22300. No licensee shall directly or indirectly charge, contract
for, or receive any interest or charge of any nature unless a loan is
made.
22301. (a) No licensee shall directly or indirectly charge,
contract for, or receive any interest or charge of any nature with
respect to a loan of five thousand dollars ($5,000) or more unless
the loan is made.
(b) Notwithstanding subdivision (a), whenever a loan of five
thousand dollars ($5,000) or more is not consummated because of the
borrower's failure to disclose outstanding liens or other information
essential to making the loan or solely because of the borrower's
failure to complete the loan in accordance with the loan application,
a licensee may charge, contract for, and receive an amount equal to
the actual expenses incurred by the licensee in connection with the
preparation for the loan.
22302. (a) Section 1670.5 of the Civil Code applies to the
provisions of a loan contract that is subject to this division.
(b) A loan found to be unconscionable pursuant to Section 1670.5
of the Civil Code shall be deemed to be in violation of this division
and subject to the remedies specified in this division.
22303. Every licensee who lends any sum of money may contract for
and receive charges at a rate not exceeding the sum of the following:
(a) Two and one-half percent per month on that part of the unpaid
principal balance of any loan up to, including, but not in excess of
two hundred twenty-five dollars ($225).
(b) Two percent per month on that portion of the unpaid principal
balance in excess of two hundred twenty-five dollars ($225) up to,
including, but not in excess of nine hundred dollars ($900).
(c) One and one-half percent per month on that part of the unpaid
principal balance in excess of nine hundred dollars ($900) up to,
including, but not in excess of one thousand six hundred fifty
dollars ($1,650).
(d) One percent per month on any remainder of such unpaid balance
in excess of one thousand six hundred fifty dollars ($1,650).
This section does not apply to any loan of a bona fide principal
amount of two thousand five hundred dollars ($2,500) or more as
determined in accordance with Section 22251.
22304. As an alternative to the charges authorized by Section
22303, a licensee may contract for and receive charges at the greater
of the following:
(a) A rate not exceeding 1.6 percent per month on the unpaid
principal balance.
(b) A rate not exceeding five-sixths of 1 percent per month plus a
percentage per month equal to one-twelfth of the annual rate
prevailing on the 25th day of the second month of the quarter
preceding the quarter in which the loan is made, as established by
the Federal Reserve Bank of San Francisco, on advances to member
banks under Sections 13 and 13a of the Federal Reserve Act, as now in
effect or hereafter from time to time amended, or if there is no
single determinable rate for advances, the closest counterpart of
this rate as shall be determined by the Commissioner of Financial
Institutions. Charges shall be calculated on the unpaid principal
balance.
(c) This section does not apply to any loan of a bona fide
principal amount of two thousand five hundred dollars ($2,500) or
more as determined in accordance with Section 22251.
22305. In addition to the charges authorized by Section 22303 or
22304, a licensee may contract for and receive an administrative fee,
which shall be fully earned immediately upon making the loan, with
respect to a loan of a bona fide principal amount of not more than
two thousand five hundred dollars ($2,500) at a rate not in excess of
5 percent of the principal amount (exclusive of the administrative
fee) or fifty dollars ($50), whichever is less, and with respect to a
loan of a bona fide principal amount in excess of two thousand five
hundred dollars ($2,500), at an amount not to exceed seventy-five
dollars ($75). No administrative fee may be contracted for or
received in connection with the refinancing of a loan unless at least
one year has elapsed since the receipt of a previous administrative
fee paid by the borrower. Only one administrative fee may be
contracted for or received until the loan has been repaid in full.
For purposes of this section, "bona fide principal amount" shall be
determined in accordance with Section 22251.
22306. No amount in excess of that allowed by this article shall be
directly or indirectly charged, contracted for, or received by any
person, and the total charges of the finance lender and broker and
any other person in the aggregate shall not exceed the maximum rate
provided for in this article.
22307. (a) Except as provided in Section 22305 and Article 4
(commencing with Section 22400), all charges on loans made under this
division shall be computed and paid only as a percentage per month
of the unpaid principal balance or portions thereof, and shall be so
expressed in every obligation signed by the borrower. The charges on
loans shall be computed on the basis of the number of days actually
elapsed. For the purpose of these computations, a month is any period
of 30 consecutive days.
(b) The loan contract shall provide for payment of the aggregate
amount contracted to be paid in substantially equal periodical
installments, the first of which shall be due not less than 15 days
nor more than one month and 15 days from the date the loan is made.
This subdivision shall not apply to a loan made to a graduate student
at an accredited college or university while the student is actively
pursuing a study program leading to a postbaccalaureate degree, or
to a student loan made by an eligible lender under the Higher
Education Act of 1965, as amended (20 U.S.C. Sec. 1070 et seq.), or
to a student loan made pursuant to the Public Health Service Act, as
amended (42 U.S.C. Sec. 294 et seq.).
(c) This section shall not apply to open-end loans.
22308. Notwithstanding Section 22307, a licensee may contract for
and receive charges on the unpaid principal balance at a single
annual percentage rate, applied on the basis of the number of days
actually elapsed, if the annual rate would produce a finance charge
at the maturity of the contract not in excess of the finance charge
resulting from the application of the graduated rates specified in
Section 22303, when the loan is paid according to its terms, and
charges are computed on the basis that a month is any period of 30
consecutive days, as provided in Section 22307; provided, however,
that if prepayment in full occurs on or before the third installment
date, all charges shall be recomputed as a percentage per month of
the unpaid principal balance or portions thereof, based on the number
of days actually elapsed.
22309. Except as provided in Section 22305 and Article 4
(commencing with Section 22400), no charges on loans made pursuant to
this division shall be paid, deducted, or received in advance, or
compounded. However, if part or all of the consideration for a new
loan contract is the unpaid balance of a prior loan, the principal
amount payable under the new loan contract may include any unpaid
interest that has accrued on the prior loan. The unpaid principal
balance of a precomputed loan is the balance due after refund or
credit of unearned interest as provided in Section 22400. At the time
of making the loan, the licensee shall deliver to the borrower, or,
at the direction of the borrower, deliver to another person, an
amount equal to the face value of the loan and the note evidencing
the loan.
22310. (a) Except for a rebate or refund pursuant to any
administrative, civil, or criminal action, or any act of the
commissioner, a rebate or refund required to be made upon payment in
full of a loan pursuant to this division need not be made if the
aggregate of all rebates or refunds required in connection with a
loan is less than one dollar ($1).
(b) No licensee shall contract for or receive any payment required
in connection with a loan for the purpose of avoiding a rebate or
refund of less than one dollar ($1).
22311. No person in connection with or incidental to the making of
any loan regulated by this division may require the borrower to
contract for purchase, or agree to purchase, any other thing in
connection with the loan. A policy of insurance of the type specified
in Section 22313 and credit life and disability insurance is not
prohibited by this section. A policy of insurance of the type defined
by subdivision (a) of Section 12640.02 of the Insurance Code shall
not be deemed to be a collateral sale, purchase, or agreement within
the terms of this section or of Section 22201 or 22312.
22312. No person in connection with or incidental to the making of
a loan shall require the borrower to enter into any collateral sales
agreements or contracts, other than the contract of pledge,
assignment, or mortgage or personal property, or if otherwise
permitted by this division, the deed of trust, mortgage, or lien on
real property, by the borrower to the lender as security for the
repayment of the loan and charges on the loan. Insurance of the type
specified in Section 22313, credit life insurance, and credit
disability insurance are not prohibited by this section.
22313. Insurance on tangible personal or real property offered as
security shall not be deemed to be a collateral sale, purchase, or
agreement within the terms of Section 22201, 22311, or 22312, when
all the following requirements are met:
(a) The insurance is sold at standard rates through licensed
insurance brokers or agents.
(b) The policy is written to cover the property that is offered as
security for a loan.
(c) The property is reasonably insured against loss for a
reasonable term, which may be up to the term of the loan.
(d) The policy relating to personal property is made payable to
the borrower or any member of his or her family even though the
customary mortgagee clause is attached or the mortgagee is a
coassured.
(e) Except in the case of purchase money encumbrances, the amount
of title insurance shall not exceed the principal amount of the loan
that is secured by a deed of trust, mortgage, or lien on the real
property that is the subject of the policy of title insurance.
(f) The policy of title insurance insures the lender or is made
payable jointly to the lender and the borrower as their interests may
appear.
(g) Title insurance is placed through a title insurance company,
duly authorized to do business in the state in which the real
property is located, at rates comparable to rates being used by other
title insurance companies duly authorized to do business in that
state.
(h) Title insurance is placed in connection with the renewal or
extension of a loan only when the additional cash advance is at least
one thousand dollars ($1,000).
This section does not apply to any loan of a bona fide principal
amount of ten thousand dollars ($10,000) or more, or to a duly
licensed finance lender in connection with any such loan or loans as
determined in accordance with Section 22251.
22314. (a) Credit insurance shall not be deemed to be a collateral
sale, purchase, or agreement within the terms of Section 22201,
22311, or 22312 when the insurance is provided in accordance with the
provisions of the Insurance Code and this section. As used in this
division:
(1) "Credit insurance" means credit life, disability, and
loss-of-income insurance, or any combination of these coverages.
(2) "Credit life insurance" and "credit disability insurance" have
the same meanings as defined in Section 779.2 of the Insurance Code.
(3) "Credit loss-of-income insurance" means insurance issued to
provide indemnity for payments becoming due on a specific loan or
other credit transaction while the debtor is involuntarily
unemployed, as defined in the policy.
(b) A licensee may provide credit insurance with the borrower's
consent, the form to be approved by the Insurance Commissioner, and a
copy, together with evidence of its approval by the Insurance
Commissioner, and a copy of the schedule of rates together with
evidence of its approval by the Insurance Commissioner, to be filed
with the commissioner prior to the offer or sale of the credit
insurance and in an amount not in excess of the amount of the
indebtedness, and, with respect to credit life or disability
insurance, may collect from the borrower an amount not in excess of
that permitted by or pursuant to Section 779.36 of the Insurance
Code.
(c) If the loan is prepaid in full by cash, a new loan,
refinancing, or otherwise (except by that insurance) before the final
installment date, the borrower shall receive a rebate of that amount
computed in accordance with the formula approved by the Insurance
Commissioner pursuant to Section 779.14 of the Insurance Code.
(d) When charges for the loan are precomputed in accordance with
Section 22400, any permitted deferment charge may be computed on the
combined total of the precomputed charge and the credit insurance
charge. Only one deferment charge may be collected in connection with
any loan contract, irrespective of the number of borrowers, and only
one borrower need be insured. The amount of the deferment charge may
be deducted from the principal of the loan.
(e) If life or disability insurance is provided, and if the
insured borrower dies or becomes disabled during the term of the loan
contract, the insurance shall be sufficient to pay the total amount
due on the loan, excluding unearned charges, outstanding on the date
of death, or all amounts that become due on the loan during the
period of disability, as the case may be, without any exception,
reservation, or limitation, subject, however, to the provisions of
Section 22315.
(f) Any credit insurance provided shall be in force as soon as the
loan is made. A licensee shall not require credit insurance as a
condition of making a loan.
(g) If a borrower procures credit insurance by or through a
licensee, the statement required by Section 22338 shall disclose the
cost of the credit insurance to the borrower, and the licensee shall
deliver or cause to be delivered to the borrower a copy of the
policy, certificate, or other evidence thereof, within a reasonable
time. In the event a licensee provides credit disability or
loss-of-income insurance pursuant to this division, the licensee
shall also deliver an understandable written statement to the
borrower detailing the conditions under which the borrower will be
entitled to make a claim under the insurance policy and the procedure
to be followed in making the claim. This statement shall be first
approved by the Insurance Commissioner.
(h) The amount charged to the borrower for credit life or
disability insurance shall not exceed the amount established by or
pursuant to Section 779.36 of the Insurance Code.
(i) Nothing in this article shall prevent a licensee from selling
insurance as other business if authorized by Section 22154.
This section does not apply to any loan of a bona fide principal
amount of ten thousand dollars ($10,000) or more, or to a duly
licensed finance lender in connection with any such loan or loans as
determined in accordance with Section 22251.
22315. (a) Credit disability insurance written pursuant to Section
22314 shall not provide indemnity against the risk that the borrower
will become disabled for a period of less than 14 days. The insurance
may provide indemnity for any single period of continuous disability
of 14 days or longer, after which the risk may become compensable.
The insurance may be offered with retroactive coverage to an earlier
date based upon the disability having continued for a period stated
in the policy, but if insurance with retroactive coverage is offered,
it shall also be offered without retroactive coverage, and the
premium rate for each coverage shall be separately stated in writing
to the borrower.
(b) If insurance with retroactive coverage is provided, the
coverage shall provide for a prorated payment based upon the fraction
of the month during which the insured is disabled, provided that the
insured is continuously disabled during the waiting period set forth
in the policy. If insurance without retroactive coverage is
provided, the coverage shall provide for a prorated payment based
upon the fraction of the month during which the insured is disabled,
after first excluding the elimination period set forth in the policy.
For the purpose of this subdivision, a month is any period of 30
consecutive days.
(c) Credit disability insurance, if made available by a licensee,
shall be available on a monthly or annual premium basis, and the
premium by the month shall not exceed a pro rata relationship to the
annual premium. Credit disability insurance need not be offered for a
period less than the term of the loan to which it is applicable, and
no credit disability insurance shall be written for a period in
excess of the term of the loan to which it is applicable.
(d) The monthly disability benefit payable with respect to an
open-end loan shall not exceed the monthly payment computed pursuant
to Section 22453 on the outstanding balance at the time disability is
incurred.
This section does not apply to any loan of a bona fide principal
amount of ten thousand dollars ($10,000) or more, as determined in
accordance with Section 22251.
22316. A licensee may collect the cost of a lot book report
purchased in lieu of the title insurance provided for in Section
22313. The cost is not included in charges as defined in this
division or in determining the maximum charges that may be made under
this article.
22317. On any loan made that is secured by real property, an
appraisal fee not to exceed the actual cost of the appraisal may be
charged by the licensee if a written appraisal is provided to the
licensee by a qualified appraiser. Only one fee for appraising the
same real property may be collected unless the borrower has obtained
a new or additional loan and more than one year has elapsed since the
prior appraisal. The fee is not included in charges as defined in
this division or in determining the maximum charges that may be made
under this article.
22317.2. (a) A licensee may collect a fee for use of an automated
valuation model result prepared by a third party not to exceed the
actual cost paid to the third party for a written automated valuation
model result in lieu of the appraisal provided for in Section 22317.
The borrower shall not be charged for both an automated valuation
model result and an appraisal as defined in Section 22317 for the
same property in a single transaction. Only one fee for providing an
automated valuation model result or an appraisal for the same real
property may be collected unless the borrower has obtained a new or
additional loan and more than one year has elapsed since the prior
delivery of an automated valuation model result or an appraisal.
However, if a fee for an automated valuation model result has been
paid, an appraisal fee minus the amount that has been paid by the
borrower for the automated valuation model result may be charged for
an appraisal for the same real property within one year if the
borrower has obtained a new or additional loan. The fee is not
included in charges as defined in this division or in determining the
maximum charges that may be made under this article.
(b) A licensee in a loan transaction secured by real property
shall provide notice as described in this section to a borrower of
the borrower's right to receive a copy of the automated valuation
model result, provided he or she has paid a fee for the automated
valuation model result. A borrower's written request for a copy of an
automated valuation model result shall be received by the licensee
no later than 90 days after (1) the licensee has provided notice of
the action taken on the application, including a notice of
incompleteness, or (2) the application has been withdrawn.
(c) The licensee shall mail or deliver a copy of an automated
valuation model result within 15 days after receiving a written
request from the borrower, or within 15 days after receiving the
automated valuation model result, whichever occurs later.
(d) Where the loan is proposed to be secured by real property, the
notice of the borrower's right to a copy of the automated valuation
model result shall be given in at least 10-point boldface type, as a
separate document in a form that the borrower may retain, and no
later than 15 days after the licensee receives the written
application. The notice shall specify that the borrower's request for
the automated valuation model result must be in writing and must be
received by the licensee no later than 90 days after the licensee
provides notice of the action taken on the application or a notice of
incompleteness, or in the case of a withdrawn application, 90 days
after the withdrawal. The notice shall also include the following
statement: "An automated valuation model is not an appraisal. It is a
computerized property valuation system that is used to derive a real
property value." An address to which the request should be sent
shall be specified in the notice. Release of the automated valuation
model result to the borrower may be conditioned upon payment of the
fee.
(e) This section does not apply to automated valuation model
results obtained by licensees on property owned by the licensee, nor
to automated valuation model results obtained by the licensee in
anticipation of modifying any existing loan agreement if the licensee
does not charge for the use of the automated valuation model result.
(f) For purposes of this section, an "automated valuation model"
is a computerized property valuation system that is used to derive a
real property value.
(g) Nothing in this section authorizes the use of an automated
valuation model result in lieu of an appraisal that is required under
state or federal law.
22317.5. On any loan secured by real property, a licensee may not
do either of the following:
(a) Fail to disburse funds in accordance with a commitment to make
a loan that is accepted by the applicant.
(b) Intentionally delay the closing of a loan for the sole purpose
of increasing interest, costs, fees, or charges payable by the
borrower.
22318. On any loan made that is secured by real property, an escrow
fee of a reasonable amount may be charged. The fee shall be
considered reasonable when paid to a company licensed to do business
under the Escrow Law (Division 6 (commencing with Section 17000)), or
any person exempted by the Escrow Law, provided that the fees are
comparable to fees charged by escrow companies authorized to do
business in this state. The fee is not included in charges defined in
this division in determining the applicable maximum charges that may
be made under this article.
22319. On any loan that is secured by real property, the fee to be
paid to the trustee for reconveyance of the trust deed may be
collected by the licensee for transmittal to the trustee. The fee is
not included in charges defined in this division or in determining
the applicable maximum charges that may be made under this article.
22320. With respect to a loan under this division, a fee not to
exceed fifteen dollars ($15) for the return by a depository
institution of a dishonored check, negotiable order of withdrawal, or
share draft may be charged and collected by the licensee. The fee is
not included in charges defined in this division or in determining
the applicable maximum charges that may be made under this article.
22320.5. (a) A licensee may contract for and receive a delinquency
fee not in excess of one of the following amounts:
(1) For a period in default of not less than 10 days, an amount
not in excess of ten dollars ($10).
(2) For a period in default of not less than 15 days, an amount
not in excess of fifteen dollars ($15).
(b) The delinquency fee may not be collected more than once for
the same default and may be collected at the time of the default or
at any time thereafter. If the delinquency fee is deducted from any
payment received after default occurs, and the deduction results in
the default of a subsequent installment, no fee may be collected for
the resulting default. The delinquency fee under this section is not
included in charges defined in this division or in determining
applicable maximum charges that may be made under this article.
