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Substitute House Bill No. 5073

Public Act No. 02-12

AN ACT CONCERNING PREPAID FINANCE CHARGES.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. Section 3 of public act 01-34 is repealed and the following is substituted in lieu thereof (Effective from passage):

As used in this section and sections 3 to 9, inclusive, of [this act] public act 01-34:

(1) "APR" means the annual percentage rate for the loan calculated according to the provisions of the federal Truth-in-Lending Act, 15 USC Section 1601 et seq. , as from time to time amended, and the regulations promulgated thereunder. For open-end lines of credit, "APR" means the highest corresponding annual percentage rate required to be disclosed under 12 CFR Sections 226. 6(a)(2) and 226. 14(b), as from time to time amended, excluding any maximum rates required to be disclosed or stated pursuant to 12 CFR Sections 226. 6(a)(2) or 226. 30, as from time to time amended. For closed-end loans, "APR" means the annual percentage rate required to be disclosed under 12 CFR Section 226. 18(e), as from time to time amended, excluding any maximum rates required to be disclosed or stated pursuant to 12 CFR Sections 226. 18(f) or 226. 30, as from time to time amended. For purposes of this subdivision, any variable rate calculation shall use an index value in effect within forty-five days prior to consummation;

(2) "Broker" means a person who, for a fee, commission or other valuable consideration, negotiates, solicits, arranges, places or finds a high cost home loan that is to be made by a lender;

(3) "Consummation" means the time that a borrower becomes contractually obligated on a [high cost home] loan or extension of credit;

(4) "High cost home loan" means any loan or extension of credit, including an open-end line of credit but excluding a reverse mortgage transaction, as defined in 12 CFR Section 226. 33, as from time to time amended:

(A) In which the borrower is a natural person;

(B) The proceeds of which are to be used primarily for personal, family or household purposes;

(C) In which the loan is secured by a mortgage upon any interest in one-to-four family residential real property located in this state which is, or, when the loan is made, is intended to be occupied by the borrower as a principal residence; and

(D) In which the APR at consummation will exceed the yield on Treasury securities having comparable periods of maturity to the loan maturity as of the fifteenth day of the month immediately preceding the month in which the application for the loan or extension of credit is received by the lender, by more than the number of percentage points specified in 12 CFR 226. 32(a)(1)(i), as from time to time amended;

(5) "Interim interest" means interest for the period from funding to the start of amortization paid by a borrower at or before consummation of a closed-end loan where such amortization begins sixty-two days or less after funding;

[(5)] (6) "Lender" means any person who originates one or more high cost home loans;

[(6)] (7) "Prepaid finance charge" means any finance charge [imposed as an incident to or a condition of the loan or extension of credit payable by the borrower at or before the closing of the transaction, including, but not limited to, loan fees, points, commissions, broker's fees or commissions, transaction fees or similar finance charges determined in accordance with sections 36a-675 to 36a-685, inclusive, and regulations adopted thereunder, or] determined in accordance with 12 CFR Section 226. 4, as from time to time amended, that is paid separately in cash or by check before or at consummation of a loan or extension of credit or withheld from the proceeds of such transaction at any time, except the term includes any fees or commissions payable to the lender or broker in connection with the sale of credit life, accident, health, disability or unemployment insurance products or unrelated goods or services sold in conjunction with the loan or extension of credit when the cost of such insurance products or goods or services is prepaid with the proceeds of the loan or extension of credit and financed as part of the principal amount of the loan or extension of credit, [but excluding the time-price differential, as such term is used in 12 CFR 226. 32] and excludes premiums, fees and any other amounts paid to a governmental agency, any amounts required to be escrowed by a governmental agency and interim interest;

[(7)] (8) "Prepayment penalty" means any charge or penalty for paying all or part of the principal before the date on which the principal is due and includes computing a refund of unearned interest by a method that is less favorable to the borrower than the actuarial method, as defined by Section 933(d) of the Housing and Community Development Act of 1992, 15 USC 1615(d), as from time to time amended.

