45-1002 Terms, defined; act; applicability.
45-1002. Terms, defined; act; applicability.(1) For purposes of the Nebraska Installment Loan Act:(a) Applicant means a person applying for a license under the act;(b) Breach of security of the system means unauthorized acquisitionof data that compromises the security, confidentiality, or integrity of theinformation maintained by the Nationwide Mortgage Licensing System and Registry,its affiliates, or its subsidiaries;(c) Department means the Department of Banking and Finance;(d) Debt cancellation contract means a loan term or contractual arrangementmodifying loan terms under which a financial institution agrees to cancelall or part of a borrower's obligation to repay an extension of credit fromthe financial institution upon the occurrence of a specified event. The debtcancellation contract may be separate from or a part of other loan documents.The term debt cancellation contract does not include loan payment deferralarrangements in which the triggering event is the borrower's unilateral electionto defer repayment or the financial institution's unilateral decision to allowa deferral of repayment;(e) Debt suspension contract means a loan term or contractual arrangementmodifying loan terms under which a financial institution agrees to suspendall or part of a borrower's obligation to repay an extension of credit fromthe financial institution upon the occurrence of a specified event. The debtsuspension contract may be separate from or a part of other loan documents.The term debt suspension contract does not include loan payment deferral arrangementsin which the triggering event is the borrower's unilateral election to deferrepayment or the financial institution's unilateral decision to allow a deferralof repayment;(f) Director means the Director of Banking and Finance;(g) Financial institution has the same meaning as in section 8-101;(h) Guaranteed assetprotection waiver means a waiver that is offered, sold, or provided in accordancewith the Guaranteed Asset Protection Waiver Act;(i) Licensee means any person who obtains alicense under the Nebraska Installment Loan Act;(j)(i) Mortgage loan originatormeans an individual who for compensation or gain (A) takes a residential mortgageloan application or (B) offers or negotiates terms of a residential mortgageloan.(ii) Mortgage loan originator does not include (A) any individual whois not otherwise described in subdivision (i)(A) of this subdivision and whoperforms purely administrative or clerical tasks on behalf of a person whois described in subdivision (i) of this subdivision, (B)a person or entity that only performs real estate brokerage activities andis licensed or registered in accordance with applicable state law, unlessthe person or entity is compensated by a lender, a mortgage broker, or othermortgage loan originator or by any agent of such lender, mortgage broker,or other mortgage loan originator, or (C) a person or entity solely involvedin extensions of credit relating to time-share programs as defined in section 76-1702;(k) Nationwide Mortgage LicensingSystem and Registry means a mortgage licensing system developed and maintainedby the Conference of State Bank Supervisors and the American Association ofResidential Mortgage Regulators for the licensing and registration of mortgageloan originators, mortgage bankers, and installment loan companies;(l) Person means individual,partnership, limited liability company, association, financial institution,trust, corporation, and any other legal entity; and(m) Real property means anowner-occupied single-family, two-family, three-family, or four-family dwellingwhich is located in this state, which is occupied, used, or intended to beoccupied or used for residential purposes, and which is, or is intended tobe, permanently affixed to the land.(2) Except as provided in subsection (3) of section 45-1017 and subsection (4) of section 45-1019,no revenue arising under the Nebraska Installment Loan Act shallinure to any school fund of the State of Nebraska or any of its governmentalsubdivisions.(3) Loan, when used in the Nebraska Installment Loan Act, does not includeany loan made by a person who is not a licensee on which the interest doesnot exceed the maximum rate permitted by section 45-101.03.