(c) For open-end loans made under Article 5 (commencing with
Section 22450), a licensee shall not collect or receive the
delinquency fee set forth in subdivision (a) unless there is a
minimum of 20 days, inclusive, between the monthly billing date and
the date upon which the minimum payment is due, exclusive of the
applicable grace period provided in subdivision (a).
(d) This section shall not apply to precomputed loans as described
in Section 22400.
22321. If credit loss-of-income insurance is provided pursuant to
this division, it shall be subject to the following conditions:
(a) The insurance shall provide indemnity in accordance with the
terms of the policy after any single period of continuous
unemployment of 45 days or less as determined by the policy, after
which benefits shall commence. The insurance may be offered with
retroactive coverage to an earlier date based upon unemployment
having continued for the period stated in the policy.
(b) The statement required by Section 22337 shall include
disclosure of the term of the coverage, the conditions of coverage,
the benefits to be paid, and the exclusions from coverage.
(c) The borrower shall sign a certificate of voluntary acceptance
of any credit loss-of-income insurance purchased. The certificate
shall state in boldface type that is larger than the type used in the
loan contract that purchase of the insurance is not a necessary
condition of receiving the loan, and that the insurance may be
canceled by the borrower at any time within 15 days after it goes
into effect. If the borrower cancels the insurance within 15 days, a
full refund shall be made of the premium paid.
(d) The minimum benefit shall be payment up to the agreed amount
on not less than four benefit payments, as stated in the policy,
which accrue during a covered period of unemployment, except that
during the first 60 days after inception of the policy, the minimum
benefit may be payment up to the agreed amount of one-half the number
of benefit payments, as stated in the policy, which accrue during a
covered period of unemployment. The maximum benefits shall be
established in the contract of insurance.
(e) If combination credit disability and credit loss-of-income
coverage is offered, credit disability and credit loss-of-income
coverage shall also be offered separately.
(f) Benefits may not be denied because the insured cannot
establish a valid claim for unemployment compensation benefits under
Part 1 (commencing with Section 100) of Division 1 of the
Unemployment Insurance Code solely because the former employer was
not required to contribute to the State Unemployment Fund.
(g) If insurance with retroactive coverage is provided, the
coverage shall provide for a prorated payment based upon the fraction
of the month during which the insured is unemployed, provided that
the insured is continuously unemployed during the waiting period set
forth in the policy. If insurance without retroactive coverage is
provided, the coverage shall provide for a prorated payment based
upon the fraction of the month during which the insured is
unemployed, after first excluding the elimination period set forth in
the policy. For the purpose of this subdivision, a month is any
period of 30 consecutive days.
(h) When unemployment continues for a number of months equal to or
greater than the maximum number of benefit payments stated in the
policy, the final payment shall be equal to the difference between a
benefit payment and the initial prorated payment.
(i) As used in this section, "benefit payment" means payment of an
amount equal to a loan repayment installment or a maximum amount
established in the contract of insurance, whichever is less.
(j) The minimum benefit payment offered may not be less than the
amount of a loan repayment installment unless the borrower or
borrowers have two or more sources of income. If the maximum benefit
payment offered is less than the amount of a loan repayment
installment, the borrower shall also be offered coverage in which the
maximum benefit payment is equal to the amount of a loan repayment
installment.
This section does not apply to any loan of a bona fide principal
amount of ten thousand dollars ($10,000) or more, or to a duly
licensed finance lender in connection with any such loan or loans as
determined in accordance with Section 22251.
22322. A loan lawfully made outside the state may be enforced in
this state as to the unpaid principal balance of the loan together
with the interest, consideration, brokerage, and all other charges,
to the extent of but not to exceed the unpaid principal balance and
the aggregate amount of interest, consideration, brokerage, and all
other charges permitted by this division in connection with a loan of
the same amount made within this state.
22323. Any person who collects or attempts to collect in this state
the unpaid principal balance of a loan made outside the state and a
greater aggregate amount of interest, consideration, brokerage, and
all other charges in connection with the loan than is permitted by
this division in connection with a loan of the same amount made
within this state, is subject to the provisions of this division.
22324. Any person who contracts for or negotiates in this state a
loan to be made outside the state for the purpose of evading or
avoiding the provisions of this division is subject to the provisions
of this division.
22325. Every licensee shall display prominently in each licensed
place of business a full and accurate schedule of the charges to be
made and the method of computing the charges. The schedule is subject
to the approval of the commissioner.
22326. No person, except as authorized by this division, shall
directly or indirectly charge, contract for, or receive any interest,
discount, or consideration greater than the lender would be
permitted by law to charge if he or she were not a licensee
hereunder, upon the loan, use, or forbearance of money, goods, or
things in action, or upon the loan, use, or sale of credit. This
section applies to any person, who by any device, subterfuge, or
pretense charges, contracts for, or receives greater interest,
consideration, or charges than is authorized by this division for any
loan, use, or forbearance of money, goods, or things in action or
for any loan, use, or sale of credit.
22327. No licensee shall knowingly induce any borrower to split up
or divide any loan with any other licensee. No licensee shall induce
or permit any borrower to be or to become obligated directly or
indirectly, or both, under more than one contract of loan at the same
time with the same licensee for the purpose or with the result of
obtaining a higher rate of charge than would otherwise be permitted
by this article, except as otherwise required by the federal Equal
Credit Opportunity Act (15 U.S.C. Sec. 1691 et seq.; P.L. 93-495) and
Regulation B promulgated by the Board of Governors of the Federal
Reserve System (12 C.F.R. 202 et seq.). For the purpose of this
section, "borrower" includes any husband and wife, whether jointly or
severally obligated.
22328. (a) This section applies to a loan secured in whole or in
part by a lien on a motor vehicle as defined by subdivision (k) of
Section 2981 of the Civil Code.
(b) Any provision in any loan contract to the contrary
notwithstanding, at least 15 days' written notice of intent to
dispose of a repossessed or surrendered motor vehicle must be given
to all persons liable on the loan. The notice shall be personally
served or shall be sent by certified mail, return receipt requested,
or first-class mail, postage prepaid, directed to the last known
address of the persons liable on the loan. Except as otherwise
provided in Section 2983.8 of the Civil Code, those persons shall be
liable for any deficiency after disposition of the repossessed or
surrendered motor vehicle only if the notice prescribed by this
section is given within 60 days of repossession or surrender and does
all of the following:
(1) States that those persons shall have a right to redeem the
motor vehicle by paying in full the indebtedness evidenced by the
loan note until the expiration of 15 days from the date of giving or
mailing the notice, provides an itemization of the loan balance and
of any costs and fees authorized by this division, and states the
computation or estimate of the amount of any credit for unearned
finance charges or canceled insurance as of the date of the notice.
(2) States either that there is a conditional right to reinstate
the loan until the expiration of 15 days from the date of giving or
mailing the notice and all the conditions precedent thereto or that
there is no right of reinstatement and provides a statement of
reasons therefor.
(3) States that, upon written request, the licensee shall extend
for an additional 10 days the redemption period or, if entitled to
the conditional right of reinstatement, both the redemption and
reinstatement periods. The licensee shall provide the proper form for
applying for these extensions with the substance of the form being
limited to the extension request, spaces for the requesting party to
sign and date the form, and instructions that it must be personally
served or sent by certified or registered mail, return receipt
requested, to a person or office and address designated by the
licensee and received before the expiration of the initial redemption
and reinstatement periods.
(4) Discloses the place at which the motor vehicle will be
returned to the persons liable on the loan upon redemption or
reinstatement.
(5) Designates the name and address of the person or office to
whom payment shall be made.
(6) States the licensee's intent to dispose of the motor vehicle
upon the expiration of 15 days from the date of giving or mailing the
notice, or if by mail and either the place of deposit in the mail or
the place of address is outside of this state, the period shall be
20 days instead of 15 days, and further, that upon written request to
extend the redemption period and any applicable reinstatement period
for 10 days, the licensee shall, without further notice, extend the
period accordingly.
(7) Informs the persons liable on the loan that, upon written
request, the licensee shall furnish a written accounting regarding
the disposition of the motor vehicle as provided for in subdivision
(c). The licensee shall advise them that the request must be
personally served or sent by first-class mail, postage prepaid, or
certified mail, return receipt requested, to a person or office and
address designated by the licensee.
(8) Includes a notice, in at least 10-point bold type if the
notice is printed, reading as follows:
"NOTICE: YOU MAY BE SUBJECT TO SUIT AND LIABILITY IF THE AMOUNT
OBTAINED UPON DISPOSITION OF THE VEHICLE IS INSUFFICIENT TO PAY THE
LOAN BALANCE AND ANY OTHER AMOUNTS DUE."
(c) Unless automatically provided to the borrower within 45 days
after the disposition of the motor vehicle, the licensee shall
provide a written accounting regarding the disposition to any person
liable on the loan within 45 days after their written request, if the
request is made within one year after the disposition. The
accounting shall itemize:
(1) The gross proceeds of the disposition.
(2) The reasonable and necessary costs and fees authorized by this
division incurred in repossessing the motor vehicle.
(3) The satisfaction of indebtedness secured by any subordinate
lien or encumbrance on the motor vehicle if written notification of
demand therefor is received before distribution of the proceeds is
completed. If requested by the licensee, the holder of a subordinate
lien or encumbrance shall seasonably furnish reasonable proof of its
interest, and unless it does so, the seller or holder need not comply
with its demand.
(d) In all sales that result in a surplus, the licensee shall
furnish an accounting as provided in subdivision (c) whether or not
requested by the borrower. The surplus shall be returned to the
borrower within 45 days after the sale is conducted.
22329. (a) This section applies to a loan secured in whole or in
part by a lien on a motor vehicle as defined by subdivision (k) of
Section 2981 of the Civil Code.
(b) In the absence of default in the performance of any of the
borrower's obligations under the loan, the licensee may not
accelerate the maturity of any part or all of the amount due
thereunder or repossess the motor vehicle.
(c) If, after default by the borrower, the licensee repossesses or
voluntarily accepts surrender of the motor vehicle, any person
liable on the loan shall have a right to reinstate the loan and the
licensee shall not accelerate the maturity of any part or all of the
loan prior to the expiration of the right to reinstate, unless the
licensee reasonably and in good faith determines that:
(1) The borrower or any other person liable on the loan by
omission or commission intentionally provided false or misleading
information of material importance on his or her credit application.
(2) The borrower or any other person liable on the loan has
concealed the motor vehicle or removed it from the state in order to
avoid repossession.
(3) The borrower or any other person liable on the loan has
committed or threatens to commit acts of destruction, or has failed
to take care of the motor vehicle in a reasonable manner, so that the
motor vehicle has or may become substantially impaired in value.
(d) Exercise of the right to reinstate the loan shall be limited
to once in any 12-month period and twice during the term of the loan.
(e) The provisions of this subdivision shall govern the method by
which a loan shall be reinstated with respect to curing events of
default that were grounds for repossession or that occurred
subsequent to repossession.
(1) Where the default is the result of the borrower's failure to
make any payment due under the loan, the borrower or any other person
liable on the loan shall make the defaulted payments and pay any
applicable delinquency charges.
(2) Where the default is the result of the borrower's failure to
keep and maintain the motor vehicle free from all encumbrances and
liens of every kind, the borrower or any person liable on the loan
shall either satisfy all the encumbrances and liens or, in the event
the licensee satisfies the encumbrances and liens, the borrower or
any other person liable on the loan shall reimburse the licensee for
all reasonable costs and expenses incurred therefor.
(3) Where the default is the result of the borrower's failure to
keep and maintain insurance on the motor vehicle, the borrower or any
other person liable on the loan shall either obtain the insurance
or, in the event the licensee has obtained the insurance, the
borrower or any other person liable on the loan shall reimburse the
licensee for premiums paid and all reasonable costs and expenses
incurred therefor.
(4) Where the default is the result of the borrower's failure to
perform any other obligation under the loan, unless the licensee has
made a good faith determination that the default is so substantial as
to be incurable, the borrower or any other person liable on the loan
shall reimburse the licensee for all reasonable costs and expenses
incurred therefor.
(5) Additionally, the borrower or any other person liable on the
loan shall reimburse the licensee for actual and necessary fees in an
amount not exceeding the amount specified in subdivision (f) of
Section 22202 paid in connection with the repossession of a motor
vehicle to a repossession agency licensed pursuant to Chapter 11
(commencing with Section 7500) of Division 3 of the Business and
Professions Code, and actual fees in conformity with Sections 26751
and 41612 of the Government Code in an amount not exceeding the
amount specified in those sections of the Government Code.
(f) If the licensee denies the right to reinstatement under
subdivision (c) or paragraph (4) of subdivision (e), the licensee
shall have the burden of proof that the denial was justified in that
it was reasonable and made in good faith. If the licensee fails to
sustain the burden of proof, the licensee shall not be entitled to a
deficiency.
22329.5. A licensee, or the agent of a licensee, that has received
a notice pursuant to Section 7507.6 of the Business and Professions
Code, shall not make a subsequent assignment to skip trace, locate,
or repossess the vehicle without simultaneously, and in the same
manner by which the assignment is given, advising the assignee of the
assignment of the information contained in the notice. As used in
this section, "assignment" has the same meaning set forth in Section
7500.1 of the Business and Professions Code.
22330. No licensee shall take a deed of trust, mortgage, or lien
upon real property as security for any loan made under this division,
except any lien as is created by law upon the recording of an
abstract of judgment. This section shall not apply to any loan of a
bona fide principal amount of five thousand dollars ($5,000) or more
as determined in accordance with Section 22251.
22331. No licensee shall take any confession of judgment or any
power of attorney, except a power of attorney taken to effectuate the
transfer of the ownership of any motor vehicle or mobilehome at the
time of making the loan.
22332. No licensee shall take any note or promise to pay that does
not accurately disclose the actual amount of the loan, the time for
which it is made, and the agreed rate of charge or the annual
percentage rate pursuant to Regulation Z promulgated by the Board of
Governors of the Federal Reserve System.
22333. No licensee shall take any instrument in which blanks are
left to be filled in after execution.
22334. No licensee shall enter into any contract for a loan that
provides for a scheduled repayment of principal over more than the
maximum terms set forth below opposite the respective size of loans.
Principal amount of loan Maximum term
Less than $500............. 24 months and 15 days
$500 but less than $1,500.. 36 months and 15 days
$1,500 but less than 48 months and 15 days
$3,000.....................
$3,000 but less than 60 months and 15 days
$5,000.....................
This section does not apply to open-end loans, or to a student
loan made by an eligible lender under the Higher Education Act of
1965, as amended (20 U.S.C. Sec. 1070 et seq.), or to a student loan
made pursuant to the Public Health Service Act, as amended (42 U.S.C.
Sec. 294 et seq.).
22335. The payment by any person in money, credit, goods, or things
in action as consideration for any sale or assignment of, or order
for, the payment of wages, salary, commissions, or other compensation
for services, whether earned or to be earned, is, for the purposes
of regulation under this division, a loan secured by the assignment.
The amount by which the assigned compensation exceeds the amount of
the consideration actually paid is interest and charges upon or for
the loan, calculated from the date of payment to the date the
compensation is payable.
This section shall not be construed as modifying or affecting
existing statutes governing wage assignments in the state, or as
authorizing those assignments.
22336. This article does not prohibit any licensee from contracting
for, collecting, or receiving the following:
(a) The statutory fee paid by the licensee to any public officer
for acknowledging, filing, recording, or releasing in any public
office any instrument securing the loan or executed in connection
with the loan.
(b) Premiums paid by the licensee of the kind and to the extent
described in paragraph (2) of subsection (e) of Section 226.4 of
Regulation Z promulgated by the Board of Governors of the Federal
Reserve System (12 C.F.R. 226).
These amounts are not included in determining the maximum charges
which may be made under this article.
22337. Each licensed finance lender shall:
(a) Deliver or cause to be delivered to the borrower, or any one
thereof, at the time the loan is made, a statement showing in clear
and distinct terms the name, address, and license number of the
finance lender and the broker, if any. The statement shall show the
date, amount, and maturity of the loan contract, how and when
repayable, the nature of the security for the loan, if any, and the
agreed rate of charge or the annual percentage rate pursuant to
Regulation Z promulgated by the Board of Governors of the Federal
Reserve System (12 C.F.R. 226).
(b) Obtain from the borrower a signed statement as to whether any
person has performed any act as a broker in connection with the
making of the loan. If the statement discloses that a broker or other
person has participated, then the finance lender shall obtain a full
statement of all sums paid or payable to the broker or other person.
The finance lender shall keep these statements for a period of three
years from and after the date the loan has been paid in full, or has
matured according to its terms, or has been charged off.
(c) Permit payment to be made in advance in any amount on any
contract of loan at any time. The licensee may apply the payment
first to any agreed prepayment penalty, then to all charges due,
including charges at the agreed rate or rates up to the date of
payment, not to exceed the applicable maximum rate permitted by this
article.
(d) Deliver or cause to be delivered to the person making any cash
payment, or to the person who requests a receipt at the time of
making any payment, at the time payment is made on account of any
loan, a plain and complete receipt showing the total amount received
and identifying the loan contract upon which the payment is applied.
(e) Upon repayment of any loan in full, release all security for
the loan, endorse and return any certificate of ownership, and cancel
or plainly mark "paid" and return to the borrower or person making
final payment, any note, mortgage, security agreement, trust deed,
assignment, or order signed by the borrower, or an optical image
reproduction thereof, except those documents that are a part of the
court record in any action, or that have been delivered to a third
person for the purpose of carrying out their terms, or a security
agreement that secures any other indebtedness of a borrower to the
licensee, or original documents otherwise required by law. When a
trust deed on real property has been taken as security for a loan
that has been subsequently paid in full, a duly executed request for
reconveyance shall be delivered to the trustor or trustee for the
purpose of recording a reconveyance. A termination statement,
furnished to the borrower as provided for in Sections 9512 and 9513
of the Commercial Code, shall be deemed a release of the security
when a financing statement has been filed pursuant to Section 9501 of
the Commercial Code.
For purposes of this subdivision, an optical image reproduction
shall meet all of the following requirements:
(1) The optical image storage media used to store the document
shall be nonerasable write once, read many (WORM) optical image media
that does not allow changes to the stored document.
(2) The optical image reproduction shall be made consistent with
the minimum standards of quality approved by either the National
Institute of Standards and Technology or the Association for
Information and Image Management.
(3) Written authentication identifying the optical image
reproduction as an exact unaltered copy of the note, trust deed,
mortgage, security agreement, assignment or order shall be stamped or
printed on the optical image reproduction.
(f) Deliver or cause to be delivered to the potential borrower, or
any one thereof, at the time the licensee first requires or accepts
any signed instrument or the payment of any fee, a statement showing
in clear and distinct terms the name, address, and license number of
the finance lender and the broker, if any.
22338. Each licensed broker shall:
(a) Deliver to the borrower, or any one thereof, at the time the
final negotiation or arrangement is made, a statement showing in
clear and distinct terms the name, address, and license number of the
broker and the finance lender. The statement shall show the date,
amount, and terms of the agreement with the broker, and all amounts
paid or to be paid to the broker and to any person other than the
finance lender.
