVE AGAINST THE CREDITOR, BROKER OR OTHER PARTY INVOLVED IN THE LOAN TRANSACTION. - -

8 SB Repayment ability A. A CREDITOR SHALL NOT MAKE A HIGH COST HOME LOAN WITHOUT A REASONABLE BASIS TO BELIEVE THAT THE BORROWER WILL REPAY THE LOAN AS PAYMENTS BECOME DUE. THIS DETERMINATION SHALL BE BASED ON THE BORROWER S CURRENT AND EXPECTED INCOME, CURRENT OBLIGATIONS, EMPLOYMENT STATUS AND OTHER FINANCIAL RESOURCES, OTHER THAN THE BORROWER'S EQUITY IN THE HOME BEING PURCHASED. B. A BORROWER IS PRESUMED TO BE ABLE TO MAKE THE SCHEDULED PAYMENTS IF, AT THE TIME THE LOAN IS MADE OR AT THE TIME OF THE FIRST RATE ADJUSTMENT IF A LOWER INTEREST RATE IS CHARGED FOR THE INITIAL MONTHS OF THE LOAN:. THE BORROWER'S SCHEDULED MONTHLY PAYMENTS ON THE LOAN, INCLUDING PRINCIPAL, INTEREST, TAXES, INSURANCE AND ASSESSMENTS, COMBINED WITH THE SCHEDULED PAYMENTS FOR ALL THE OTHER DEBT OF THE BORROWER, DO NOT EXCEED FIFTY PER CENT OF THE BORROWER'S DOCUMENTED AND VERIFIED MONTHLY GROSS INCOME.. THE BORROWER HAS SUFFICIENT RESIDUAL INCOME, AS DEFINED IN CODE OF FEDERAL REGULATIONS SECTION.(e)(0), TO PAY ESSENTIAL MONTHLY EXPENSES AFTER PAYING THE PAYMENTS DESCRIBED IN PARAGRAPH. -0. Homeownership counseling A CREDITOR SHALL NOT MAKE A HIGH COST HOME LOAN TO A BORROWER UNLESS THE CREDITOR HAS RECEIVED A CERTIFICATION THAT THE BORROWER HAS RECEIVED COUNSELING ON THE ADVISABILITY OF THE LOAN TRANSACTION FROM AN INDEPENDENT HOUSING OR CREDIT COUNSELOR THAT IS APPROVED BY THE UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT OR THE ARIZONA HOUSING AUTHORITY. -. Modification or deferral fees; prohibition A CREDITOR SHALL NOT CHARGE A BORROWER ANY FEE OR OTHER CHARGE TO MODIFY, RENEW, EXTEND OR AMEND A HIGH COST HOME LOAN OR TO DEFER ANY PAYMENT DUE UNDER THE LOAN. -. Prohibition on payments directly to residential contractor A CREDITOR WHO MAKES A HIGH COST HOME LOAN SHALL NOT PAY PROCEEDS OF THE LOAN TO A RESIDENTIAL CONTRACTOR EXCEPT:. BY AN INSTRUMENT THAT IS PAYABLE SOLELY TO THE BORROWER.. AT THE ELECTION OF THE BORROWER, THROUGH A THIRD PARTY ESCROW AGENT IN ACCORDANCE WITH A WRITTEN AGREEMENT THAT IS SIGNED BY THE BORROWER AND THE RESIDENTIAL CONTRACTOR BEFORE THE DISBURSEMENT. -. Prohibition on recommending default A CREDITOR SHALL NOT RECOMMEND OR ENCOURAGE A BORROWER TO DEFAULT ON AN EXISTING LOAN OR OTHER DEBT BEFORE AND IN CONNECTION WITH THE CLOSING OF A HIGH COST HOME LOAN THAT REFINANCES A PART OR ALL OF THE EXISTING LOAN OR DEBT. -. Lowest cost category of loans A. A CREDITOR WHO MAKES A HIGH COST HOME LOAN SHALL NOT DIRECT A BORROWER TO A LOAN WITH HIGHER COSTS THAN THE LOWEST COST CATEGORY OF LOANS FOR WHICH THE BORROWER COULD QUALIFY WITH THAT CREDITOR OR ITS AFFILIATES. - -