Sec. 2. Section 5 of public act 01-34 is repealed and the following is substituted in lieu thereof (Effective from passage):

A high cost home loan shall not provide for or include the following:

(1) For a loan with a term of less than seven years, a payment schedule with regular periodic payments that when aggregated do not fully amortize the outstanding principal balance, except that this limitation does not apply to a loan with maturities of less than one year if the purpose of the loan is a bridge loan, as used in 12 CFR 226. 32, as from time to time amended, connected with the acquisition or construction of a dwelling intended to become the borrower's principal dwelling;

(2) A payment schedule with regular periodic payments that cause the principal balance to increase;

(3) A payment schedule that consolidates more than two periodic payments and pays them in advance from the proceeds, unless such payments are required to be escrowed by a governmental agency;

(4) An increase in the interest rate after default or default charges in excess of five per cent of the amount in default;

(5) A refund calculated by a method less favorable than the actuarial method, as defined by Section 933(d) of the Housing and Community Development Act of 1992, 15 USC 1615(d), as from time to time amended, for rebates of interest arising from a loan acceleration due to default;

(6) A prepayment penalty except as allowed by this subdivision. A high cost home loan may provide for or include a prepayment penalty, including a refund calculated according to the rule of 78s, as such term is used in 12 CFR 226. 32, as from time to time amended, if:

(A) The penalty can be exercised only for the first three years following consummation. No prepayment penalty shall exceed three per cent of the balance prepaid for any payment occurring earlier than one year after consummation of the loan, two per cent of the balance prepaid for any payment occurring between one and two years after consummation of the loan, and one per cent of the balance prepaid for any payment occurring between two and three years after consummation of the loan;

(B) The source of the prepayment funds is not a refinancing by the lender or an affiliate of the lender; and

(C) At consummation, the borrower's total monthly debts, including amounts owed under the high cost home loan, do not exceed fifty per cent of the borrower's monthly gross income, as verified by the borrower's signed financial statement, a credit report and payment records for employment income;

(7) A mandatory arbitration clause or a waiver of participation in a class action; or

(8) A call provision that permits the lender, in its sole discretion, to accelerate the indebtedness. This prohibition shall not apply when repayment of the loan is accelerated by bona fide default, pursuant to a due-on-sale clause provision, or pursuant to another provision of the loan agreement unrelated to the payment schedule including, but not limited to, bankruptcy or receivership.

Sec. 3. Subsection (a) of section 36a-521 of the general statutes, as amended by section 14 of public act 01-34, is repealed and the following is substituted in lieu thereof (Effective from passage):

(a) No person engaged in the secondary mortgage loan business in this state as a lender, or a broker, including any licensee under sections 36a-510 to 36a-524, inclusive, and any person who is exempt from licensing under section 36a-512, may (1) charge, impose or cause to be paid, directly or indirectly, [as an incident to or a condition of the extension of credit] in connection with any secondary mortgage loan transaction, [any loan fees, points, commissions, transaction fees or similar prepaid finance charges determined in accordance with sections 36a-675 to 36a-685, inclusive, and regulations adopted thereunder, except the time-price differential, which, when added to any broker's fee or commission for which the borrower may be obligated,] prepaid finance charges that exceed in the aggregate eight per cent of the principal amount of the loan, or (2) include in the loan agreement [upon] under which [loan fees, points, commissions, transaction fees or similar] prepaid finance charges have been assessed any provision which permits the lender to demand payment of the entire loan balance prior to the scheduled maturity, except that such loan agreement may contain a provision which permits the lender to demand payment of the entire loan balance if any scheduled installment is in default for more than sixty days or if any condition of default set forth in the mortgage note exists. For purposes of this section, "prepaid finance charge" has the meaning given to that term in section 3 of public act 01-34, as amended by this act.

April 22, 2002