(b) Deliver to the finance lender making the loan a copy of the
statement referred to and described in subdivision (a).
(c) Deliver to the person making any payment to the broker to be
retained by the broker, a plain and complete receipt for each payment
made, at the time it is made, showing the total amount received, and
identifying the brokerage agreement and the loan contract upon which
the payment is applied. If the payment is made by a person other
than the finance lender, a copy of the receipt shall be delivered to
the finance lender.
(d) When the borrower pays the loan in full, ensure that the
finance lender fully complies with subdivision (e) of Section 22337.
(e) Deliver to the potential borrower or borrowers, at the time
the licensee first requires or accepts any signed instrument or the
payment of any fee, a statement showing in clear and distinct terms
the name, address, and license number of the broker and finance
lender.
22339. Nothing contained in this article shall be construed to deny
to any licensee hereunder the right of taking and using a security
agreement that, in addition to securing an original obligation, may
secure the repayment of sums that may be advanced to, or expenditures
that may be made at the direction of, the borrower subsequent to the
execution of the security agreement and prior to the satisfaction
thereof.
22340. (a) A licensee may sell promissory notes evidencing the
obligation to repay loans made by the licensee pursuant to this
division or evidencing the obligation to repay loans purchased from
and made by another licensee pursuant to this division to
institutional investors, and may make agreements with institutional
investors for the collection of payments or the performance of
services with respect to those notes.
(b) For the purpose of this section, "institutional investor"
means the following:
(1) The United States or any state, district, territory, or
commonwealth thereof, or any city, county, city and county, public
district, public authority, public corporation, public entity, or
political subdivision of a state, district, territory, or
commonwealth of the United States, or any agency or other
instrumentality of any one or more of the foregoing.
(2) A bank, trust company, savings bank or savings and loan
association, credit union, industrial bank or industrial loan
company, finance lender, residential mortgage lender, or insurance
company doing business under the authority of and in accordance with
a license, certificate, or charter issued by the United States or any
state, district, territory, or commonwealth of the United States.
(3) Trustees of pension, profit sharing, or welfare funds, if the
pension, profit sharing, or welfare fund has a net worth of not less
than fifteen million dollars ($15,000,000), except pension, profit
sharing, or welfare funds of a licensee or its affiliate,
self-employed individual retirement plans, or individual retirement
accounts.
(4) A corporation with outstanding securities registered under
Section 12 of the Securities Exchange Act of 1934 or any wholly owned
subsidiary of that corporation; provided, however, that the
purchaser represents that it is purchasing for its own account for
investment and not with a view to or for sale in connection with any
distribution of the promissory note.
(5) A syndication or other combination of any of the foregoing
that is organized to purchase the promissory note.
(6) A trust or other business entity established by an
institutional investor for the purpose of issuing or facilitating the
issuance of undivided interests in, the right to receive payments
from, or that are payable primarily from, a pool of financial assets
held by the trust or business entity if all of the following apply:
(A) The business entity is not a sole proprietorship.
(B) The pool of assets consists of one or more of the following:
(i) Interest bearing obligations.
(ii) Other contractual obligations representing the right to
receive payments from the assets.
(iii) Surety bonds, insurance policies, letters of credit, or
other instruments providing credit enhancements for these assets.
(C) The interests will be either of the following:
(i) Rated investment grade by Standard & Poor's Corporation or
Moody's Investors Service, Inc. "Investment grade" means that the
securities will be rated by Standard & Poor's Corporation as AAA, AA,
A, or BBB, or by Moody's Investor Service, Inc., as Aaa, Aa, A, or
Baa, including a rating with a "+" or "-" designation or other
variations that occur within these ratings.
(ii) Sold to an institutional investor as otherwise defined in
this section.
(D) The offer and sale of the securities is qualified under the
Corporate Securities Law of 1968 (Division 1 (commencing with Section
25000) of Title 4 of the Corporations Code) or is registered under
federal securities laws, or is exempt from qualification or
registration.
(c) In the absence of agreement to the contrary by the licensee
and the institutional investor, all payments received from the
collection of payments shall be deposited and maintained in a trust
account, and shall be disbursed from the trust account only in
accordance with the instructions of the owner of the promissory note.
22340.1. (a) A licensee that is a finance lender may sell to (1) an
institutional lender, or (2) an institutional investor described in
paragraph (6) of subdivision (b) of Section 22340, promissory notes
evidencing the obligation to repay federally related mortgage loans,
as defined in Section 3500.2 of Title 24 of the Code of Federal
Regulations, purchased from and made by an institutional lender, and
may make agreements for the collection of payments and performance of
services with respect to those notes. For purposes of this section,
"institutional lender" means any bank, trust company, savings bank or
savings and loan association, credit union, industrial loan company
or residential mortgage lender doing business under the authority of
and in accordance with a license, certificate or charter issued by
the United States or this state.
(b) In the absence of agreement to the contrary by the licensee
and the institutional investor or institutional lender, all payments
received from the collection of payments shall be deposited and
maintained in a trust account, and shall be disbursed from the trust
account only in accordance with the instructions of the owner of the
promissory note.
22341. (a) No licensee may make a loan to refinance a retail
installment contract subject to Chapter 1 (commencing with Section
1801) of Title 2 of Part 4 of Division 3 of the Civil Code, that is
held by the licensee, its subsidiaries, or affiliates, unless all of
the following conditions are met:
(1) The buyer has been making installment payments required by the
retail installment contract for a period of not less than 90 days.
The retail installment contract has a term of not less than 180 days
and does not provide for any scheduled installment that is more than
twice the amount of any other scheduled installment.
(2) The loan provides for additional proceeds other than for
insurance in an amount not less than the outstanding principal
balance of the retail installment contract and provides for payment
in full of the retail installment contract.
(3) The licensee shall not take a security interest in real
property that is the principal residence of the borrower unless the
loan has a principal amount of five thousand dollars ($5,000) or more
and the following notice written in the same language, for example,
Spanish, as used in the loan documents, is incorporated into the
statement used to comply with Section 22338:
"WARNING TO BORROWER: IF YOU ACCEPT THIS LOAN YOU WILL BE PUTTING
UP YOUR HOME AS SECURITY. THIS MEANS THAT YOUR HOME COULD BE SOLD
WITHOUT YOUR PERMISSION AND WITHOUT ANY COURT ACTION IF YOU MISS ANY
PAYMENT AS REQUIRED BY THIS LOAN."
This notice shall be printed in not less than 14-point bold type,
shall be set apart from the rest of the statement by a border, and
shall appear directly above a signature block which shall be signed
by the borrower. A security interest described in this paragraph that
is taken without prior notice and the borrower's signature, as
required by this paragraph, shall be void and unenforceable.
(4) The licensee shall not sell, attempt to sell, or agree to sell
any goods or services to the borrower, other than credit insurance
as defined in Section 22314 and insurance required by the licensee to
protect its security interest, until the loan has been in effect for
at least 30 days. The amount of insurance required by the licensee
to protect its security interest shall not exceed the lesser of the
principal amount of the loan or the replacement value of the security
as determined by the insurer.
(5) A licensee that is an assignee of the retail installment
contract shall continue to be subject under the loan to all equities
and defenses of the borrower against the seller arising out of the
sale, notwithstanding an agreement to the contrary.
(6) The loan shall not provide for any scheduled installment that
is more than twice the amount of any other scheduled installment.
This paragraph does not apply to a loan of a bona fide principal
amount of ten thousand dollars ($10,000) or more.
(7) If a loan of a bona fide principal amount of ten thousand
dollars ($10,000) or more provides for any scheduled installment that
is more than twice the amount of any other scheduled installment,
the loan shall contain the following provision:
"The payment schedule contained in this loan requires that you
make a balloon payment of $____ (amount of balloon payment) which is
a payment of more than double the amount of the regular payments. You
have an absolute right to obtain a new payment schedule if you
default in the payment of any balloon payment."
If the borrower defaults in the payment of any balloon payment,
the borrower shall be given an absolute right to obtain a new payment
schedule. Unless agreed to by the borrower, the installment amounts
under the new schedule shall not be substantially greater than the
average of the preceding installments.
(b) A loan made pursuant to this section shall be subject to this
division and not to Chapter 1 (commencing with Section 1801) of Title
2 of Part 4 of Division 3 of the Civil Code.
(c) An action by any licensee or borrower on a loan made pursuant
to this section shall be tried in the county in which the loan was
signed by the borrower, in the county in which the borrower resided
at the time the loan was entered into, or in the county in which the
borrower resides at the commencement of the action.
(d) Paragraphs (6) and (7) of subdivision (a) do not apply to
open-end loans.
(e) A security interest provided by any retail installment
contract in violation of subdivision (b) of Section 1804.3 of the
Civil Code shall not serve as consideration in whole or in part for a
loan made under this section, notwithstanding any agreement to the
contrary.
22342. (a) As used in this section, "instant loan check" or "live
check" means any loan or extension of credit that is made available
in the form of a check, draft, or any other negotiable instrument
that can be deposited in a bank or used for third-party payments.
"Instant loan check" or "live check" does not include a check, draft,
or any other negotiable instrument provided in response to an
application for credit or as a means of access to an existing loan or
extension of credit, including a home equity or personal line of
credit.
(b) No person shall produce, advertise, offer, sell, distribute,
or otherwise transfer for use in this state any live check unless the
document bears the following phrase printed in 12-point type on the
front of the document: "THIS IS A LOAN OR AN EXTENSION OF CREDIT. YOU
WILL PAY CHARGES."
(c) Live checks shall only be negotiable for a period of 30 days
after the date printed on the live check. Printed material
accompanying the live check shall advise the consumer to void and
destroy the live check if it is not going to be negotiated.
(d) Loan solicitations shall be mailed in envelopes with no
indication that a negotiable instrument is contained in the mailing.
Envelopes shall be marked with "do not forward" instructions to the
postal service in the event that the intended addressee is no longer
at the location.
(e) Any loan solicitation made through a live check shall be
honored in the full amount by the issuer unless the account on which
the solicitation is made is closed by the consumer prior to the date
the check is cashed.
(f) In the event that a live check is stolen or incorrectly
received by someone other than the intended payee, and the live check
is cashed or otherwise negotiated based upon fraud or
misrepresentation by someone other than the intended payee, the
following safeguards for the consumer shall apply:
(1) The creditor, upon receipt of notification that the consumer
did not negotiate the live check and is a victim of identity theft as
defined in Section 1798.92 of the Civil Code, shall provide, and the
consumer may complete, a statement confirming that the consumer did
not deposit, cash, or otherwise negotiate the live check.
(2) Upon completion of the confirmation statement by the consumer,
the consumer who was the intended payee shall have no liability for
the loan obligation, absent any fraud by that consumer.
(3) Upon receipt of notification that the consumer did not
negotiate the live check and is a victim of identity theft as defined
in Section 1798.92 of the Civil Code, the creditor shall take
appropriate actions set forth in Sections 1785.25 and 1785.26 of the
Civil Code.
(g) The commissioner may, after appropriate notice and opportunity
for hearing, by order levy administrative penalties against a
licensee who violates this section, and the licensee shall be liable
for administrative penalties of no more than two thousand five
hundred dollars ($2,500) for each willful violation. Any hearing
shall be held in accordance with the Administrative Procedure Act
(Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code), and the commissioner shall have all
the powers granted under the act. The remedy available under this
subdivision is in addition to any other remedies available to the
commissioner under this division that may be employed to enforce the
provisions of this section.
(h) Nothing in this section shall preclude the application of any
section or rule under this division.
22345. (a) Any person who violates any provision of Section 670 of
the John Warner National Defense Authorization Act for Fiscal Year
2007 (Public Law 109-364) or any provision of Section 232 of Title 32
of the Code of Federal Regulations, as published on August 31, 2007,
in Volume 72 of the Federal Register, violates this chapter.
(b) With respect to any consumer loans covered by Section 670 of
the John Warner National Defense Authorization Act for Fiscal Year
2007 (Public Law 109-364) or by Section 232 of Title 32 of the Code
of Federal Regulations, as published on August 31, 2007, in Volume 72
of the Federal Register, a person that does not market consumer
loans to, or does not extend those loans to, covered borrowers, as
that term is defined under Section 232 of Title 32 of the Code of
Federal Regulations, as published on August 31, 2007, in Volume 72 of
the Federal Register, shall not be in violation of Section 394 of
the Military and Veterans Code.
(c) This section shall become operative on October 1, 2007.
22346. Any licensee that violates any provision of any of the
following federal acts or regulations violates this division:
(a) The federal Real Estate Settlement Procedure
22300. No licensee shall directly or indirectly charge, contract
for, or receive any interest or charge of any nature unless a loan is
made.
22301. (a) No licensee shall directly or indirectly charge,
contract for, or receive any interest or charge of any nature with
respect to a loan of five thousand dollars ($5,000) or more unless
the loan is made.
(b) Notwithstanding subdivision (a), whenever a loan of five
thousand dollars ($5,000) or more is not consummated because of the
borrower's failure to disclose outstanding liens or other information
essential to making the loan or solely because of the borrower's
failure to complete the loan in accordance with the loan application,
a licensee may charge, contract for, and receive an amount equal to
the actual expenses incurred by the licensee in connection with the
preparation for the loan.
22302. (a) Section 1670.5 of the Civil Code applies to the
provisions of a loan contract that is subject to this division.
(b) A loan found to be unconscionable pursuant to Section 1670.5
of the Civil Code shall be deemed to be in violation of this division
and subject to the remedies specified in this division.
22303. Every licensee who lends any sum of money may contract for
and receive charges at a rate not exceeding the sum of the following:
(a) Two and one-half percent per month on that part of the unpaid
principal balance of any loan up to, including, but not in excess of
two hundred twenty-five dollars ($225).
(b) Two percent per month on that portion of the unpaid principal
balance in excess of two hundred twenty-five dollars ($225) up to,
including, but not in excess of nine hundred dollars ($900).
(c) One and one-half percent per month on that part of the unpaid
principal balance in excess of nine hundred dollars ($900) up to,
including, but not in excess of one thousand six hundred fifty
dollars ($1,650).
(d) One percent per month on any remainder of such unpaid balance
in excess of one thousand six hundred fifty dollars ($1,650).
This section does not apply to any loan of a bona fide principal
amount of two thousand five hundred dollars ($2,500) or more as
determined in accordance with Section 22251.
22304. As an alternative to the charges authorized by Section
22303, a licensee may contract for and receive charges at the greater
of the following:
(a) A rate not exceeding 1.6 percent per month on the unpaid
principal balance.
(b) A rate not exceeding five-sixths of 1 percent per month plus a
percentage per month equal to one-twelfth of the annual rate
prevailing on the 25th day of the second month of the quarter
preceding the quarter in which the loan is made, as established by
the Federal Reserve Bank of San Francisco, on advances to member
banks under Sections 13 and 13a of the Federal Reserve Act, as now in
effect or hereafter from time to time amended, or if there is no
single determinable rate for advances, the closest counterpart of
this rate as shall be determined by the Commissioner of Financial
Institutions. Charges shall be calculated on the unpaid principal
balance.
(c) This section does not apply to any loan of a bona fide
principal amount of two thousand five hundred dollars ($2,500) or
more as determined in accordance with Section 22251.
22305. In addition to the charges authorized by Section 22303 or
22304, a licensee may contract for and receive an administrative fee,
which shall be fully earned immediately upon making the loan, with
respect to a loan of a bona fide principal amount of not more than
two thousand five hundred dollars ($2,500) at a rate not in excess of
5 percent of the principal amount (exclusive of the administrative
fee) or fifty dollars ($50), whichever is less, and with respect to a
loan of a bona fide principal amount in excess of two thousand five
hundred dollars ($2,500), at an amount not to exceed seventy-five
dollars ($75). No administrative fee may be contracted for or
received in connection with the refinancing of a loan unless at least
one year has elapsed since the receipt of a previous administrative
fee paid by the borrower. Only one administrative fee may be
contracted for or received until the loan has been repaid in full.
For purposes of this section, "bona fide principal amount" shall be
determined in accordance with Section 22251.
22306. No amount in excess of that allowed by this article shall be
directly or indirectly charged, contracted for, or received by any
person, and the total charges of the finance lender and broker and
any other person in the aggregate shall not exceed the maximum rate
provided for in this article.
22307. (a) Except as provided in Section 22305 and Article 4
(commencing with Section 22400), all charges on loans made under this
division shall be computed and paid only as a percentage per month
of the unpaid principal balance or portions thereof, and shall be so
expressed in every obligation signed by the borrower. The charges on
loans shall be computed on the basis of the number of days actually
elapsed. For the purpose of these computations, a month is any period
of 30 consecutive days.
(b) The loan contract shall provide for payment of the aggregate
amount contracted to be paid in substantially equal periodical
installments, the first of which shall be due not less than 15 days
nor more than one month and 15 days from the date the loan is made.
This subdivision shall not apply to a loan made to a graduate student
at an accredited college or university while the student is actively
pursuing a study program leading to a postbaccalaureate degree, or
to a student loan made by an eligible lender under the Higher
Education Act of 1965, as amended (20 U.S.C. Sec. 1070 et seq.), or
to a student loan made pursuant to the Public Health Service Act, as
amended (42 U.S.C. Sec. 294 et seq.).
(c) This section shall not apply to open-end loans.
22308. Notwithstanding Section 22307, a licensee may contract for
and receive charges on the unpaid principal balance at a single
annual percentage rate, applied on the basis of the number of days
actually elapsed, if the annual rate would produce a finance charge
at the maturity of the contract not in excess of the finance charge
resulting from the application of the graduated rates specified in
Section 22303, when the loan is paid according to its terms, and
charges are computed on the basis that a month is any period of 30
consecutive days, as provided in Section 22307; provided, however,
that if prepayment in full occurs on or before the third installment
date, all charges shall be recomputed as a percentage per month of
the unpaid principal balance or portions thereof, based on the number
of days actually elapsed.
22309. Except as provided in Section 22305 and Article 4
(commencing with Section 22400), no charges on loans made pursuant to
this division shall be paid, deducted, or received in advance, or
compounded. However, if part or all of the consideration for a new
loan contract is the unpaid balance of a prior loan, the principal
amount payable under the new loan contract may include any unpaid
interest that has accrued on the prior loan. The unpaid principal
balance of a precomputed loan is the balance due after refund or
credit of unearned interest as provided in Section 22400. At the time
of making the loan, the licensee shall deliver to the borrower, or,
at the direction of the borrower, deliver to another person, an
amount equal to the face value of the loan and the note evidencing
the loan.
22310. (a) Except for a rebate or refund pursuant to any
administrative, civil, or criminal action, or any act of the
commissioner, a rebate or refund required to be made upon payment in
full of a loan pursuant to this division need not be made if the
aggregate of all rebates or refunds required in connection with a
loan is less than one dollar ($1).