9 SB B. A BROKER WHO ARRANGES A HIGH COST HOME LOAN SHALL NOT DIRECT A BORROWER TO A LOAN WITH HIGHER COSTS THAN THE LOWEST COST ARRAY OF LOANS AVAILABLE TO THAT BORROWER FROM THE LENDERS WITH WHOM THE BROKER REGULARLY DOES BUSINESS. -. Fiduciary duty of brokers A BROKER THAT ARRANGES A HIGH COST HOME LOAN HAS A FIDUCIARY DUTY TO THE BORROWER FOR WHOM THE BROKER ARRANGES THE HIGH COST HOME LOAN, REGARDLESS OF WHAT RESPONSIBILITIES THE BROKER MAY HAVE TO OTHER PARTIES TO THE LOAN. -. Acceleration provision; exception A. A HIGH COST HOME LOAN AGREEMENT SHALL NOT CONTAIN A PROVISION THAT ALLOWS THE CREDITOR, IN ITS SOLE DISCRETION, TO ACCELERATE THE INDEBTEDNESS. B. THIS SECTION DOES NOT PROHIBIT THE ACCELERATION OF INDEBTEDNESS IN GOOD FAITH DUE TO THE BORROWER S FAILURE TO ABIDE BY MATERIAL TERMS OF THE LOAN AGREEMENT. ARTICLE. ENFORCEMENT AND REMEDIES -. Consumer fraud; damages and costs; equitable relief A. A VIOLATION OF THIS CHAPTER CONSTITUTES CONSUMER FRAUD AND IS ENFORCEABLE PURSUANT TO TITLE, CHAPTER 0, ARTICLE. B. A PERSON WHO IS FOUND BY A PREPONDERANCE OF THE EVIDENCE TO HAVE VIOLATED THIS CHAPTER IS LIABLE TO THE BORROWER FOR ALL OF THE FOLLOWING:. THE ACTUAL DAMAGES SUSTAINED BY THE BORROWER AS A RESULT OF THE VIOLATION, INCLUDING CONSEQUENTIAL AND SPECIAL DAMAGES.. IF A PERSON INTENTIONALLY OR KNOWINGLY VIOLATES THIS CHAPTER, STATUTORY DAMAGES EQUAL TO THE FINANCE CHARGES PROVIDED IN THE HOME LOAN AGREEMENT PLUS TEN PER CENT OF THE AMOUNT FINANCED. FOR THE PURPOSES OF THIS PARAGRAPH, INTENTIONALLY AND KNOWINGLY HAVE THE SAME MEANINGS AS PRESCRIBED IN SECTION -0.. PUNITIVE DAMAGES IF THE VIOLATION WAS MALICIOUS OR RECKLESS.. REASONABLE COSTS AND ATTORNEY FEES. C. A COURT MAY GRANT INJUNCTIVE, DECLARATORY AND OTHER EQUITABLE RELIEF AS IT DEEMS APPROPRIATE TO ENFORCE COMPLIANCE WITH THIS CHAPTER. -. Liability; void agreements A. IF A CREDITOR OR BROKER INTENTIONALLY VIOLATES THIS CHAPTER:. THE HOME LOAN AGREEMENT IS VOID.. THE CREDITOR HAS NO RIGHT TO COLLECT, RECEIVE OR RETAIN ANY PRINCIPAL, INTEREST OR OTHER CHARGES WITH RESPECT TO THE HOME LOAN.. THE BORROWER MAY RECOVER ANY PAYMENTS MADE UNDER THE AGREEMENT. B. LOAN AGREEMENT TERMS THAT VIOLATE THIS CHAPTER ARE UNENFORCEABLE, AND THE COURT MAY ISSUE AN ORDER TO REFORM ANY TERM TO BRING THE LOAN AGREEMENT INTO COMPLIANCE WITH THIS CHAPTER. -. Defenses; assignees of loans A. A BORROWER MAY ASSERT A VIOLATION OF THIS CHAPTER AS A DEFENSE, BAR OR COUNTERCLAIM TO ANY DEFAULT ACTION, COLLECTION ACTION OR JUDICIAL OR NONJUDICIAL FORECLOSURE ACTION IN CONNECTION WITH A HOME LOAN. - -

10 SB 0 B. ANY PERSON WHO PURCHASES OR IS OTHERWISE ASSIGNED A HOME LOAN IS SUBJECT TO ALL AFFIRMATIVE CLAIMS AND DEFENSES WITH RESPECT TO THE LOAN THAT THE BORROWER COULD ASSERT AGAINST THE CREDITOR OR BROKER OF THE LOAN. -. Correction of unintentional violations; definition A. A CREDITOR WHO FAILS TO COMPLY WITH THIS CHAPTER WHILE ACTING IN GOOD FAITH HAS NOT VIOLATED THIS CHAPTER IF THE CREDITOR ESTABLISHES EITHER OF THE FOLLOWING:. WITHIN THIRTY DAYS AFTER THE LOAN CLOSING AND BEFORE RECEIVING ANY NOTICE FROM THE BORROWER OF THE COMPLIANCE FAILURE, THE CREDITOR HAS MADE APPROPRIATE RESTITUTION TO THE BORROWER AND ADJUSTMENTS TO THE LOAN.. WITHIN SIXTY DAYS AFTER THE LOAN CLOSING AND BEFORE RECEIVING ANY NOTICE FROM THE BORROWER OF THE COMPLIANCE FAILURE: (a) THE COMPLIANCE FAILURE WAS NOT INTENTIONAL AND RESULTED FROM A BONA FIDE ERROR NOTWITHSTANDING THE MAINTENANCE OF PROCEDURES REASONABLY ADAPTED TO AVOID THIS TYPE OF ERROR. (b) THE CREDITOR HAS MADE APPROPRIATE RESTITUTION TO THE BORROWER. (c) THE CREDITOR HAS MADE APPROPRIATE ADJUSTMENTS TO THE LOAN. B. FOR THE PURPOSES OF THIS SECTION, "BONA FIDE ERROR" INCLUDES CLERICAL, CALCULATION, COMPUTER MALFUNCTION, PROGRAMMING AND PRINTING ERRORS. BONA FIDE ERROR DOES NOT INCLUDE AN ERROR OF LEGAL JUDGMENT WITH RESPECT TO A PERSON S OBLIGATIONS UNDER THIS CHAPTER. -. Remedies are cumulative A. THE REMEDIES PROVIDED UNDER THIS CHAPTER ARE CUMULATIVE AND ARE IN ADDITION TO ANY OTHER PROTECTIONS AND REMEDIES THAT ARE OTHERWISE AVAILABLE BY LAW. B. THIS CHAPTER DOES NOT LIMIT THE RIGHTS OF AN INJURED PERSON TO RECOVER DAMAGES OR PURSUE ANY OTHER LEGAL OR EQUITABLE ACTION UNDER ANY OTHER LAW OR LEGAL THEORY. - -

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