(4) Nothing in the Nebraska Installment Loan Act applies to any loanmade by a person who is not a licensee if the interest on the loan does notexceed the maximum rate permitted by section 45-101.03. SourceLaws 1941, c. 90, § 1, p. 345; C.S.Supp.,1941, § 45-131; Laws 1943, c. 107, § 1, p. 369; R.S.1943, § 45-114; Laws 1961, c. 225, § 1, p. 668; Laws 1963, Spec. Sess., c. 7, § 7, p. 92; Laws 1979, LB 87, § 1; Laws 1982, LB 941, § 1; Laws 1993, LB 121, § 264; Laws 1997, LB 137, § 20; Laws 1997, LB 555, § 3; R.S.1943, (1998), § 45-114; Laws 2001, LB 53, § 30; Laws 2003, LB 131, § 30; Laws 2003, LB 217, § 38; Laws 2006, LB 876, § 48; Laws 2009, LB328, § 41; Laws 2010, LB571, § 10; Laws 2010, LB892, § 19. Cross ReferencesGuaranteed Asset Protection Waiver Act, see section 45-1101. Annotations1. Transactions2. Constitutionality3. Recovery denied4. Miscellaneous1. TransactionsThe Installment Loan Act comprehensibly regulates and limits all loans made by a licensee to small borrowers. Gruenemeier v. Commonwealth Co., 178 Neb. 66, 131 N.W.2d 713 (1964).A loan of money by a nonlicensee, which does not exact interest in excess of nine percent per annum, is not within the inhibitory provisions of the Installment Loan Act. Moffitt-Harrison Builders, Inc. v. Sandman, 177 Neb. 425, 129 N.W.2d 524 (1964).A loan of money by a nonlicensee which does not exact interest and charges in excess of nine percent per annum is not usurious. Pattavina v. Pignotti, 177 Neb. 217, 128 N.W.2d 817 (1964).If a purported time sale is in fact a loan and the loan is made in violation of the Installment Loan Act, the penalties of the act apply to it. Lloyd v. Gutgsell, 175 Neb. 775, 124 N.W.2d 198 (1963).Inhibitory provisions of Installment Loan Act apply alike to licensees and nonlicensees. Robertson v. Burnett, 172 Neb. 385, 109 N.W.2d 716 (1961).Permissive provisions of Installment Loan Act apply to licensees, but inhibitory provisions apply alike to licensees and nonlicensees. Curtis v. Securities Acceptance Corp., 166 Neb. 815, 91 N.W.2d 19 (1958).Design of the law was to license and control the business of making installment loans. A-1 Finance Co., Inc. v. Nelson, 165 Neb. 296, 85 N.W.2d 687 (1957).Notwithstanding limitations on interest rates imposed on state banks by Nebraska law, national bank in Nebraska can charge, with respect to credit card transactions, rates allowed by Nebraska law for "small loan companies". Fisher v. First Nat. Bank of Omaha, 548 F.2d 255 (8th Cir. 1977).2. ConstitutionalityAmendments made to Installment Loan Act in 1963 Special Session by Legislative Bill 11 were unconstitutional as special legislation. State Securities Co. v. Ley, 177 Neb. 251, 128 N.W.2d 766 (1964).Installment Loan Act sustained as constitutional. State ex rel. Beck v. Associates Discount Corp., 162 Neb. 683, 77 N.W.2d 215 (1956).3. Recovery deniedAn installment sales contract which exacts interest in excess of nine percent per annum and where the seller is a nonlicensee violates the Small Loan Act. Elder v. Doerr, 175 Neb. 483, 122 N.W.2d 528 (1963).Recovery on note payable in installments was properly denied where excessive interest was charged. Powell v. Edwards, 162 Neb. 11, 75 N.W.2d 122 (1956).Violation of Installment Loan Act by lender makes loan void and uncollectible. Grand Island Finance Co. v. Eacker, 155 Neb. 546, 52 N.W.2d 805 (1952).4. MiscellaneousThe Installment Loan Act applies primarily to those licensed under the act but its inhibitory provisions apply also to nonlicensees. Seldin v. Northland Mortgage Co., 189 Neb. 175, 202 N.W.2d 174 (1972).It is a question of fact as to whether a transaction is a bona fide time sale or an installment loan. Berg v. Midwest Laundry Equipment Corp., 175 Neb. 423, 122 N.W.2d 250 (1963).None of defendants were licensed to engage in business under Installment Loan Act. Hills v. Burnett, 172 Neb. 370, 109 N.W.2d 739 (1961).In the absence of a bill of exceptions, dismissal of action to recover under Installment Loan Act was proper. Brierly v. Federated Finance Co., 168 Neb. 725, 97 N.W.2d 253 (1959).Suit against national bank to have installment note and conditional sale contract adjudged void was controlled as to venue by federal statute. Michigan Nat. Bank v. Robertson, 372 U.S. 591 (1963).In suit to declare lender's interest charge usurious where borrower paid maximum legal loan rate plus one hundred dollars, court found the latter charge only "incidental" to the extension of credit where borrower received other monetary consideration in addition to a loan. Campbell v. Liberty Financial Planning, Inc., 422 F.Supp. 1386 (D. Neb. 1976).