(b) No licensee shall contract for or receive any payment required
in connection with a loan for the purpose of avoiding a rebate or
refund of less than one dollar ($1).
22311. No person in connection with or incidental to the making of
any loan regulated by this division may require the borrower to
contract for purchase, or agree to purchase, any other thing in
connection with the loan. A policy of insurance of the type specified
in Section 22313 and credit life and disability insurance is not
prohibited by this section. A policy of insurance of the type defined
by subdivision (a) of Section 12640.02 of the Insurance Code shall
not be deemed to be a collateral sale, purchase, or agreement within
the terms of this section or of Section 22201 or 22312.
22312. No person in connection with or incidental to the making of
a loan shall require the borrower to enter into any collateral sales
agreements or contracts, other than the contract of pledge,
assignment, or mortgage or personal property, or if otherwise
permitted by this division, the deed of trust, mortgage, or lien on
real property, by the borrower to the lender as security for the
repayment of the loan and charges on the loan. Insurance of the type
specified in Section 22313, credit life insurance, and credit
disability insurance are not prohibited by this section.
22313. Insurance on tangible personal or real property offered as
security shall not be deemed to be a collateral sale, purchase, or
agreement within the terms of Section 22201, 22311, or 22312, when
all the following requirements are met:
(a) The insurance is sold at standard rates through licensed
insurance brokers or agents.
(b) The policy is written to cover the property that is offered as
security for a loan.
(c) The property is reasonably insured against loss for a
reasonable term, which may be up to the term of the loan.
(d) The policy relating to personal property is made payable to
the borrower or any member of his or her family even though the
customary mortgagee clause is attached or the mortgagee is a
coassured.
(e) Except in the case of purchase money encumbrances, the amount
of title insurance shall not exceed the principal amount of the loan
that is secured by a deed of trust, mortgage, or lien on the real
property that is the subject of the policy of title insurance.
(f) The policy of title insurance insures the lender or is made
payable jointly to the lender and the borrower as their interests may
appear.
(g) Title insurance is placed through a title insurance company,
duly authorized to do business in the state in which the real
property is located, at rates comparable to rates being used by other
title insurance companies duly authorized to do business in that
state.
(h) Title insurance is placed in connection with the renewal or
extension of a loan only when the additional cash advance is at least
one thousand dollars ($1,000).
This section does not apply to any loan of a bona fide principal
amount of ten thousand dollars ($10,000) or more, or to a duly
licensed finance lender in connection with any such loan or loans as
determined in accordance with Section 22251.
22314. (a) Credit insurance shall not be deemed to be a collateral
sale, purchase, or agreement within the terms of Section 22201,
22311, or 22312 when the insurance is provided in accordance with the
provisions of the Insurance Code and this section. As used in this
division:
(1) "Credit insurance" means credit life, disability, and
loss-of-income insurance, or any combination of these coverages.
(2) "Credit life insurance" and "credit disability insurance" have
the same meanings as defined in Section 779.2 of the Insurance Code.
(3) "Credit loss-of-income insurance" means insurance issued to
provide indemnity for payments becoming due on a specific loan or
other credit transaction while the debtor is involuntarily
unemployed, as defined in the policy.
(b) A licensee may provide credit insurance with the borrower's
consent, the form to be approved by the Insurance Commissioner, and a
copy, together with evidence of its approval by the Insurance
Commissioner, and a copy of the schedule of rates together with
evidence of its approval by the Insurance Commissioner, to be filed
with the commissioner prior to the offer or sale of the credit
insurance and in an amount not in excess of the amount of the
indebtedness, and, with respect to credit life or disability
insurance, may collect from the borrower an amount not in excess of
that permitted by or pursuant to Section 779.36 of the Insurance
Code.
(c) If the loan is prepaid in full by cash, a new loan,
refinancing, or otherwise (except by that insurance) before the final
installment date, the borrower shall receive a rebate of that amount
computed in accordance with the formula approved by the Insurance
Commissioner pursuant to Section 779.14 of the Insurance Code.
(d) When charges for the loan are precomputed in accordance with
Section 22400, any permitted deferment charge may be computed on the
combined total of the precomputed charge and the credit insurance
charge. Only one deferment charge may be collected in connection with
any loan contract, irrespective of the number of borrowers, and only
one borrower need be insured. The amount of the deferment charge may
be deducted from the principal of the loan.
(e) If life or disability insurance is provided, and if the
insured borrower dies or becomes disabled during the term of the loan
contract, the insurance shall be sufficient to pay the total amount
due on the loan, excluding unearned charges, outstanding on the date
of death, or all amounts that become due on the loan during the
period of disability, as the case may be, without any exception,
reservation, or limitation, subject, however, to the provisions of
Section 22315.
(f) Any credit insurance provided shall be in force as soon as the
loan is made. A licensee shall not require credit insurance as a
condition of making a loan.
(g) If a borrower procures credit insurance by or through a
licensee, the statement required by Section 22338 shall disclose the
cost of the credit insurance to the borrower, and the licensee shall
deliver or cause to be delivered to the borrower a copy of the
policy, certificate, or other evidence thereof, within a reasonable
time. In the event a licensee provides credit disability or
loss-of-income insurance pursuant to this division, the licensee
shall also deliver an understandable written statement to the
borrower detailing the conditions under which the borrower will be
entitled to make a claim under the insurance policy and the procedure
to be followed in making the claim. This statement shall be first
approved by the Insurance Commissioner.
(h) The amount charged to the borrower for credit life or
disability insurance shall not exceed the amount established by or
pursuant to Section 779.36 of the Insurance Code.
(i) Nothing in this article shall prevent a licensee from selling
insurance as other business if authorized by Section 22154.
This section does not apply to any loan of a bona fide principal
amount of ten thousand dollars ($10,000) or more, or to a duly
licensed finance lender in connection with any such loan or loans as
determined in accordance with Section 22251.
22315. (a) Credit disability insurance written pursuant to Section
22314 shall not provide indemnity against the risk that the borrower
will become disabled for a period of less than 14 days. The insurance
may provide indemnity for any single period of continuous disability
of 14 days or longer, after which the risk may become compensable.
The insurance may be offered with retroactive coverage to an earlier
date based upon the disability having continued for a period stated
in the policy, but if insurance with retroactive coverage is offered,
it shall also be offered without retroactive coverage, and the
premium rate for each coverage shall be separately stated in writing
to the borrower.
(b) If insurance with retroactive coverage is provided, the
coverage shall provide for a prorated payment based upon the fraction
of the month during which the insured is disabled, provided that the
insured is continuously disabled during the waiting period set forth
in the policy. If insurance without retroactive coverage is
provided, the coverage shall provide for a prorated payment based
upon the fraction of the month during which the insured is disabled,
after first excluding the elimination period set forth in the policy.
For the purpose of this subdivision, a month is any period of 30
consecutive days.
(c) Credit disability insurance, if made available by a licensee,
shall be available on a monthly or annual premium basis, and the
premium by the month shall not exceed a pro rata relationship to the
annual premium. Credit disability insurance need not be offered for a
period less than the term of the loan to which it is applicable, and
no credit disability insurance shall be written for a period in
excess of the term of the loan to which it is applicable.
(d) The monthly disability benefit payable with respect to an
open-end loan shall not exceed the monthly payment computed pursuant
to Section 22453 on the outstanding balance at the time disability is
incurred.
This section does not apply to any loan of a bona fide principal
amount of ten thousand dollars ($10,000) or more, as determined in
accordance with Section 22251.
22316. A licensee may collect the cost of a lot book report
purchased in lieu of the title insurance provided for in Section
22313. The cost is not included in charges as defined in this
division or in determining the maximum charges that may be made under
this article.
22317. On any loan made that is secured by real property, an
appraisal fee not to exceed the actual cost of the appraisal may be
charged by the licensee if a written appraisal is provided to the
licensee by a qualified appraiser. Only one fee for appraising the
same real property may be collected unless the borrower has obtained
a new or additional loan and more than one year has elapsed since the
prior appraisal. The fee is not included in charges as defined in
this division or in determining the maximum charges that may be made
under this article.
22317.2. (a) A licensee may collect a fee for use of an automated
valuation model result prepared by a third party not to exceed the
actual cost paid to the third party for a written automated valuation
model result in lieu of the appraisal provided for in Section 22317.
The borrower shall not be charged for both an automated valuation
model result and an appraisal as defined in Section 22317 for the
same property in a single transaction. Only one fee for providing an
automated valuation model result or an appraisal for the same real
property may be collected unless the borrower has obtained a new or
additional loan and more than one year has elapsed since the prior
delivery of an automated valuation model result or an appraisal.
However, if a fee for an automated valuation model result has been
paid, an appraisal fee minus the amount that has been paid by the
borrower for the automated valuation model result may be charged for
an appraisal for the same real property within one year if the
borrower has obtained a new or additional loan. The fee is not
included in charges as defined in this division or in determining the
maximum charges that may be made under this article.
(b) A licensee in a loan transaction secured by real property
shall provide notice as described in this section to a borrower of
the borrower's right to receive a copy of the automated valuation
model result, provided he or she has paid a fee for the automated
valuation model result. A borrower's written request for a copy of an
automated valuation model result shall be received by the licensee
no later than 90 days after (1) the licensee has provided notice of
the action taken on the application, including a notice of
incompleteness, or (2) the application has been withdrawn.
(c) The licensee shall mail or deliver a copy of an automated
valuation model result within 15 days after receiving a written
request from the borrower, or within 15 days after receiving the
automated valuation model result, whichever occurs later.
(d) Where the loan is proposed to be secured by real property, the
notice of the borrower's right to a copy of the automated valuation
model result shall be given in at least 10-point boldface type, as a
separate document in a form that the borrower may retain, and no
later than 15 days after the licensee receives the written
application. The notice shall specify that the borrower's request for
the automated valuation model result must be in writing and must be
received by the licensee no later than 90 days after the licensee
provides notice of the action taken on the application or a notice of
incompleteness, or in the case of a withdrawn application, 90 days
after the withdrawal. The notice shall also include the following
statement: "An automated valuation model is not an appraisal. It is a
computerized property valuation system that is used to derive a real
property value." An address to which the request should be sent
shall be specified in the notice. Release of the automated valuation
model result to the borrower may be conditioned upon payment of the
fee.
(e) This section does not apply to automated valuation model
results obtained by licensees on property owned by the licensee, nor
to automated valuation model results obtained by the licensee in
anticipation of modifying any existing loan agreement if the licensee
does not charge for the use of the automated valuation model result.
(f) For purposes of this section, an "automated valuation model"
is a computerized property valuation system that is used to derive a
real property value.
(g) Nothing in this section authorizes the use of an automated
valuation model result in lieu of an appraisal that is required under
state or federal law.
22317.5. On any loan secured by real property, a licensee may not
do either of the following:
(a) Fail to disburse funds in accordance with a commitment to make
a loan that is accepted by the applicant.
(b) Intentionally delay the closing of a loan for the sole purpose
of increasing interest, costs, fees, or charges payable by the
borrower.
22318. On any loan made that is secured by real property, an escrow
fee of a reasonable amount may be charged. The fee shall be
considered reasonable when paid to a company licensed to do business
under the Escrow Law (Division 6 (commencing with Section 17000)), or
any person exempted by the Escrow Law, provided that the fees are
comparable to fees charged by escrow companies authorized to do
business in this state. The fee is not included in charges defined in
this division in determining the applicable maximum charges that may
be made under this article.
22319. On any loan that is secured by real property, the fee to be
paid to the trustee for reconveyance of the trust deed may be
collected by the licensee for transmittal to the trustee. The fee is
not included in charges defined in this division or in determining
the applicable maximum charges that may be made under this article.
22320. With respect to a loan under this division, a fee not to
exceed fifteen dollars ($15) for the return by a depository
institution of a dishonored check, negotiable order of withdrawal, or
share draft may be charged and collected by the licensee. The fee is
not included in charges defined in this division or in determining
the applicable maximum charges that may be made under this article.
22320.5. (a) A licensee may contract for and receive a delinquency
fee not in excess of one of the following amounts:
(1) For a period in default of not less than 10 days, an amount
not in excess of ten dollars ($10).
(2) For a period in default of not less than 15 days, an amount
not in excess of fifteen dollars ($15).
(b) The delinquency fee may not be collected more than once for
the same default and may be collected at the time of the default or
at any time thereafter. If the delinquency fee is deducted from any
payment received after default occurs, and the deduction results in
the default of a subsequent installment, no fee may be collected for
the resulting default. The delinquency fee under this section is not
included in charges defined in this division or in determining
applicable maximum charges that may be made under this article.
(c) For open-end loans made under Article 5 (commencing with
Section 22450), a licensee shall not collect or receive the
delinquency fee set forth in subdivision (a) unless there is a
minimum of 20 days, inclusive, between the monthly billing date and
the date upon which the minimum payment is due, exclusive of the
applicable grace period provided in subdivision (a).
(d) This section shall not apply to precomputed loans as described
in Section 22400.
22321. If credit loss-of-income insurance is provided pursuant to
this division, it shall be subject to the following conditions:
(a) The insurance shall provide indemnity in accordance with the
terms of the policy after any single period of continuous
unemployment of 45 days or less as determined by the policy, after
which benefits shall commence. The insurance may be offered with
retroactive coverage to an earlier date based upon unemployment
having continued for the period stated in the policy.
(b) The statement required by Section 22337 shall include
disclosure of the term of the coverage, the conditions of coverage,
the benefits to be paid, and the exclusions from coverage.
(c) The borrower shall sign a certificate of voluntary acceptance
of any credit loss-of-income insurance purchased. The certificate
shall state in boldface type that is larger than the type used in the
loan contract that purchase of the insurance is not a necessary
condition of receiving the loan, and that the insurance may be
canceled by the borrower at any time within 15 days after it goes
into effect. If the borrower cancels the insurance within 15 days, a
full refund shall be made of the premium paid.
(d) The minimum benefit shall be payment up to the agreed amount
on not less than four benefit payments, as stated in the policy,
which accrue during a covered period of unemployment, except that
during the first 60 days after inception of the policy, the minimum
benefit may be payment up to the agreed amount of one-half the number
of benefit payments, as stated in the policy, which accrue during a
covered period of unemployment. The maximum benefits shall be
established in the contract of insurance.
(e) If combination credit disability and credit loss-of-income
coverage is offered, credit disability and credit loss-of-income
coverage shall also be offered separately.
(f) Benefits may not be denied because the insured cannot
establish a valid claim for unemployment compensation benefits under
Part 1 (commencing with Section 100) of Division 1 of the
Unemployment Insurance Code solely because the former employer was
not required to contribute to the State Unemployment Fund.
(g) If insurance with retroactive coverage is provided, the
coverage shall provide for a prorated payment based upon the fraction
of the month during which the insured is unemployed, provided that
the insured is continuously unemployed during the waiting period set
forth in the policy. If insurance without retroactive coverage is
provided, the coverage shall provide for a prorated payment based
upon the fraction of the month during which the insured is
unemployed, after first excluding the elimination period set forth in
the policy. For the purpose of this subdivision, a month is any
period of 30 consecutive days.
(h) When unemployment continues for a number of months equal to or
greater than the maximum number of benefit payments stated in the
policy, the final payment shall be equal to the difference between a
benefit payment and the initial prorated payment.
(i) As used in this section, "benefit payment" means payment of an
amount equal to a loan repayment installment or a maximum amount
established in the contract of insurance, whichever is less.
(j) The minimum benefit payment offered may not be less than the
amount of a loan repayment installment unless the borrower or
borrowers have two or more sources of income. If the maximum benefit
payment offered is less than the amount of a loan repayment
installment, the borrower shall also be offered coverage in which the
maximum benefit payment is equal to the amount of a loan repayment
installment.
This section does not apply to any loan of a bona fide principal
amount of ten thousand dollars ($10,000) or more, or to a duly
licensed finance lender in connection with any such loan or loans as
determined in accordance with Section 22251.
22322. A loan lawfully made outside the state may be enforced in
this state as to the unpaid principal balance of the loan together
with the interest, consideration, brokerage, and all other charges,
to the extent of but not to exceed the unpaid principal balance and
the aggregate amount of interest, consideration, brokerage, and all
other charges permitted by this division in connection with a loan of
the same amount made within this state.
22323. Any person who collects or attempts to collect in this state
the unpaid principal balance of a loan made outside the state and a
greater aggregate amount of interest, consideration, brokerage, and
all other charges in connection with the loan than is permitted by
this division in connection with a loan of the same amount made
within this state, is subject to the provisions of this division.
22324. Any person who contracts for or negotiates in this state a
loan to be made outside the state for the purpose of evading or
avoiding the provisions of this division is subject to the provisions
of this division.
22325. Every licensee shall display prominently in each licensed
place of business a full and accurate schedule of the charges to be
made and the method of computing the charges. The schedule is subject
to the approval of the commissioner.
22326. No person, except as authorized by this division, shall
directly or indirectly charge, contract for, or receive any interest,
discount, or consideration greater than the lender would be
permitted by law to charge if he or she were not a licensee
hereunder, upon the loan, use, or forbearance of money, goods, or
things in action, or upon the loan, use, or sale of credit. This
section applies to any person, who by any device, subterfuge, or
pretense charges, contracts for, or receives greater interest,
consideration, or charges than is authorized by this division for any
loan, use, or forbearance of money, goods, or things in action or
for any loan, use, or sale of credit.
22327. No licensee shall knowingly induce any borrower to split up
or divide any loan with any other licensee. No licensee shall induce
or permit any borrower to be or to become obligated directly or
indirectly, or both, under more than one contract of loan at the same
time with the same licensee for the purpose or with the result of
obtaining a higher rate of charge than would otherwise be permitted
by this article, except as otherwise required by the federal Equal
Credit Opportunity Act (15 U.S.C. Sec. 1691 et seq.; P.L. 93-495) and
Regulation B promulgated by the Board of Governors of the Federal
Reserve System (12 C.F.R. 202 et seq.). For the purpose of this
section, "borrower" includes any husband and wife, whether jointly or
severally obligated.
22328. (a) This section applies to a loan secured in whole or in
part by a lien on a motor vehicle as defined by subdivision (k) of
Section 2981 of the Civil Code.
(b) Any provision in any loan contract to the contrary
notwithstanding, at least 15 days' written notice of intent to
dispose of a repossessed or surrendered motor vehicle must be given
to all persons liable on the loan. The notice shall be personally
served or shall be sent by certified mail, return receipt requested,
or first-class mail, postage prepaid, directed to the last known
address of the persons liable on the loan. Except as otherwise
provided in Section 2983.8 of the Civil Code, those persons shall be
liable for any deficiency after disposition of the repossessed or
surrendered motor vehicle only if the notice prescribed by this
section is given within 60 days of repossession or surrender and does
all of the following:
(1) States that those persons shall have a right to redeem the
motor vehicle by paying in full the indebtedness evidenced by the
loan note until the expiration of 15 days from the date of giving or
mailing the notice, provides an itemization of the loan balance and
of any costs and fees authorized by this division, and states the
computation or estimate of the amount of any credit for unearned
finance charges or canceled insurance as of the date of the notice.
