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03 LC 30 0555
Senate Bill
53
By: Senators Cheeks of the 23rd, Starr of the 44th and Crotts of the 17th
By: Senators Cheeks of the 23rd, Starr of the 44th and Crotts of the 17th
A BILL TO BE
ENTITLED
AN ACT
AN ACT
To amend Chapter 6A of Title 7 of the Official Code of
Georgia Annotated, the "Georgia Fair Lending Act," so as to provide for
exclusions to the definition of creditor; to exclude certain fees from the
definition of points and fees; to provide for liability of creditors for
violations of the Act; to provide for violations of the Act by brokers; to
provide for related matters; to repeal conflicting laws; and for other
purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF
GEORGIA:
SECTION 1.
Chapter 6A of Title 7 of the Official Code of Georgia
Annotated, the "Georgia Fair Lending Act," is amended by striking paragraph (7)
of Code Section 7-6A-2, relating to definitions, and inserting in its place the
following:
"(7) 'Creditor' means a person who extends consumer credit that is subject to a finance charge or is payable by written agreement in more than four installmentsor a person who purchases or is assigned a home loan. Creditor
shall also mean any person brokering a home loan, which shall include any person
who directly or indirectly solicits, processes, places, or negotiates home loans
for others or offers to solicit, process, place, or negotiate home loans for
others or who closes home loans which may be in the
person´s
own name with funds provided by others and which loans are thereafter assigned
to the person providing the funding of such loans, provided that creditor shall
not include a person who is an attorney providing legal services in association
with the closing of a home loan. A creditor shall not include: (A) a
servicer; (B) an assignee; (C) a purchaser; or (D) any state or local housing
finance agency or any other state or local governmental or quasi-governmental
entity."
"(7) 'Creditor' means a person who extends consumer credit that is subject to a finance charge or is payable by written agreement in more than four installments
SECTION 2.
Said chapter is further amended by striking subparagraph (G)
of paragraph (13) of Code Section 7-6A-2, relating to definitions, and inserting
in its place the
following:
"(G) Points and fees shall not include:
(i) Taxes, filing fees, recording, and other charges and fees paid or to be paid to public officials for determining the existence of or for perfecting, releasing, or satisfying a security interest;
(ii) Bona fide and reasonable fees paid to a person other than the creditor or an affiliate of the creditor for the following: fees for tax payment services; fees for flood certification; fees for pest infestation and flood determination; appraisal fees; fees for inspections performed prior to closing; credit reports; surveys; attorneys´ fees, if the borrower has the right to select the attorney from an approved list or otherwise; notary fees; escrow charges, so long as not otherwise included under subparagraph (A) of this paragraph; title insurance premiums; and fire and hazard insurance and flood insurance premiums, provided that the conditions in 12 C.F.R. 226.4(d)(2) are met.;
(iii) Bona fide fees paid to a federal or state government agency that insures payment of some portion of a home loan including, but not limited to, the Federal Housing Administration, the Department of Veterans Affairs, the United States Department of Agriculture for rural development loans, or the Georgia Housing and Finance Authority."
"(G) Points and fees shall not include:
(i) Taxes, filing fees, recording, and other charges and fees paid or to be paid to public officials for determining the existence of or for perfecting, releasing, or satisfying a security interest;
(ii) Bona fide and reasonable fees paid to a person other than the creditor or an affiliate of the creditor for the following: fees for tax payment services; fees for flood certification; fees for pest infestation and flood determination; appraisal fees; fees for inspections performed prior to closing; credit reports; surveys; attorneys´ fees, if the borrower has the right to select the attorney from an approved list or otherwise; notary fees; escrow charges, so long as not otherwise included under subparagraph (A) of this paragraph; title insurance premiums; and fire and hazard insurance and flood insurance premiums, provided that the conditions in 12 C.F.R. 226.4(d)(2) are met
(iii) Bona fide fees paid to a federal or state government agency that insures payment of some portion of a home loan including, but not limited to, the Federal Housing Administration, the Department of Veterans Affairs, the United States Department of Agriculture for rural development loans, or the Georgia Housing and Finance Authority."
SECTION 3.
Said chapter is further amended by striking Code Section
7-6A-6, relating to affirmative claims against creditors, and inserting in its
place the
following:
"7-6A-6.
(a) Notwithstanding any other provision of law, where a home loan was made, arranged, or assigned by a person selling home improvements to the dwelling of a borrower, the borrower may assert against the creditor, any assignee, or
holder in any capacity all affirmative claims and any defenses that the
borrower may have against the seller or home improvement contractor, provided
that this subsection shall not apply to loans other than high-cost home loans
unless applicable law requires a certificate of occupancy, inspection, or
completion to be obtained and said certificate is not
obtained.
(b)Notwithstanding any other
provision of law, any person who purchases or is otherwise assigned a high-cost
home loan shall be subject to all affirmative claims and any defenses with
respect to the loan that the borrower could assert against the original creditor
or creditors of the loan. Notwithstanding any other provision of law
including, but not limited to any other provision of this chapter, no person
other than a creditor shall be liable for any violation of this
chapter.
(c) Notwithstanding any other provision of law, a borrower of a covered home loan, after notice of acceleration or foreclosure of the loan or if in default more than 60 days, may assert a violation of this chapter against any creditoror servicer by
way of offset in an original action, as a claim to enjoin foreclosure, as a
defense or counterclaim to an action to collect amounts owed, or to preserve or
obtain possession of the home secured by the home
loan.
(d) It shall be a violation of this chapter for any person to attempt in bad faith to avoid the application of this chapter by dividing any loan transaction into separate parts or structuring a home loan transaction as an open-end loan for the purpose of evading the provisions of this chapter when the loan would have been a high-cost home loan if the loan had been structured as a closed-end loan or engaging in any other subterfuge with the intent of evading any provision of this chapter."
"7-6A-6.
(a) Notwithstanding any other provision of law, where a home loan was made, arranged, or assigned by a person selling home improvements to the dwelling of a borrower, the borrower may assert against the creditor
(b)
(c) Notwithstanding any other provision of law, a borrower of a covered home loan, after notice of acceleration or foreclosure of the loan or if in default more than 60 days, may assert a violation of this chapter against any creditor
(d) It shall be a violation of this chapter for any person to attempt in bad faith to avoid the application of this chapter by dividing any loan transaction into separate parts or structuring a home loan transaction as an open-end loan for the purpose of evading the provisions of this chapter when the loan would have been a high-cost home loan if the loan had been structured as a closed-end loan or engaging in any other subterfuge with the intent of evading any provision of this chapter."
SECTION 4.
Said chapter is further amended by striking subsection (f)
of Code Section 7-6A-7, relating to violation of chapter, and inserting in its
place the
following:
"(f) The brokering of a home loan by a broker registered or licensed or required to be registered or licensed as a broker under the laws of this state or any other jurisdiction that violates the provisions of this chapter shall constitute a violation of such provisions."
"(f) The brokering of a home loan by a broker registered or licensed or required to be registered or licensed as a broker under the laws of this state or any other jurisdiction that violates the provisions of this chapter shall constitute a violation of such provisions."
SECTION 5.
All laws and parts of laws in conflict with this Act are
repealed.