§ 34-25.2-8 - Civil action.
SECTION 34-25.2-8
§ 34-25.2-8 Civil action. – (a) An aggrieved borrower or borrowers may bring a civil action for injunctiverelief or damages in a court of competent jurisdiction for any violation ofthis chapter.
(b) In addition, the court shall, as the court may considerappropriate:
(1) Issue an order or injunction rescinding a home mortgageloan contract which violates this chapter, or barring the lender fromcollecting under any home mortgage loan which violates this chapter;
(2) Issue an order or injunction barring any judicial ornonjudicial foreclosure or other lender action under the mortgage or deed oftrust securing any home mortgage loan which violates this chapter;
(3) Issue an order or injunction reforming the terms of thehome mortgage loan to conform to this chapter;
(4) Issue an order or injunction enjoining a lender fromengaging in any prohibited conduct; or
(5) Impose such other relief, including injunctive relief, asthe court may consider just and equitable.
(c) Originating or brokering a home loan that violates aprovision of this section shall constitute a violation of this chapter.
(d) A creditor in a home loan who, when acting in good faith,fails to comply with the provisions of this act, will not be deemed to haveviolated this section if the creditor establishes that either:
(1) Within thirty (30) days of the loan closing and prior tothe institution of any action under this chapter, the lender notifies theborrower of the compliance failure and makes appropriate restitution andwhatever adjustments are necessary are made to the loan, at the choice of theborrower, to either:
(i) make the high-cost home mortgage loan satisfy therequirements of this chapter; or
(ii) change the terms of the loan in a manner beneficial tothe borrower so that the loan will no longer be considered a high-cost homemortgage loan; or
(2) The compliance failure was not intentional and resultedfrom a bona fide error notwithstanding the maintenance procedures reasonablyadapted to avoid the errors, and within sixty (60) days after the discovery ofthe compliance failure and before the institution of any action under thischapter or the receipt of written notice of the compliance failure, theborrower is notified of the compliance failure, appropriate restitution is madeand whatever adjustments are necessary are made to the loan, at the choice ofthe borrower, to either:
(i) make the high-cost home mortgage loan satisfy therequirements of this chapter; or
(ii) change the terms of the loan in a manner beneficial tothe borrower so that the loan will no longer be considered a high-cost homemortgage loan.
Examples of a bona fide error may include clerical errors,errors in calculation, computer malfunction and programming, and printingerrors. An error in legal judgment with respect to a person's obligation underthis chapter shall not be considered a bona fide error.
(e) Notwithstanding any provision to the contrary containedin this chapter regarding costs and attorneys' fees, in any action institutedby a borrower who alleges that the defendant violated subsection 34-25.2-5(b),the borrower shall not be entitled to costs and attorneys' fees if thepresiding judge, in the judge's discretion, finds that, before the institutionof the action by the borrower, the lender made a reasonable offer to cure andthat offer was rejected by the borrower.