(2) States either that there is a conditional right to reinstate
the loan until the expiration of 15 days from the date of giving or
mailing the notice and all the conditions precedent thereto or that
there is no right of reinstatement and provides a statement of
reasons therefor.
(3) States that, upon written request, the licensee shall extend
for an additional 10 days the redemption period or, if entitled to
the conditional right of reinstatement, both the redemption and
reinstatement periods. The licensee shall provide the proper form for
applying for these extensions with the substance of the form being
limited to the extension request, spaces for the requesting party to
sign and date the form, and instructions that it must be personally
served or sent by certified or registered mail, return receipt
requested, to a person or office and address designated by the
licensee and received before the expiration of the initial redemption
and reinstatement periods.
(4) Discloses the place at which the motor vehicle will be
returned to the persons liable on the loan upon redemption or
reinstatement.
(5) Designates the name and address of the person or office to
whom payment shall be made.
(6) States the licensee's intent to dispose of the motor vehicle
upon the expiration of 15 days from the date of giving or mailing the
notice, or if by mail and either the place of deposit in the mail or
the place of address is outside of this state, the period shall be
20 days instead of 15 days, and further, that upon written request to
extend the redemption period and any applicable reinstatement period
for 10 days, the licensee shall, without further notice, extend the
period accordingly.
(7) Informs the persons liable on the loan that, upon written
request, the licensee shall furnish a written accounting regarding
the disposition of the motor vehicle as provided for in subdivision
(c). The licensee shall advise them that the request must be
personally served or sent by first-class mail, postage prepaid, or
certified mail, return receipt requested, to a person or office and
address designated by the licensee.
(8) Includes a notice, in at least 10-point bold type if the
notice is printed, reading as follows:
"NOTICE: YOU MAY BE SUBJECT TO SUIT AND LIABILITY IF THE AMOUNT
OBTAINED UPON DISPOSITION OF THE VEHICLE IS INSUFFICIENT TO PAY THE
LOAN BALANCE AND ANY OTHER AMOUNTS DUE."
(c) Unless automatically provided to the borrower within 45 days
after the disposition of the motor vehicle, the licensee shall
provide a written accounting regarding the disposition to any person
liable on the loan within 45 days after their written request, if the
request is made within one year after the disposition. The
accounting shall itemize:
(1) The gross proceeds of the disposition.
(2) The reasonable and necessary costs and fees authorized by this
division incurred in repossessing the motor vehicle.
(3) The satisfaction of indebtedness secured by any subordinate
lien or encumbrance on the motor vehicle if written notification of
demand therefor is received before distribution of the proceeds is
completed. If requested by the licensee, the holder of a subordinate
lien or encumbrance shall seasonably furnish reasonable proof of its
interest, and unless it does so, the seller or holder need not comply
with its demand.
(d) In all sales that result in a surplus, the licensee shall
furnish an accounting as provided in subdivision (c) whether or not
requested by the borrower. The surplus shall be returned to the
borrower within 45 days after the sale is conducted.
22329. (a) This section applies to a loan secured in whole or in
part by a lien on a motor vehicle as defined by subdivision (k) of
Section 2981 of the Civil Code.
(b) In the absence of default in the performance of any of the
borrower's obligations under the loan, the licensee may not
accelerate the maturity of any part or all of the amount due
thereunder or repossess the motor vehicle.
(c) If, after default by the borrower, the licensee repossesses or
voluntarily accepts surrender of the motor vehicle, any person
liable on the loan shall have a right to reinstate the loan and the
licensee shall not accelerate the maturity of any part or all of the
loan prior to the expiration of the right to reinstate, unless the
licensee reasonably and in good faith determines that:
(1) The borrower or any other person liable on the loan by
omission or commission intentionally provided false or misleading
information of material importance on his or her credit application.
(2) The borrower or any other person liable on the loan has
concealed the motor vehicle or removed it from the state in order to
avoid repossession.
(3) The borrower or any other person liable on the loan has
committed or threatens to commit acts of destruction, or has failed
to take care of the motor vehicle in a reasonable manner, so that the
motor vehicle has or may become substantially impaired in value.
(d) Exercise of the right to reinstate the loan shall be limited
to once in any 12-month period and twice during the term of the loan.
(e) The provisions of this subdivision shall govern the method by
which a loan shall be reinstated with respect to curing events of
default that were grounds for repossession or that occurred
subsequent to repossession.
(1) Where the default is the result of the borrower's failure to
make any payment due under the loan, the borrower or any other person
liable on the loan shall make the defaulted payments and pay any
applicable delinquency charges.
(2) Where the default is the result of the borrower's failure to
keep and maintain the motor vehicle free from all encumbrances and
liens of every kind, the borrower or any person liable on the loan
shall either satisfy all the encumbrances and liens or, in the event
the licensee satisfies the encumbrances and liens, the borrower or
any other person liable on the loan shall reimburse the licensee for
all reasonable costs and expenses incurred therefor.
(3) Where the default is the result of the borrower's failure to
keep and maintain insurance on the motor vehicle, the borrower or any
other person liable on the loan shall either obtain the insurance
or, in the event the licensee has obtained the insurance, the
borrower or any other person liable on the loan shall reimburse the
licensee for premiums paid and all reasonable costs and expenses
incurred therefor.
(4) Where the default is the result of the borrower's failure to
perform any other obligation under the loan, unless the licensee has
made a good faith determination that the default is so substantial as
to be incurable, the borrower or any other person liable on the loan
shall reimburse the licensee for all reasonable costs and expenses
incurred therefor.
(5) Additionally, the borrower or any other person liable on the
loan shall reimburse the licensee for actual and necessary fees in an
amount not exceeding the amount specified in subdivision (f) of
Section 22202 paid in connection with the repossession of a motor
vehicle to a repossession agency licensed pursuant to Chapter 11
(commencing with Section 7500) of Division 3 of the Business and
Professions Code, and actual fees in conformity with Sections 26751
and 41612 of the Government Code in an amount not exceeding the
amount specified in those sections of the Government Code.
(f) If the licensee denies the right to reinstatement under
subdivision (c) or paragraph (4) of subdivision (e), the licensee
shall have the burden of proof that the denial was justified in that
it was reasonable and made in good faith. If the licensee fails to
sustain the burden of proof, the licensee shall not be entitled to a
deficiency.
22329.5. A licensee, or the agent of a licensee, that has received
a notice pursuant to Section 7507.6 of the Business and Professions
Code, shall not make a subsequent assignment to skip trace, locate,
or repossess the vehicle without simultaneously, and in the same
manner by which the assignment is given, advising the assignee of the
assignment of the information contained in the notice. As used in
this section, "assignment" has the same meaning set forth in Section
7500.1 of the Business and Professions Code.
22330. No licensee shall take a deed of trust, mortgage, or lien
upon real property as security for any loan made under this division,
except any lien as is created by law upon the recording of an
abstract of judgment. This section shall not apply to any loan of a
bona fide principal amount of five thousand dollars ($5,000) or more
as determined in accordance with Section 22251.
22331. No licensee shall take any confession of judgment or any
power of attorney, except a power of attorney taken to effectuate the
transfer of the ownership of any motor vehicle or mobilehome at the
time of making the loan.
22332. No licensee shall take any note or promise to pay that does
not accurately disclose the actual amount of the loan, the time for
which it is made, and the agreed rate of charge or the annual
percentage rate pursuant to Regulation Z promulgated by the Board of
Governors of the Federal Reserve System.
22333. No licensee shall take any instrument in which blanks are
left to be filled in after execution.
22334. No licensee shall enter into any contract for a loan that
provides for a scheduled repayment of principal over more than the
maximum terms set forth below opposite the respective size of loans.
Principal amount of loan Maximum term
Less than $500............. 24 months and 15 days
$500 but less than $1,500.. 36 months and 15 days
$1,500 but less than 48 months and 15 days
$3,000.....................
$3,000 but less than 60 months and 15 days
$5,000.....................
This section does not apply to open-end loans, or to a student
loan made by an eligible lender under the Higher Education Act of
1965, as amended (20 U.S.C. Sec. 1070 et seq.), or to a student loan
made pursuant to the Public Health Service Act, as amended (42 U.S.C.
Sec. 294 et seq.).
22335. The payment by any person in money, credit, goods, or things
in action as consideration for any sale or assignment of, or order
for, the payment of wages, salary, commissions, or other compensation
for services, whether earned or to be earned, is, for the purposes
of regulation under this division, a loan secured by the assignment.
The amount by which the assigned compensation exceeds the amount of
the consideration actually paid is interest and charges upon or for
the loan, calculated from the date of payment to the date the
compensation is payable.
This section shall not be construed as modifying or affecting
existing statutes governing wage assignments in the state, or as
authorizing those assignments.
22336. This article does not prohibit any licensee from contracting
for, collecting, or receiving the following:
(a) The statutory fee paid by the licensee to any public officer
for acknowledging, filing, recording, or releasing in any public
office any instrument securing the loan or executed in connection
with the loan.
(b) Premiums paid by the licensee of the kind and to the extent
described in paragraph (2) of subsection (e) of Section 226.4 of
Regulation Z promulgated by the Board of Governors of the Federal
Reserve System (12 C.F.R. 226).
These amounts are not included in determining the maximum charges
which may be made under this article.
22337. Each licensed finance lender shall:
(a) Deliver or cause to be delivered to the borrower, or any one
thereof, at the time the loan is made, a statement showing in clear
and distinct terms the name, address, and license number of the
finance lender and the broker, if any. The statement shall show the
date, amount, and maturity of the loan contract, how and when
repayable, the nature of the security for the loan, if any, and the
agreed rate of charge or the annual percentage rate pursuant to
Regulation Z promulgated by the Board of Governors of the Federal
Reserve System (12 C.F.R. 226).
(b) Obtain from the borrower a signed statement as to whether any
person has performed any act as a broker in connection with the
making of the loan. If the statement discloses that a broker or other
person has participated, then the finance lender shall obtain a full
statement of all sums paid or payable to the broker or other person.
The finance lender shall keep these statements for a period of three
years from and after the date the loan has been paid in full, or has
matured according to its terms, or has been charged off.
(c) Permit payment to be made in advance in any amount on any
contract of loan at any time. The licensee may apply the payment
first to any agreed prepayment penalty, then to all charges due,
including charges at the agreed rate or rates up to the date of
payment, not to exceed the applicable maximum rate permitted by this
article.
(d) Deliver or cause to be delivered to the person making any cash
payment, or to the person who requests a receipt at the time of
making any payment, at the time payment is made on account of any
loan, a plain and complete receipt showing the total amount received
and identifying the loan contract upon which the payment is applied.
(e) Upon repayment of any loan in full, release all security for
the loan, endorse and return any certificate of ownership, and cancel
or plainly mark "paid" and return to the borrower or person making
final payment, any note, mortgage, security agreement, trust deed,
assignment, or order signed by the borrower, or an optical image
reproduction thereof, except those documents that are a part of the
court record in any action, or that have been delivered to a third
person for the purpose of carrying out their terms, or a security
agreement that secures any other indebtedness of a borrower to the
licensee, or original documents otherwise required by law. When a
trust deed on real property has been taken as security for a loan
that has been subsequently paid in full, a duly executed request for
reconveyance shall be delivered to the trustor or trustee for the
purpose of recording a reconveyance. A termination statement,
furnished to the borrower as provided for in Sections 9512 and 9513
of the Commercial Code, shall be deemed a release of the security
when a financing statement has been filed pursuant to Section 9501 of
the Commercial Code.
For purposes of this subdivision, an optical image reproduction
shall meet all of the following requirements:
(1) The optical image storage media used to store the document
shall be nonerasable write once, read many (WORM) optical image media
that does not allow changes to the stored document.
(2) The optical image reproduction shall be made consistent with
the minimum standards of quality approved by either the National
Institute of Standards and Technology or the Association for
Information and Image Management.
(3) Written authentication identifying the optical image
reproduction as an exact unaltered copy of the note, trust deed,
mortgage, security agreement, assignment or order shall be stamped or
printed on the optical image reproduction.
(f) Deliver or cause to be delivered to the potential borrower, or
any one thereof, at the time the licensee first requires or accepts
any signed instrument or the payment of any fee, a statement showing
in clear and distinct terms the name, address, and license number of
the finance lender and the broker, if any.
22338. Each licensed broker shall:
(a) Deliver to the borrower, or any one thereof, at the time the
final negotiation or arrangement is made, a statement showing in
clear and distinct terms the name, address, and license number of the
broker and the finance lender. The statement shall show the date,
amount, and terms of the agreement with the broker, and all amounts
paid or to be paid to the broker and to any person other than the
finance lender.
(b) Deliver to the finance lender making the loan a copy of the
statement referred to and described in subdivision (a).
(c) Deliver to the person making any payment to the broker to be
retained by the broker, a plain and complete receipt for each payment
made, at the time it is made, showing the total amount received, and
identifying the brokerage agreement and the loan contract upon which
the payment is applied. If the payment is made by a person other
than the finance lender, a copy of the receipt shall be delivered to
the finance lender.
(d) When the borrower pays the loan in full, ensure that the
finance lender fully complies with subdivision (e) of Section 22337.
(e) Deliver to the potential borrower or borrowers, at the time
the licensee first requires or accepts any signed instrument or the
payment of any fee, a statement showing in clear and distinct terms
the name, address, and license number of the broker and finance
lender.
22339. Nothing contained in this article shall be construed to deny
to any licensee hereunder the right of taking and using a security
agreement that, in addition to securing an original obligation, may
secure the repayment of sums that may be advanced to, or expenditures
that may be made at the direction of, the borrower subsequent to the
execution of the security agreement and prior to the satisfaction
thereof.
22340. (a) A licensee may sell promissory notes evidencing the
obligation to repay loans made by the licensee pursuant to this
division or evidencing the obligation to repay loans purchased from
and made by another licensee pursuant to this division to
institutional investors, and may make agreements with institutional
investors for the collection of payments or the performance of
services with respect to those notes.
(b) For the purpose of this section, "institutional investor"
means the following:
(1) The United States or any state, district, territory, or
commonwealth thereof, or any city, county, city and county, public
district, public authority, public corporation, public entity, or
political subdivision of a state, district, territory, or
commonwealth of the United States, or any agency or other
instrumentality of any one or more of the foregoing.
(2) A bank, trust company, savings bank or savings and loan
association, credit union, industrial bank or industrial loan
company, finance lender, residential mortgage lender, or insurance
company doing business under the authority of and in accordance with
a license, certificate, or charter issued by the United States or any
state, district, territory, or commonwealth of the United States.
(3) Trustees of pension, profit sharing, or welfare funds, if the
pension, profit sharing, or welfare fund has a net worth of not less
than fifteen million dollars ($15,000,000), except pension, profit
sharing, or welfare funds of a licensee or its affiliate,
self-employed individual retirement plans, or individual retirement
accounts.
(4) A corporation with outstanding securities registered under
Section 12 of the Securities Exchange Act of 1934 or any wholly owned
subsidiary of that corporation; provided, however, that the
purchaser represents that it is purchasing for its own account for
investment and not with a view to or for sale in connection with any
distribution of the promissory note.
(5) A syndication or other combination of any of the foregoing
that is organized to purchase the promissory note.
(6) A trust or other business entity established by an
institutional investor for the purpose of issuing or facilitating the
issuance of undivided interests in, the right to receive payments
from, or that are payable primarily from, a pool of financial assets
held by the trust or business entity if all of the following apply:
(A) The business entity is not a sole proprietorship.
(B) The pool of assets consists of one or more of the following:
(i) Interest bearing obligations.
(ii) Other contractual obligations representing the right to
receive payments from the assets.
(iii) Surety bonds, insurance policies, letters of credit, or
other instruments providing credit enhancements for these assets.
(C) The interests will be either of the following:
(i) Rated investment grade by Standard & Poor's Corporation or
Moody's Investors Service, Inc. "Investment grade" means that the
securities will be rated by Standard & Poor's Corporation as AAA, AA,
A, or BBB, or by Moody's Investor Service, Inc., as Aaa, Aa, A, or
Baa, including a rating with a "+" or "-" designation or other
variations that occur within these ratings.
(ii) Sold to an institutional investor as otherwise defined in
this section.
(D) The offer and sale of the securities is qualified under the
Corporate Securities Law of 1968 (Division 1 (commencing with Section
25000) of Title 4 of the Corporations Code) or is registered under
federal securities laws, or is exempt from qualification or
registration.
(c) In the absence of agreement to the contrary by the licensee
and the institutional investor, all payments received from the
collection of payments shall be deposited and maintained in a trust
account, and shall be disbursed from the trust account only in
accordance with the instructions of the owner of the promissory note.
22340.1. (a) A licensee that is a finance lender may sell to (1) an
institutional lender, or (2) an institutional investor described in
paragraph (6) of subdivision (b) of Section 22340, promissory notes
evidencing the obligation to repay federally related mortgage loans,
as defined in Section 3500.2 of Title 24 of the Code of Federal
Regulations, purchased from and made by an institutional lender, and
may make agreements for the collection of payments and performance of
services with respect to those notes. For purposes of this section,
"institutional lender" means any bank, trust company, savings bank or
savings and loan association, credit union, industrial loan company
or residential mortgage lender doing business under the authority of
and in accordance with a license, certificate or charter issued by
the United States or this state.
(b) In the absence of agreement to the contrary by the licensee
and the institutional investor or institutional lender, all payments
received from the collection of payments shall be deposited and
maintained in a trust account, and shall be disbursed from the trust
account only in accordance with the instructions of the owner of the
promissory note.
22341. (a) No licensee may make a loan to refinance a retail
installment contract subject to Chapter 1 (commencing with Section
1801) of Title 2 of Part 4 of Division 3 of the Civil Code, that is
held by the licensee, its subsidiaries, or affiliates, unless all of
the following conditions are met:
(1) The buyer has been making installment payments required by the
retail installment contract for a period of not less than 90 days.
The retail installment contract has a term of not less than 180 days
and does not provide for any scheduled installment that is more than
twice the amount of any other scheduled installment.
(2) The loan provides for additional proceeds other than for
insurance in an amount not less than the outstanding principal
balance of the retail installment contract and provides for payment
in full of the retail installment contract.
(3) The licensee shall not take a security interest in real
property that is the principal residence of the borrower unless the
loan has a principal amount of five thousand dollars ($5,000) or more
and the following notice written in the same language, for example,
Spanish, as used in the loan documents, is incorporated into the
statement used to comply with Section 22338:
"WARNING TO BORROWER: IF YOU ACCEPT THIS LOAN YOU WILL BE PUTTING
UP YOUR HOME AS SECURITY. THIS MEANS THAT YOUR HOME COULD BE SOLD
WITHOUT YOUR PERMISSION AND WITHOUT ANY COURT ACTION IF YOU MISS ANY
PAYMENT AS REQUIRED BY THIS LOAN."
