408.052. Points prohibited, exception--penalties for illegal points--violation a misdemeanor--default charge authorized, when, exceptions.
Points prohibited, exception--penalties for illegal points--violationa misdemeanor--default charge authorized, when, exceptions.
408.052. 1. No lender shall charge, require or receive, on anyresidential real estate loan, any points or other fees of any naturewhatsoever, excepting insurance, including insurance for involuntaryunemployment coverage, and a one-percent origination fee, whether from thebuyer or the seller or any other person, except that the lender may chargebona fide expenses paid by the lender to any other person or entity exceptto an officer, employee, or director of the lender or to any business inwhich any officer, employee or director of the lender owns any substantialinterest for services actually performed in connection with a loan. Inaddition to the foregoing, if the loan is for the construction, repair, orimprovement of residential real estate, the lender may charge a fee not toexceed one percent of the loan amount for inspection and disbursement ofthe proceeds of the loan to third parties. Notwithstanding the foregoing,the parties may contract for a default charge for any installment not paidin full within fifteen days of its scheduled due date. The restrictions ofthis section shall not apply:
(1) To any loan which is insured or covered by guarantee made by anydepartment, board, bureau, commission, agency or establishment of theUnited States, pursuant to the authority of any act of Congress heretoforeor hereafter adopted; and
(2) To any loan for which an offer or commitment or agreement topurchase has been received from and which is made with the intention ofreselling such loan to the Federal Housing Administration, Farmers HomeAdministration, Federal National Mortgage Association, Government NationalMortgage Association, Federal Home Loan Mortgage Corporation, or to anysuccessor to the above-mentioned organizations, to any other state orfederal governmental or quasi-governmental organization; and
(3) Provided that the 1994 reenactment of this section shall not beconstrued to be action taken in accordance with Public Law 96-221, Section501(b)(4).Any points or fees received in excess of those permitted under this sectionshall be returned to the person from whom received upon demand.
2. Notwithstanding the language in subsection 1 of this section, alender may pay to an officer, employee or director of the lender, or to anybusiness in which such person has an interest, bona fide fees for servicesactually and necessarily performed in good faith in connection with aresidential real estate loan, provided:
(1) Such services are individually listed by amount and payee on theloan-closing documents; and
(2) Such lender may use the preemption of Public Law 96-221, Section501 with respect to the residential real estate loan in question.
When fees charged need not be disclosed in the annual percentage raterequired by Title 15, U.S.C. Sections 1601, et seq., and regulationsthereunder because such fees are de minimis amounts or for other reasons,such fees need not be included in the annual percentage rate for stateexamination purposes.
3. The lender may charge and collect bona fide fees for servicesactually and necessarily performed in good faith in connection with aresidential real estate loan as provided in subsection 2 of this section;however, the lender's board of directors shall determine whether such bonafide fees shall be paid to the lender or businesses related to the lenderin subsection 2 of this section, but may allow current contractualrelationships to continue for up to two years.
4. If any points or fees are charged, required or received, which arein excess of those permitted by this section, or which are not returnedupon demand when required by this section, then the person paying the samepoints or fees or his or her legal representative may recover twice theamount paid together with costs of the suit and reasonable attorney's fees,provided that the action is brought within five years of such payment.
5. Any lender who knowingly violates the provisions of this sectionis guilty of a class B misdemeanor.
(L. 1974 2d Ex. Sess. S.B. 1, A.L. 1979 S.B. 305, A.L. 1989 H.B. 615 & 563 merged with S.B. 258, A.L. 1994 S.B. 701, A.L. 2000 S.B. 896, A.L. 2001 H.B. 738 merged with S.B. 186)