This notice shall be printed in not less than 14-point bold type,
shall be set apart from the rest of the statement by a border, and
shall appear directly above a signature block which shall be signed
by the borrower. A security interest described in this paragraph that
is taken without prior notice and the borrower's signature, as
required by this paragraph, shall be void and unenforceable.
(4) The licensee shall not sell, attempt to sell, or agree to sell
any goods or services to the borrower, other than credit insurance
as defined in Section 22314 and insurance required by the licensee to
protect its security interest, until the loan has been in effect for
at least 30 days. The amount of insurance required by the licensee
to protect its security interest shall not exceed the lesser of the
principal amount of the loan or the replacement value of the security
as determined by the insurer.
(5) A licensee that is an assignee of the retail installment
contract shall continue to be subject under the loan to all equities
and defenses of the borrower against the seller arising out of the
sale, notwithstanding an agreement to the contrary.
(6) The loan shall not provide for any scheduled installment that
is more than twice the amount of any other scheduled installment.
This paragraph does not apply to a loan of a bona fide principal
amount of ten thousand dollars ($10,000) or more.
(7) If a loan of a bona fide principal amount of ten thousand
dollars ($10,000) or more provides for any scheduled installment that
is more than twice the amount of any other scheduled installment,
the loan shall contain the following provision:
"The payment schedule contained in this loan requires that you
make a balloon payment of $____ (amount of balloon payment) which is
a payment of more than double the amount of the regular payments. You
have an absolute right to obtain a new payment schedule if you
default in the payment of any balloon payment."
If the borrower defaults in the payment of any balloon payment,
the borrower shall be given an absolute right to obtain a new payment
schedule. Unless agreed to by the borrower, the installment amounts
under the new schedule shall not be substantially greater than the
average of the preceding installments.
(b) A loan made pursuant to this section shall be subject to this
division and not to Chapter 1 (commencing with Section 1801) of Title
2 of Part 4 of Division 3 of the Civil Code.
(c) An action by any licensee or borrower on a loan made pursuant
to this section shall be tried in the county in which the loan was
signed by the borrower, in the county in which the borrower resided
at the time the loan was entered into, or in the county in which the
borrower resides at the commencement of the action.
(d) Paragraphs (6) and (7) of subdivision (a) do not apply to
open-end loans.
(e) A security interest provided by any retail installment
contract in violation of subdivision (b) of Section 1804.3 of the
Civil Code shall not serve as consideration in whole or in part for a
loan made under this section, notwithstanding any agreement to the
contrary.
22342. (a) As used in this section, "instant loan check" or "live
check" means any loan or extension of credit that is made available
in the form of a check, draft, or any other negotiable instrument
that can be deposited in a bank or used for third-party payments.
"Instant loan check" or "live check" does not include a check, draft,
or any other negotiable instrument provided in response to an
application for credit or as a means of access to an existing loan or
extension of credit, including a home equity or personal line of
credit.
(b) No person shall produce, advertise, offer, sell, distribute,
or otherwise transfer for use in this state any live check unless the
document bears the following phrase printed in 12-point type on the
front of the document: "THIS IS A LOAN OR AN EXTENSION OF CREDIT. YOU
WILL PAY CHARGES."
(c) Live checks shall only be negotiable for a period of 30 days
after the date printed on the live check. Printed material
accompanying the live check shall advise the consumer to void and
destroy the live check if it is not going to be negotiated.
(d) Loan solicitations shall be mailed in envelopes with no
indication that a negotiable instrument is contained in the mailing.
Envelopes shall be marked with "do not forward" instructions to the
postal service in the event that the intended addressee is no longer
at the location.
(e) Any loan solicitation made through a live check shall be
honored in the full amount by the issuer unless the account on which
the solicitation is made is closed by the consumer prior to the date
the check is cashed.
(f) In the event that a live check is stolen or incorrectly
received by someone other than the intended payee, and the live check
is cashed or otherwise negotiated based upon fraud or
misrepresentation by someone other than the intended payee, the
following safeguards for the consumer shall apply:
(1) The creditor, upon receipt of notification that the consumer
did not negotiate the live check and is a victim of identity theft as
defined in Section 1798.92 of the Civil Code, shall provide, and the
consumer may complete, a statement confirming that the consumer did
not deposit, cash, or otherwise negotiate the live check.
(2) Upon completion of the confirmation statement by the consumer,
the consumer who was the intended payee shall have no liability for
the loan obligation, absent any fraud by that consumer.
(3) Upon receipt of notification that the consumer did not
negotiate the live check and is a victim of identity theft as defined
in Section 1798.92 of the Civil Code, the creditor shall take
appropriate actions set forth in Sections 1785.25 and 1785.26 of the
Civil Code.
(g) The commissioner may, after appropriate notice and opportunity
for hearing, by order levy administrative penalties against a
licensee who violates this section, and the licensee shall be liable
for administrative penalties of no more than two thousand five
hundred dollars ($2,500) for each willful violation. Any hearing
shall be held in accordance with the Administrative Procedure Act
(Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code), and the commissioner shall have all
the powers granted under the act. The remedy available under this
subdivision is in addition to any other remedies available to the
commissioner under this division that may be employed to enforce the
provisions of this section.
(h) Nothing in this section shall preclude the application of any
section or rule under this division.
22345. (a) Any person who violates any provision of Section 670 of
the John Warner National Defense Authorization Act for Fiscal Year
2007 (Public Law 109-364) or any provision of Section 232 of Title 32
of the Code of Federal Regulations, as published on August 31, 2007,
in Volume 72 of the Federal Register, violates this chapter.
(b) With respect to any consumer loans covered by Section 670 of
the John Warner National Defense Authorization Act for Fiscal Year
2007 (Public Law 109-364) or by Section 232 of Title 32 of the Code
of Federal Regulations, as published on August 31, 2007, in Volume 72
of the Federal Register, a person that does not market consumer
loans to, or does not extend those loans to, covered borrowers, as
that term is defined under Section 232 of Title 32 of the Code of
Federal Regulations, as published on August 31, 2007, in Volume 72 of
the Federal Register, shall not be in violation of Section 394 of
the Military and Veterans Code.
(c) This section shall become operative on October 1, 2007.
22346. Any licensee that violates any provision of any of the
following federal acts or regulations violates this division:
(a) The federal Real Estate Settlement Procedure
22300. No licensee shall directly or indirectly charge, contract
for, or receive any interest or charge of any nature unless a loan is
made.
22301. (a) No licensee shall directly or indirectly charge,
contract for, or receive any interest or charge of any nature with
respect to a loan of five thousand dollars ($5,000) or more unless
the loan is made.
(b) Notwithstanding subdivision (a), whenever a loan of five
thousand dollars ($5,000) or more is not consummated because of the
borrower's failure to disclose outstanding liens or other information
essential to making the loan or solely because of the borrower's
failure to complete the loan in accordance with the loan application,
a licensee may charge, contract for, and receive an amount equal to
the actual expenses incurred by the licensee in connection with the
preparation for the loan.
22302. (a) Section 1670.5 of the Civil Code applies to the
provisions of a loan contract that is subject to this division.
(b) A loan found to be unconscionable pursuant to Section 1670.5
of the Civil Code shall be deemed to be in violation of this division
and subject to the remedies specified in this division.
22303. Every licensee who lends any sum of money may contract for
and receive charges at a rate not exceeding the sum of the following:
(a) Two and one-half percent per month on that part of the unpaid
principal balance of any loan up to, including, but not in excess of
two hundred twenty-five dollars ($225).
(b) Two percent per month on that portion of the unpaid principal
balance in excess of two hundred twenty-five dollars ($225) up to,
including, but not in excess of nine hundred dollars ($900).
(c) One and one-half percent per month on that part of the unpaid
principal balance in excess of nine hundred dollars ($900) up to,
including, but not in excess of one thousand six hundred fifty
dollars ($1,650).
(d) One percent per month on any remainder of such unpaid balance
in excess of one thousand six hundred fifty dollars ($1,650).
This section does not apply to any loan of a bona fide principal
amount of two thousand five hundred dollars ($2,500) or more as
determined in accordance with Section 22251.
22304. As an alternative to the charges authorized by Section
22303, a licensee may contract for and receive charges at the greater
of the following:
(a) A rate not exceeding 1.6 percent per month on the unpaid
principal balance.
(b) A rate not exceeding five-sixths of 1 percent per month plus a
percentage per month equal to one-twelfth of the annual rate
prevailing on the 25th day of the second month of the quarter
preceding the quarter in which the loan is made, as established by
the Federal Reserve Bank of San Francisco, on advances to member
banks under Sections 13 and 13a of the Federal Reserve Act, as now in
effect or hereafter from time to time amended, or if there is no
single determinable rate for advances, the closest counterpart of
this rate as shall be determined by the Commissioner of Financial
Institutions. Charges shall be calculated on the unpaid principal
balance.
(c) This section does not apply to any loan of a bona fide
principal amount of two thousand five hundred dollars ($2,500) or
more as determined in accordance with Section 22251.
22305. In addition to the charges authorized by Section 22303 or
22304, a licensee may contract for and receive an administrative fee,
which shall be fully earned immediately upon making the loan, with
respect to a loan of a bona fide principal amount of not more than
two thousand five hundred dollars ($2,500) at a rate not in excess of
5 percent of the principal amount (exclusive of the administrative
fee) or fifty dollars ($50), whichever is less, and with respect to a
loan of a bona fide principal amount in excess of two thousand five
hundred dollars ($2,500), at an amount not to exceed seventy-five
dollars ($75). No administrative fee may be contracted for or
received in connection with the refinancing of a loan unless at least
one year has elapsed since the receipt of a previous administrative
fee paid by the borrower. Only one administrative fee may be
contracted for or received until the loan has been repaid in full.
For purposes of this section, "bona fide principal amount" shall be
determined in accordance with Section 22251.
22306. No amount in excess of that allowed by this article shall be
directly or indirectly charged, contracted for, or received by any
person, and the total charges of the finance lender and broker and
any other person in the aggregate shall not exceed the maximum rate
provided for in this article.
22307. (a) Except as provided in Section 22305 and Article 4
(commencing with Section 22400), all charges on loans made under this
division shall be computed and paid only as a percentage per month
of the unpaid principal balance or portions thereof, and shall be so
expressed in every obligation signed by the borrower. The charges on
loans shall be computed on the basis of the number of days actually
elapsed. For the purpose of these computations, a month is any period
of 30 consecutive days.
(b) The loan contract shall provide for payment of the aggregate
amount contracted to be paid in substantially equal periodical
installments, the first of which shall be due not less than 15 days
nor more than one month and 15 days from the date the loan is made.
This subdivision shall not apply to a loan made to a graduate student
at an accredited college or university while the student is actively
pursuing a study program leading to a postbaccalaureate degree, or
to a student loan made by an eligible lender under the Higher
Education Act of 1965, as amended (20 U.S.C. Sec. 1070 et seq.), or
to a student loan made pursuant to the Public Health Service Act, as
amended (42 U.S.C. Sec. 294 et seq.).
(c) This section shall not apply to open-end loans.
22308. Notwithstanding Section 22307, a licensee may contract for
and receive charges on the unpaid principal balance at a single
annual percentage rate, applied on the basis of the number of days
actually elapsed, if the annual rate would produce a finance charge
at the maturity of the contract not in excess of the finance charge
resulting from the application of the graduated rates specified in
Section 22303, when the loan is paid according to its terms, and
charges are computed on the basis that a month is any period of 30
consecutive days, as provided in Section 22307; provided, however,
that if prepayment in full occurs on or before the third installment
date, all charges shall be recomputed as a percentage per month of
the unpaid principal balance or portions thereof, based on the number
of days actually elapsed.
22309. Except as provided in Section 22305 and Article 4
(commencing with Section 22400), no charges on loans made pursuant to
this division shall be paid, deducted, or received in advance, or
compounded. However, if part or all of the consideration for a new
loan contract is the unpaid balance of a prior loan, the principal
amount payable under the new loan contract may include any unpaid
interest that has accrued on the prior loan. The unpaid principal
balance of a precomputed loan is the balance due after refund or
credit of unearned interest as provided in Section 22400. At the time
of making the loan, the licensee shall deliver to the borrower, or,
at the direction of the borrower, deliver to another person, an
amount equal to the face value of the loan and the note evidencing
the loan.
22310. (a) Except for a rebate or refund pursuant to any
administrative, civil, or criminal action, or any act of the
commissioner, a rebate or refund required to be made upon payment in
full of a loan pursuant to this division need not be made if the
aggregate of all rebates or refunds required in connection with a
loan is less than one dollar ($1).
(b) No licensee shall contract for or receive any payment required
in connection with a loan for the purpose of avoiding a rebate or
refund of less than one dollar ($1).
22311. No person in connection with or incidental to the making of
any loan regulated by this division may require the borrower to
contract for purchase, or agree to purchase, any other thing in
connection with the loan. A policy of insurance of the type specified
in Section 22313 and credit life and disability insurance is not
prohibited by this section. A policy of insurance of the type defined
by subdivision (a) of Section 12640.02 of the Insurance Code shall
not be deemed to be a collateral sale, purchase, or agreement within
the terms of this section or of Section 22201 or 22312.
22312. No person in connection with or incidental to the making of
a loan shall require the borrower to enter into any collateral sales
agreements or contracts, other than the contract of pledge,
assignment, or mortgage or personal property, or if otherwise
permitted by this division, the deed of trust, mortgage, or lien on
real property, by the borrower to the lender as security for the
repayment of the loan and charges on the loan. Insurance of the type
specified in Section 22313, credit life insurance, and credit
disability insurance are not prohibited by this section.
22313. Insurance on tangible personal or real property offered as
security shall not be deemed to be a collateral sale, purchase, or
agreement within the terms of Section 22201, 22311, or 22312, when
all the following requirements are met:
(a) The insurance is sold at standard rates through licensed
insurance brokers or agents.
(b) The policy is written to cover the property that is offered as
security for a loan.
(c) The property is reasonably insured against loss for a
reasonable term, which may be up to the term of the loan.
(d) The policy relating to personal property is made payable to
the borrower or any member of his or her family even though the
customary mortgagee clause is attached or the mortgagee is a
coassured.
(e) Except in the case of purchase money encumbrances, the amount
of title insurance shall not exceed the principal amount of the loan
that is secured by a deed of trust, mortgage, or lien on the real
property that is the subject of the policy of title insurance.
(f) The policy of title insurance insures the lender or is made
payable jointly to the lender and the borrower as their interests may
appear.
(g) Title insurance is placed through a title insurance company,
duly authorized to do business in the state in which the real
property is located, at rates comparable to rates being used by other
title insurance companies duly authorized to do business in that
state.
(h) Title insurance is placed in connection with the renewal or
extension of a loan only when the additional cash advance is at least
one thousand dollars ($1,000).
This section does not apply to any loan of a bona fide principal
amount of ten thousand dollars ($10,000) or more, or to a duly
licensed finance lender in connection with any such loan or loans as
determined in accordance with Section 22251.
22314. (a) Credit insurance shall not be deemed to be a collateral
sale, purchase, or agreement within the terms of Section 22201,
22311, or 22312 when the insurance is provided in accordance with the
provisions of the Insurance Code and this section. As used in this
division:
(1) "Credit insurance" means credit life, disability, and
loss-of-income insurance, or any combination of these coverages.
(2) "Credit life insurance" and "credit disability insurance" have
the same meanings as defined in Section 779.2 of the Insurance Code.
(3) "Credit loss-of-income insurance" means insurance issued to
provide indemnity for payments becoming due on a specific loan or
other credit transaction while the debtor is involuntarily
unemployed, as defined in the policy.
(b) A licensee may provide credit insurance with the borrower's
consent, the form to be approved by the Insurance Commissioner, and a
copy, together with evidence of its approval by the Insurance
Commissioner, and a copy of the schedule of rates together with
evidence of its approval by the Insurance Commissioner, to be filed
with the commissioner prior to the offer or sale of the credit
insurance and in an amount not in excess of the amount of the
indebtedness, and, with respect to credit life or disability
insurance, may collect from the borrower an amount not in excess of
that permitted by or pursuant to Section 779.36 of the Insurance
Code.
(c) If the loan is prepaid in full by cash, a new loan,
refinancing, or otherwise (except by that insurance) before the final
installment date, the borrower shall receive a rebate of that amount
computed in accordance with the formula approved by the Insurance
Commissioner pursuant to Section 779.14 of the Insurance Code.
(d) When charges for the loan are precomputed in accordance with
Section 22400, any permitted deferment charge may be computed on the
combined total of the precomputed charge and the credit insurance
charge. Only one deferment charge may be collected in connection with
any loan contract, irrespective of the number of borrowers, and only
one borrower need be insured. The amount of the deferment charge may
be deducted from the principal of the loan.
(e) If life or disability insurance is provided, and if the
insured borrower dies or becomes disabled during the term of the loan
contract, the insurance shall be sufficient to pay the total amount
due on the loan, excluding unearned charges, outstanding on the date
of death, or all amounts that become due on the loan during the
period of disability, as the case may be, without any exception,
reservation, or limitation, subject, however, to the provisions of
Section 22315.
(f) Any credit insurance provided shall be in force as soon as the
loan is made. A licensee shall not require credit insurance as a
condition of making a loan.
(g) If a borrower procures credit insurance by or through a
licensee, the statement required by Section 22338 shall disclose the
cost of the credit insurance to the borrower, and the licensee shall
deliver or cause to be delivered to the borrower a copy of the
policy, certificate, or other evidence thereof, within a reasonable
time. In the event a licensee provides credit disability or
loss-of-income insurance pursuant to this division, the licensee
shall also deliver an understandable written statement to the
borrower detailing the conditions under which the borrower will be
entitled to make a claim under the insurance policy and the procedure
to be followed in making the claim. This statement shall be first
approved by the Insurance Commissioner.
(h) The amount charged to the borrower for credit life or
disability insurance shall not exceed the amount established by or
pursuant to Section 779.36 of the Insurance Code.
(i) Nothing in this article shall prevent a licensee from selling
insurance as other business if authorized by Section 22154.
This section does not apply to any loan of a bona fide principal
amount of ten thousand dollars ($10,000) or more, or to a duly
licensed finance lender in connection with any such loan or loans as
determined in accordance with Section 22251.
22315. (a) Credit disability insurance written pursuant to Section
22314 shall not provide indemnity against the risk that the borrower
will become disabled for a period of less than 14 days. The insurance
may provide indemnity for any single period of continuous disability
of 14 days or longer, after which the risk may become compensable.
The insurance may be offered with retroactive coverage to an earlier
date based upon the disability having continued for a period stated
in the policy, but if insurance with retroactive coverage is offered,
it shall also be offered without retroactive coverage, and the
premium rate for each coverage shall be separately stated in writing
to the borrower.
(b) If insurance with retroactive coverage is provided, the
coverage shall provide for a prorated payment based upon the fraction
of the month during which the insured is disabled, provided that the
insured is continuously disabled during the waiting period set forth
in the policy. If insurance without retroactive coverage is
provided, the coverage shall provide for a prorated payment based
upon the fraction of the month during which the insured is disabled,
after first excluding the elimination period set forth in the policy.
For the purpose of this subdivision, a month is any period of 30
consecutive days.
(c) Credit disability insurance, if made available by a licensee,
shall be available on a monthly or annual premium basis, and the
premium by the month shall not exceed a pro rata relationship to the
annual premium. Credit disability insurance need not be offered for a
period less than the term of the loan to which it is applicable, and
no credit disability insurance shall be written for a period in
excess of the term of the loan to which it is applicable.
(d) The monthly disability benefit payable with respect to an
open-end loan shall not exceed the monthly payment computed pursuant
to Section 22453 on the outstanding balance at the time disability is
incurred.
This section does not apply to any loan of a bona fide principal
amount of ten thousand dollars ($10,000) or more, as determined in
accordance with Section 22251.
22316. A licensee may collect the cost of a lot book report
purchased in lieu of the title insurance provided for in Section
22313. The cost is not included in charges as defined in this
division or in determining the maximum charges that may be made under
this article.
22317. On any loan made that is secured by real property, an
appraisal fee not to exceed the actual cost of the appraisal may be
charged by the licensee if a written appraisal is provided to the
licensee by a qualified appraiser. Only one fee for appraising the
same real property may be collected unless the borrower has obtained
a new or additional loan and more than one year has elapsed since the
prior appraisal. The fee is not included in charges as defined in
this division or in determining the maximum charges that may be made
under this article.
22317.2. (a) A licensee may collect a fee for use of an automated
valuation model result prepared by a third party not to exceed the
actual cost paid to the third party for a written automated valuation
model result in lieu of the appraisal provided for in Section 22317.
The borrower shall not be charged for both an automated valuation
model result and an appraisal as defined in Section 22317 for the
same property in a single transaction. Only one fee for providing an
automated valuation model result or an appraisal for the same real
property may be collected unless the borrower has obtained a new or
additional loan and more than one year has elapsed since the prior
delivery of an automated valuation model result or an appraisal.
However, if a fee for an automated valuation model result has been
paid, an appraisal fee minus the amount that has been paid by the
borrower for the automated valuation model result may be charged for
an appraisal for the same real property within one year if the
borrower has obtained a new or additional loan. The fee is not
included in charges as defined in this division or in determining the
maximum charges that may be made under this article.
(b) A licensee in a loan transaction secured by real property
shall provide notice as described in this section to a borrower of
the borrower's right to receive a copy of the automated valuation
model result, provided he or she has paid a fee for the automated
valuation model result. A borrower's written request for a copy of an
automated valuation model result shall be received by the licensee
no later than 90 days after (1) the licensee has provided notice of
the action taken on the application, including a notice of
incompleteness, or (2) the application has been withdrawn.
(c) The licensee shall mail or deliver a copy of an automated
valuation model result within 15 days after receiving a written
request from the borrower, or within 15 days after receiving the
automated valuation model result, whichever occurs later.
(d) Where the loan is proposed to be secured by real property, the
notice of the borrower's right to a copy of the automated valuation
model result shall be given in at least 10-point boldface type, as a
separate document in a form that the borrower may retain, and no
later than 15 days after the licensee receives the written
application. The notice shall specify that the borrower's request for
the automated valuation model result must be in writing and must be
received by the licensee no later than 90 days after the licensee
provides notice of the action taken on the application or a notice of
incompleteness, or in the case of a withdrawn application, 90 days
after the withdrawal. The notice shall also include the following
statement: "An automated valuation model is not an appraisal. It is a
computerized property valuation system that is used to derive a real
property value." An address to which the request should be sent
shall be specified in the notice. Release of the automated valuation
model result to the borrower may be conditioned upon payment of the
fee.
(e) This section does not apply to automated valuation model
results obtained by licensees on property owned by the licensee, nor
to automated valuation model results obtained by the licensee in
anticipation of modifying any existing loan agreement if the licensee
does not charge for the use of the automated valuation model result.
(f) For purposes of this section, an "automated valuation model"
is a computerized property valuation system that is used to derive a
real property value.
(g) Nothing in this section authorizes the use of an automated
valuation model result in lieu of an appraisal that is required under
state or federal law.
22317.5. On any loan secured by real property, a licensee may not
do either of the following:
(a) Fail to disburse funds in accordance with a commitment to make
a loan that is accepted by the applicant.
(b) Intentionally delay the closing of a loan for the sole purpose
of increasing interest, costs, fees, or charges payable by the
borrower.
22318. On any loan made that is secured by real property, an escrow
fee of a reasonable amount may be charged. The fee shall be
considered reasonable when paid to a company licensed to do business
under the Escrow Law (Division 6 (commencing with Section 17000)), or
any person exempted by the Escrow Law, provided that the fees are
comparable to fees charged by escrow companies authorized to do
business in this state. The fee is not included in charges defined in
this division in determining the applicable maximum charges that may
be made under this article.
22319. On any loan that is secured by real property, the fee to be
paid to the trustee for reconveyance of the trust deed may be
collected by the licensee for transmittal to the trustee. The fee is
not included in charges defined in this division or in determining
the applicable maximum charges that may be made under this article.
22320. With respect to a loan under this division, a fee not to
exceed fifteen dollars ($15) for the return by a depository
institution of a dishonored check, negotiable order of withdrawal, or
share draft may be charged and collected by the licensee. The fee is
not included in charges defined in this division or in determining
the applicable maximum charges that may be made under this article.
22320.5. (a) A licensee may contract for and receive a delinquency
fee not in excess of one of the following amounts:
(1) For a period in default of not less than 10 days, an amount
not in excess of ten dollars ($10).
(2) For a period in default of not less than 15 days, an amount
not in excess of fifteen dollars ($15).
(b) The delinquency fee may not be collected more than once for
the same default and may be collected at the time of the default or
at any time thereafter. If the delinquency fee is deducted from any
payment received after default occurs, and the deduction results in
the default of a subsequent installment, no fee may be collected for
the resulting default. The delinquency fee under this section is not
included in charges defined in this division or in determining
applicable maximum charges that may be made under this article.
(c) For open-end loans made under Article 5 (commencing with
Section 22450), a licensee shall not collect or receive the
delinquency fee set forth in subdivision (a) unless there is a
minimum of 20 days, inclusive, between the monthly billing date and
the date upon which the minimum payment is due, exclusive of the
applicable grace period provided in subdivision (a).
(d) This section shall not apply to precomputed loans as described
in Section 22400.
22321. If credit loss-of-income insurance is provided pursuant to
this division, it shall be subject to the following conditions:
(a) The insurance shall provide indemnity in accordance with the
terms of the policy after any single period of continuous
unemployment of 45 days or less as determined by the policy, after
which benefits shall commence. The insurance may be offered with
retroactive coverage to an earlier date based upon unemployment
having continued for the period stated in the policy.
(b) The statement required by Section 22337 shall include
disclosure of the term of the coverage, the conditions of coverage,
the benefits to be paid, and the exclusions from coverage.
(c) The borrower shall sign a certificate of voluntary acceptance
of any credit loss-of-income insurance purchased. The certificate
shall state in boldface type that is larger than the type used in the
loan contract that purchase of the insurance is not a necessary
condition of receiving the loan, and that the insurance may be
canceled by the borrower at any time within 15 days after it goes
into effect. If the borrower cancels the insurance within 15 days, a
full refund shall be made of the premium paid.
(d) The minimum benefit shall be payment up to the agreed amount
on not less than four benefit payments, as stated in the policy,
which accrue during a covered period of unemployment, except that
during the first 60 days after inception of the policy, the minimum
benefit may be payment up to the agreed amount of one-half the number
of benefit payments, as stated in the policy, which accrue during a
covered period of unemployment. The maximum benefits shall be
established in the contract of insurance.
(e) If combination credit disability and credit loss-of-income
coverage is offered, credit disability and credit loss-of-income
coverage shall also be offered separately.
(f) Benefits may not be denied because the insured cannot
establish a valid claim for unemployment compensation benefits under
Part 1 (commencing with Section 100) of Division 1 of the
Unemployment Insurance Code solely because the former employer was
not required to contribute to the State Unemployment Fund.
(g) If insurance with retroactive coverage is provided, the
coverage shall provide for a prorated payment based upon the fraction
of the month during which the insured is unemployed, provided that
the insured is continuously unemployed during the waiting period set
forth in the policy. If insurance without retroactive coverage is
provided, the coverage shall provide for a prorated payment based
upon the fraction of the month during which the insured is
unemployed, after first excluding the elimination period set forth in
the policy. For the purpose of this subdivision, a month is any
period of 30 consecutive days.
(h) When unemployment continues for a number of months equal to or
greater than the maximum number of benefit payments stated in the
policy, the final payment shall be equal to the difference between a
benefit payment and the initial prorated payment.
(i) As used in this section, "benefit payment" means payment of an
amount equal to a loan repayment installment or a maximum amount
established in the contract of insurance, whichever is less.
(j) The minimum benefit payment offered may not be less than the
amount of a loan repayment installment unless the borrower or
borrowers have two or more sources of income. If the maximum benefit
payment offered is less than the amount of a loan repayment
installment, the borrower shall also be offered coverage in which the
maximum benefit payment is equal to the amount of a loan repayment
installment.
This section does not apply to any loan of a bona fide principal
amount of ten thousand dollars ($10,000) or more, or to a duly
licensed finance lender in connection with any such loan or loans as
determined in accordance with Section 22251.
22322. A loan lawfully made outside the state may be enforced in
this state as to the unpaid principal balance of the loan together
with the interest, consideration, brokerage, and all other charges,
to the extent of but not to exceed the unpaid principal balance and
the aggregate amount of interest, consideration, brokerage, and all
other charges permitted by this division in connection with a loan of
the same amount made within this state.
22323. Any person who collects or attempts to collect in this state
the unpaid principal balance of a loan made outside the state and a
greater aggregate amount of interest, consideration, brokerage, and
all other charges in connection with the loan than is permitted by
this division in connection with a loan of the same amount made
within this state, is subject to the provisions of this division.
22324. Any person who contracts for or negotiates in this state a
loan to be made outside the state for the purpose of evading or
avoiding the provisions of this division is subject to the provisions
of this division.
22325. Every licensee shall display prominently in each licensed
place of business a full and accurate schedule of the charges to be
made and the method of computing the charges. The schedule is subject
to the approval of the commissioner.
22326. No person, except as authorized by this division, shall
directly or indirectly charge, contract for, or receive any interest,
discount, or consideration greater than the lender would be
permitted by law to charge if he or she were not a licensee
hereunder, upon the loan, use, or forbearance of money, goods, or
things in action, or upon the loan, use, or sale of credit. This
section applies to any person, who by any device, subterfuge, or
pretense charges, contracts for, or receives greater interest,
consideration, or charges than is authorized by this division for any
loan, use, or forbearance of money, goods, or things in action or
for any loan, use, or sale of credit.
22327. No licensee shall knowingly induce any borrower to split up
or divide any loan with any other licensee. No licensee shall induce
or permit any borrower to be or to become obligated directly or
indirectly, or both, under more than one contract of loan at the same
time with the same licensee for the purpose or with the result of
obtaining a higher rate of charge than would otherwise be permitted
by this article, except as otherwise required by the federal Equal
Credit Opportunity Act (15 U.S.C. Sec. 1691 et seq.; P.L. 93-495) and
Regulation B promulgated by the Board of Governors of the Federal
Reserve System (12 C.F.R. 202 et seq.). For the purpose of this
section, "borrower" includes any husband and wife, whether jointly or
severally obligated.
22328. (a) This section applies to a loan secured in whole or in
part by a lien on a motor vehicle as defined by subdivision (k) of
Section 2981 of the Civil Code.
(b) Any provision in any loan contract to the contrary
notwithstanding, at least 15 days' written notice of intent to
dispose of a repossessed or surrendered motor vehicle must be given
to all persons liable on the loan. The notice shall be personally
served or shall be sent by certified mail, return receipt requested,
or first-class mail, postage prepaid, directed to the last known
address of the persons liable on the loan. Except as otherwise
provided in Section 2983.8 of the Civil Code, those persons shall be
liable for any deficiency after disposition of the repossessed or
surrendered motor vehicle only if the notice prescribed by this
section is given within 60 days of repossession or surrender and does
all of the following:
(1) States that those persons shall have a right to redeem the
motor vehicle by paying in full the indebtedness evidenced by the
loan note until the expiration of 15 days from the date of giving or
mailing the notice, provides an itemization of the loan balance and
of any costs and fees authorized by this division, and states the
computation or estimate of the amount of any credit for unearned
finance charges or canceled insurance as of the date of the notice.
(2) States either that there is a conditional right to reinstate
the loan until the expiration of 15 days from the date of giving or
mailing the notice and all the conditions precedent thereto or that
there is no right of reinstatement and provides a statement of
reasons therefor.
(3) States that, upon written request, the licensee shall extend
for an additional 10 days the redemption period or, if entitled to
the conditional right of reinstatement, both the redemption and
reinstatement periods. The licensee shall provide the proper form for
applying for these extensions with the substance of the form being
limited to the extension request, spaces for the requesting party to
sign and date the form, and instructions that it must be personally
served or sent by certified or registered mail, return receipt
requested, to a person or office and address designated by the
licensee and received before the expiration of the initial redemption
and reinstatement periods.
(4) Discloses the place at which the motor vehicle will be
returned to the persons liable on the loan upon redemption or
reinstatement.
(5) Designates the name and address of the person or office to
whom payment shall be made.
(6) States the licensee's intent to dispose of the motor vehicle
upon the expiration of 15 days from the date of giving or mailing the
notice, or if by mail and either the place of deposit in the mail or
the place of address is outside of this state, the period shall be
20 days instead of 15 days, and further, that upon written request to
extend the redemption period and any applicable reinstatement period
for 10 days, the licensee shall, without further notice, extend the
period accordingly.
(7) Informs the persons liable on the loan that, upon written
request, the licensee shall furnish a written accounting regarding
the disposition of the motor vehicle as provided for in subdivision
(c). The licensee shall advise them that the request must be
personally served or sent by first-class mail, postage prepaid, or
certified mail, return receipt requested, to a person or office and
address designated by the licensee.
(8) Includes a notice, in at least 10-point bold type if the
notice is printed, reading as follows:
"NOTICE: YOU MAY BE SUBJECT TO SUIT AND LIABILITY IF THE AMOUNT
OBTAINED UPON DISPOSITION OF THE VEHICLE IS INSUFFICIENT TO PAY THE
LOAN BALANCE AND ANY OTHER AMOUNTS DUE."
(c) Unless automatically provided to the borrower within 45 days
after the disposition of the motor vehicle, the licensee shall
provide a written accounting regarding the disposition to any person
liable on the loan within 45 days after their written request, if the
request is made within one year after the disposition. The
accounting shall itemize:
(1) The gross proceeds of the disposition.
(2) The reasonable and necessary costs and fees authorized by this
division incurred in repossessing the motor vehicle.
(3) The satisfaction of indebtedness secured by any subordinate
lien or encumbrance on the motor vehicle if written notification of
demand therefor is received before distribution of the proceeds is
completed. If requested by the licensee, the holder of a subordinate
lien or encumbrance shall seasonably furnish reasonable proof of its
interest, and unless it does so, the seller or holder need not comply
with its demand.
(d) In all sales that result in a surplus, the licensee shall
furnish an accounting as provided in subdivision (c) whether or not
requested by the borrower. The surplus shall be returned to the
borrower within 45 days after the sale is conducted.
22329. (a) This section applies to a loan secured in whole or in
part by a lien on a motor vehicle as defined by subdivision (k) of
Section 2981 of the Civil Code.
(b) In the absence of default in the performance of any of the
borrower's obligations under the loan, the licensee may not
accelerate the maturity of any part or all of the amount due
thereunder or repossess the motor vehicle.
(c) If, after default by the borrower, the licensee repossesses or
voluntarily accepts surrender of the motor vehicle, any person
liable on the loan shall have a right to reinstate the loan and the
licensee shall not accelerate the maturity of any part or all of the
loan prior to the expiration of the right to reinstate, unless the
licensee reasonably and in good faith determines that:
(1) The borrower or any other person liable on the loan by
omission or commission intentionally provided false or misleading
information of material importance on his or her credit application.
(2) The borrower or any other person liable on the loan has
concealed the motor vehicle or removed it from the state in order to
avoid repossession.
(3) The borrower or any other person liable on the loan has
committed or threatens to commit acts of destruction, or has failed
to take care of the motor vehicle in a reasonable manner, so that the
motor vehicle has or may become substantially impaired in value.
(d) Exercise of the right to reinstate the loan shall be limited
to once in any 12-month period and twice during the term of the loan.
(e) The provisions of this subdivision shall govern the method by
which a loan shall be reinstated with respect to curing events of
default that were grounds for repossession or that occurred
subsequent to repossession.
(1) Where the default is the result of the borrower's failure to
make any payment due under the loan, the borrower or any other person
liable on the loan shall make the defaulted payments and pay any
applicable delinquency charges.
(2) Where the default is the result of the borrower's failure to
keep and maintain the motor vehicle free from all encumbrances and
liens of every kind, the borrower or any person liable on the loan
shall either satisfy all the encumbrances and liens or, in the event
the licensee satisfies the encumbrances and liens, the borrower or
any other person liable on the loan shall reimburse the licensee for
all reasonable costs and expenses incurred therefor.
(3) Where the default is the result of the borrower's failure to
keep and maintain insurance on the motor vehicle, the borrower or any
other person liable on the loan shall either obtain the insurance
or, in the event the licensee has obtained the insurance, the
borrower or any other person liable on the loan shall reimburse the
licensee for premiums paid and all reasonable costs and expenses
incurred therefor.
(4) Where the default is the result of the borrower's failure to
perform any other obligation under the loan, unless the licensee has
made a good faith determination that the default is so substantial as
to be incurable, the borrower or any other person liable on the loan
shall reimburse the licensee for all reasonable costs and expenses
incurred therefor.
(5) Additionally, the borrower or any other person liable on the
loan shall reimburse the licensee for actual and necessary fees in an
amount not exceeding the amount specified in subdivision (f) of
Section 22202 paid in connection with the repossession of a motor
vehicle to a repossession agency licensed pursuant to Chapter 11
(commencing with Section 7500) of Division 3 of the Business and
Professions Code, and actual fees in conformity with Sections 26751
and 41612 of the Government Code in an amount not exceeding the
amount specified in those sections of the Government Code.
(f) If the licensee denies the right to reinstatement under
subdivision (c) or paragraph (4) of subdivision (e), the licensee
shall have the burden of proof that the denial was justified in that
it was reasonable and made in good faith. If the licensee fails to
sustain the burden of proof, the licensee shall not be entitled to a
deficiency.
22329.5. A licensee, or the agent of a licensee, that has received
a notice pursuant to Section 7507.6 of the Business and Professions
Code, shall not make a subsequent assignment to skip trace, locate,
or repossess the vehicle without simultaneously, and in the same
manner by which the assignment is given, advising the assignee of the
assignment of the information contained in the notice. As used in
this section, "assignment" has the same meaning set forth in Section
7500.1 of the Business and Professions Code.
22330. No licensee shall take a deed of trust, mortgage, or lien
upon real property as security for any loan made under this division,
except any lien as is created by law upon the recording of an
abstract of judgment. This section shall not apply to any loan of a
bona fide principal amount of five thousand dollars ($5,000) or more
as determined in accordance with Section 22251.
22331. No licensee shall take any confession of judgment or any
power of attorney, except a power of attorney taken to effectuate the
transfer of the ownership of any motor vehicle or mobilehome at the
time of making the loan.
22332. No licensee shall take any note or promise to pay that does
not accurately disclose the actual amount of the loan, the time for
which it is made, and the agreed rate of charge or the annual
percentage rate pursuant to Regulation Z promulgated by the Board of
Governors of the Federal Reserve System.
22333. No licensee shall take any instrument in which blanks are
left to be filled in after execution.
22334. No licensee shall enter into any contract for a loan that
provides for a scheduled repayment of principal over more than the
maximum terms set forth below opposite the respective size of loans.
Principal amount of loan Maximum term
Less than $500............. 24 months and 15 days
$500 but less than $1,500.. 36 months and 15 days
$1,500 but less than 48 months and 15 days
$3,000.....................
$3,000 but less than 60 months and 15 days
$5,000.....................
This section does not apply to open-end loans, or to a student
loan made by an eligible lender under the Higher Education Act of
1965, as amended (20 U.S.C. Sec. 1070 et seq.), or to a student loan
made pursuant to the Public Health Service Act, as amended (42 U.S.C.
Sec. 294 et seq.).
22335. The payment by any person in money, credit, goods, or things
in action as consideration for any sale or assignment of, or order
for, the payment of wages, salary, commissions, or other compensation
for services, whether earned or to be earned, is, for the purposes
of regulation under this division, a loan secured by the assignment.
The amount by which the assigned compensation exceeds the amount of
the consideration actually paid is interest and charges upon or for
the loan, calculated from the date of payment to the date the
compensation is payable.
This section shall not be construed as modifying or affecting
existing statutes governing wage assignments in the state, or as
authorizing those assignments.
22336. This article does not prohibit any licensee from contracting
for, collecting, or receiving the following:
(a) The statutory fee paid by the licensee to any public officer
for acknowledging, filing, recording, or releasing in any public
office any instrument securing the loan or executed in connection
with the loan.
(b) Premiums paid by the licensee of the kind and to the extent
described in paragraph (2) of subsection (e) of Section 226.4 of
Regulation Z promulgated by the Board of Governors of the Federal
Reserve System (12 C.F.R. 226).
These amounts are not included in determining the maximum charges
which may be made under this article.
22337. Each licensed finance lender shall:
(a) Deliver or cause to be delivered to the borrower, or any one
thereof, at the time the loan is made, a statement showing in clear
and distinct terms the name, address, and license number of the
finance lender and the broker, if any. The statement shall show the
date, amount, and maturity of the loan contract, how and when
repayable, the nature of the security for the loan, if any, and the
agreed rate of charge or the annual percentage rate pursuant to
Regulation Z promulgated by the Board of Governors of the Federal
Reserve System (12 C.F.R. 226).
(b) Obtain from the borrower a signed statement as to whether any
person has performed any act as a broker in connection with the
making of the loan. If the statement discloses that a broker or other
person has participated, then the finance lender shall obtain a full
statement of all sums paid or payable to the broker or other person.
The finance lender shall keep these statements for a period of three
years from and after the date the loan has been paid in full, or has
matured according to its terms, or has been charged off.
(c) Permit payment to be made in advance in any amount on any
contract of loan at any time. The licensee may apply the payment
first to any agreed prepayment penalty, then to all charges due,
including charges at the agreed rate or rates up to the date of
payment, not to exceed the applicable maximum rate permitted by this
article.
(d) Deliver or cause to be delivered to the person making any cash
payment, or to the person who requests a receipt at the time of
making any payment, at the time payment is made on account of any
loan, a plain and complete receipt showing the total amount received
and identifying the loan contract upon which the payment is applied.
(e) Upon repayment of any loan in full, release all security for
the loan, endorse and return any certificate of ownership, and cancel
or plainly mark "paid" and return to the borrower or person making
final payment, any note, mortgage, security agreement, trust deed,
assignment, or order signed by the borrower, or an optical image
reproduction thereof, except those documents that are a part of the
court record in any action, or that have been delivered to a third
person for the purpose of carrying out their terms, or a security
agreement that secures any other indebtedness of a borrower to the
licensee, or original documents otherwise required by law. When a
trust deed on real property has been taken as security for a loan
that has been subsequently paid in full, a duly executed request for
reconveyance shall be delivered to the trustor or trustee for the
purpose of recording a reconveyance. A termination statement,
furnished to the borrower as provided for in Sections 9512 and 9513
of the Commercial Code, shall be deemed a release of the security
when a financing statement has been filed pursuant to Section 9501 of
the Commercial Code.
For purposes of this subdivision, an optical image reproduction
shall meet all of the following requirements:
(1) The optical image storage media used to store the document
shall be nonerasable write once, read many (WORM) optical image media
that does not allow changes to the stored document.
(2) The optical image reproduction shall be made consistent with
the minimum standards of quality approved by either the National
Institute of Standards and Technology or the Association for
Information and Image Management.
(3) Written authentication identifying the optical image
reproduction as an exact unaltered copy of the note, trust deed,
mortgage, security agreement, assignment or order shall be stamped or
printed on the optical image reproduction.
(f) Deliver or cause to be delivered to the potential borrower, or
any one thereof, at the time the licensee first requires or accepts
any signed instrument or the payment of any fee, a statement showing
in clear and distinct terms the name, address, and license number of
the finance lender and the broker, if any.
22338. Each licensed broker shall:
(a) Deliver to the borrower, or any one thereof, at the time the
final negotiation or arrangement is made, a statement showing in
clear and distinct terms the name, address, and license number of the
broker and the finance lender. The statement shall show the date,
amount, and terms of the agreement with the broker, and all amounts
paid or to be paid to the broker and to any person other than the
finance lender.
(b) Deliver to the finance lender making the loan a copy of the
statement referred to and described in subdivision (a).
(c) Deliver to the person making any payment to the broker to be
retained by the broker, a plain and complete receipt for each payment
made, at the time it is made, showing the total amount received, and
identifying the brokerage agreement and the loan contract upon which
the payment is applied. If the payment is made by a person other
than the finance lender, a copy of the receipt shall be delivered to
the finance lender.
(d) When the borrower pays the loan in full, ensure that the
finance lender fully complies with subdivision (e) of Section 22337.
(e) Deliver to the potential borrower or borrowers, at the time
the licensee first requires or accepts any signed instrument or the
payment of any fee, a statement showing in clear and distinct terms
the name, address, and license number of the broker and finance
lender.
22339. Nothing contained in this article shall be construed to deny
to any licensee hereunder the right of taking and using a security
agreement that, in addition to securing an original obligation, may
secure the repayment of sums that may be advanced to, or expenditures
that may be made at the direction of, the borrower subsequent to the
execution of the security agreement and prior to the satisfaction
thereof.
22340. (a) A licensee may sell promissory notes evidencing the
obligation to repay loans made by the licensee pursuant to this
division or evidencing the obligation to repay loans purchased from
and made by another licensee pursuant to this division to
institutional investors, and may make agreements with institutional
investors for the collection of payments or the performance of
services with respect to those notes.
(b) For the purpose of this section, "institutional investor"
means the following:
(1) The United States or any state, district, territory, or
commonwealth thereof, or any city, county, city and county, public
district, public authority, public corporation, public entity, or
political subdivision of a state, district, territory, or
commonwealth of the United States, or any agency or other
instrumentality of any one or more of the foregoing.
(2) A bank, trust company, savings bank or savings and loan
association, credit union, industrial bank or industrial loan
company, finance lender, residential mortgage lender, or insurance
company doing business under the authority of and in accordance with
a license, certificate, or charter issued by the United States or any
state, district, territory, or commonwealth of the United States.
(3) Trustees of pension, profit sharing, or welfare funds, if the
pension, profit sharing, or welfare fund has a net worth of not less
than fifteen million dollars ($15,000,000), except pension, profit
sharing, or welfare funds of a licensee or its affiliate,
self-employed individual retirement plans, or individual retirement
accounts.
(4) A corporation with outstanding securities registered under
Section 12 of the Securities Exchange Act of 1934 or any wholly owned
subsidiary of that corporation; provided, however, that the
purchaser represents that it is purchasing for its own account for
investment and not with a view to or for sale in connection with any
distribution of the promissory note.
(5) A syndication or other combination of any of the foregoing
that is organized to purchase the promissory note.
(6) A trust or other business entity established by an
institutional investor for the purpose of issuing or facilitating the
issuance of undivided interests in, the right to receive payments
from, or that are payable primarily from, a pool of financial assets
held by the trust or business entity if all of the following apply:
(A) The business entity is not a sole proprietorship.
(B) The pool of assets consists of one or more of the following:
(i) Interest bearing obligations.
(ii) Other contractual obligations representing the right to
receive payments from the assets.
(iii) Surety bonds, insurance policies, letters of credit, or
other instruments providing credit enhancements for these assets.
(C) The interests will be either of the following:
(i) Rated investment grade by Standard & Poor's Corporation or
Moody's Investors Service, Inc. "Investment grade" means that the
securities will be rated by Standard & Poor's Corporation as AAA, AA,
A, or BBB, or by Moody's Investor Service, Inc., as Aaa, Aa, A, or
Baa, including a rating with a "+" or "-" designation or other
variations that occur within these ratings.
(ii) Sold to an institutional investor as otherwise defined in
this section.
(D) The offer and sale of the securities is qualified under the
Corporate Securities Law of 1968 (Division 1 (commencing with Section
25000) of Title 4 of the Corporations Code) or is registered under
federal securities laws, or is exempt from qualification or
registration.
(c) In the absence of agreement to the contrary by the licensee
and the institutional investor, all payments received from the
collection of payments shall be deposited and maintained in a trust
account, and shall be disbursed from the trust account only in
accordance with the instructions of the owner of the promissory note.
22340.1. (a) A licensee that is a finance lender may sell to (1) an
institutional lender, or (2) an institutional investor described in
paragraph (6) of subdivision (b) of Section 22340, promissory notes
evidencing the obligation to repay federally related mortgage loans,
as defined in Section 3500.2 of Title 24 of the Code of Federal
Regulations, purchased from and made by an institutional lender, and
may make agreements for the collection of payments and performance of
services with respect to those notes. For purposes of this section,
"institutional lender" means any bank, trust company, savings bank or
savings and loan association, credit union, industrial loan company
or residential mortgage lender doing business under the authority of
and in accordance with a license, certificate or charter issued by
the United States or this state.
(b) In the absence of agreement to the contrary by the licensee
and the institutional investor or institutional lender, all payments
received from the collection of payments shall be deposited and
maintained in a trust account, and shall be disbursed from the trust
account only in accordance with the instructions of the owner of the
promissory note.
22341. (a) No licensee may make a loan to refinance a retail
installment contract subject to Chapter 1 (commencing with Section
1801) of Title 2 of Part 4 of Division 3 of the Civil Code, that is
held by the licensee, its subsidiaries, or affiliates, unless all of
the following conditions are met:
(1) The buyer has been making installment payments required by the
retail installment contract for a period of not less than 90 days.
The retail installment contract has a term of not less than 180 days
and does not provide for any scheduled installment that is more than
twice the amount of any other scheduled installment.
(2) The loan provides for additional proceeds other than for
insurance in an amount not less than the outstanding principal
balance of the retail installment contract and provides for payment
in full of the retail installment contract.
(3) The licensee shall not take a security interest in real
property that is the principal residence of the borrower unless the
loan has a principal amount of five thousand dollars ($5,000) or more
and the following notice written in the same language, for example,
Spanish, as used in the loan documents, is incorporated into the
statement used to comply with Section 22338:
"WARNING TO BORROWER: IF YOU ACCEPT THIS LOAN YOU WILL BE PUTTING
UP YOUR HOME AS SECURITY. THIS MEANS THAT YOUR HOME COULD BE SOLD
WITHOUT YOUR PERMISSION AND WITHOUT ANY COURT ACTION IF YOU MISS ANY
PAYMENT AS REQUIRED BY THIS LOAN."
This notice shall be printed in not less than 14-point bold type,
shall be set apart from the rest of the statement by a border, and
shall appear directly above a signature block which shall be signed
by the borrower. A security interest described in this paragraph that
is taken without prior notice and the borrower's signature, as
required by this paragraph, shall be void and unenforceable.
(4) The licensee shall not sell, attempt to sell, or agree to sell
any goods or services to the borrower, other than credit insurance
as defined in Section 22314 and insurance required by the licensee to
protect its security interest, until the loan has been in effect for
at least 30 days. The amount of insurance required by the licensee
to protect its security interest shall not exceed the lesser of the
principal amount of the loan or the replacement value of the security
as determined by the insurer.
(5) A licensee that is an assignee of the retail installment
contract shall continue to be subject under the loan to all equities
and defenses of the borrower against the seller arising out of the
sale, notwithstanding an agreement to the contrary.
(6) The loan shall not provide for any scheduled installment that
is more than twice the amount of any other scheduled installment.
This paragraph does not apply to a loan of a bona fide principal
amount of ten thousand dollars ($10,000) or more.
(7) If a loan of a bona fide principal amount of ten thousand
dollars ($10,000) or more provides for any scheduled installment that
is more than twice the amount of any other scheduled installment,
the loan shall contain the following provision:
"The payment schedule contained in this loan requires that you
make a balloon payment of $____ (amount of balloon payment) which is
a payment of more than double the amount of the regular payments. You
have an absolute right to obtain a new payment schedule if you
default in the payment of any balloon payment."
If the borrower defaults in the payment of any balloon payment,
the borrower shall be given an absolute right to obtain a new payment
schedule. Unless agreed to by the borrower, the installment amounts
under the new schedule shall not be substantially greater than the
average of the preceding installments.
(b) A loan made pursuant to this section shall be subject to this
division and not to Chapter 1 (commencing with Section 1801) of Title
2 of Part 4 of Division 3 of the Civil Code.
(c) An action by any licensee or borrower on a loan made pursuant
to this section shall be tried in the county in which the loan was
signed by the borrower, in the county in which the borrower resided
at the time the loan was entered into, or in the county in which the
borrower resides at the commencement of the action.
(d) Paragraphs (6) and (7) of subdivision (a) do not apply to
open-end loans.
(e) A security interest provided by any retail installment
contract in violation of subdivision (b) of Section 1804.3 of the
Civil Code shall not serve as consideration in whole or in part for a
loan made under this section, notwithstanding any agreement to the
contrary.
22342. (a) As used in this section, "instant loan check" or "live
check" means any loan or extension of credit that is made available
in the form of a check, draft, or any other negotiable instrument
that can be deposited in a bank or used for third-party payments.
"Instant loan check" or "live check" does not include a check, draft,
or any other negotiable instrument provided in response to an
application for credit or as a means of access to an existing loan or
extension of credit, including a home equity or personal line of
credit.
(b) No person shall produce, advertise, offer, sell, distribute,
or otherwise transfer for use in this state any live check unless the
document bears the following phrase printed in 12-point type on the
front of the document: "THIS IS A LOAN OR AN EXTENSION OF CREDIT. YOU
WILL PAY CHARGES."
(c) Live checks shall only be negotiable for a period of 30 days
after the date printed on the live check. Printed material
accompanying the live check shall advise the consumer to void and
destroy the live check if it is not going to be negotiated.
(d) Loan solicitations shall be mailed in envelopes with no
indication that a negotiable instrument is contained in the mailing.
Envelopes shall be marked with "do not forward" instructions to the
postal service in the event that the intended addressee is no longer
at the location.
(e) Any loan solicitation made through a live check shall be
honored in the full amount by the issuer unless the account on which
the solicitation is made is closed by the consumer prior to the date
the check is cashed.
(f) In the event that a live check is stolen or incorrectly
received by someone other than the intended payee, and the live check
is cashed or otherwise negotiated based upon fraud or
misrepresentation by someone other than the intended payee, the
following safeguards for the consumer shall apply:
(1) The creditor, upon receipt of notification that the consumer
did not negotiate the live check and is a victim of identity theft as
defined in Section 1798.92 of the Civil Code, shall provide, and the
consumer may complete, a statement confirming that the consumer did
not deposit, cash, or otherwise negotiate the live check.
(2) Upon completion of the confirmation statement by the consumer,
the consumer who was the intended payee shall have no liability for
the loan obligation, absent any fraud by that consumer.
(3) Upon receipt of notification that the consumer did not
negotiate the live check and is a victim of identity theft as defined
in Section 1798.92 of the Civil Code, the creditor shall take
appropriate actions set forth in Sections 1785.25 and 1785.26 of the
Civil Code.
(g) The commissioner may, after appropriate notice and opportunity
for hearing, by order levy administrative penalties against a
licensee who violates this section, and the licensee shall be liable
for administrative penalties of no more than two thousand five
hundred dollars ($2,500) for each willful violation. Any hearing
shall be held in accordance with the Administrative Procedure Act
(Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code), and the commissioner shall have all
the powers granted under the act. The remedy available under this
subdivision is in addition to any other remedies available to the
commissioner under this division that may be employed to enforce the
provisions of this section.
(h) Nothing in this section shall preclude the application of any
section or rule under this division.
22345. (a) Any person who violates any provision of Section 670 of
the John Warner National Defense Authorization Act for Fiscal Year
2007 (Public Law 109-364) or any provision of Section 232 of Title 32
of the Code of Federal Regulations, as published on August 31, 2007,
in Volume 72 of the Federal Register, violates this chapter.
(b) With respect to any consumer loans covered by Section 670 of
the John Warner National Defense Authorization Act for Fiscal Year
2007 (Public Law 109-364) or by Section 232 of Title 32 of the Code
of Federal Regulations, as published on August 31, 2007, in Volume 72
of the Federal Register, a person that does not market consumer
loans to, or does not extend those loans to, covered borrowers, as
that term is defined under Section 232 of Title 32 of the Code of
Federal Regulations, as published on August 31, 2007, in Volume 72 of
the Federal Register, shall not be in violation of Section 394 of
the Military and Veterans Code.
(c) This section shall become operative on October 1, 2007.
22346. Any licensee that violates any provision of any of the
following federal acts or regulations violates this division:
(a) The federal Real Estate Settlement Procedure
