Section 4995.2 Of Division 1.10. Higher-priced Mortgage Loans From California Financial Code >> Division 1.10.
4995.2
. (a) This division shall apply to any licensed person who in
bad faith attempts to avoid the application of this division by
doing either of the following:
(1) Dividing any loan transaction into separate parts for the
purpose and with the intent of evading the provisions of this
division.
(2) Any other subterfuge.
(b) Notwithstanding any other provision of law, a licensed person
shall not make, or cause to be made, any false, deceptive, or
misleading statement or representation in connection with a
higher-priced mortgage loan.
(c) A mortgage broker who arranges only higher-priced mortgage
loans shall disclose that fact to a borrower, both orally and in
writing, at the time of initially engaging in mortgage brokerage
services with that borrower.
(d) A mortgage broker who provides mortgage brokerage services
shall not steer, counsel, or direct a borrower to accept a loan at a
higher cost than that for which the borrower could qualify based upon
the loans offered by the persons with whom the broker regularly does
business.
(e) (1) A mortgage broker who provides mortgage brokerage services
for a borrower shall not receive compensation, including a yield
spread premium, fee, commission, or any other compensation, for
arranging a higher-priced mortgage loan with a prepayment penalty
that exceeds the compensation that the mortgage broker would
otherwise receive for arranging that higher-priced mortgage loan
without a prepayment penalty.
(2) When providing mortgage brokerage services for a borrower, a
mortgage broker shall receive the same compensation for providing
those services whether paid by the lender, borrower, or a third
party.
(f) No licensed person shall recommend or encourage default on an
existing loan or other debt prior to and in connection with the
closing or planned closing of a higher-priced mortgage loan that
refinances all or any portion of the existing loan or debt.
(g) A licensed person shall not make a higher-priced mortgage loan
that contains a provision for negative amortization. This
subdivision shall not preclude a licensed person from entering into a
subsequent agreement with a borrower to capitalize payments as a
means of permitting a borrower to cure or prevent a delinquency.
(h) A licensed person who makes a higher-priced mortgage loan and
who, when acting in good faith, fails to comply with this section,
shall not be liable if the licensed person establishes either of the
following:
(1) Within 90 days of the loan closing and prior to the
institution of any action against the licensed person under this
section, the licensed person did all of the following:
(A) Notified the borrower of the compliance failure.
(B) Tendered appropriate restitution.
(C) Offered, at the borrower's option, either to make the
higher-priced mortgage loan comply with the requirements of this
division or change the terms of the loan in a manner beneficial to
the borrower so that the loan will no longer be considered a
higher-priced mortgage loan subject to the provisions of this
division.
(D) Within a reasonable period of time following the borrower's
election of remedies, took appropriate action based on the borrower's
choice.
(2) (A) The compliance failure was not intentional and resulted
from a bona fide error notwithstanding the maintenance of procedures
reasonably adopted to avoid those errors, and within 120 days after
receipt of a complaint or the discovery of the compliance failure or
the licensed person's receipt of written notice of the compliance
failure, the licensed person did all of the following:
(i) Notified the borrower of the compliance failure.
(ii) Tendered appropriate restitution.
(iii) Offered, at the borrower's option, either to make the
higher-priced mortgage loan comply with the requirements of this
division or change the terms of the loan in a manner beneficial to
the borrower so that the loan will no longer be considered a
higher-priced mortgage loan subject to the provisions of this
division.
(iv) Within a reasonable period of time following the borrower's
election of remedies, took appropriate action based on the borrower's
choice.
(B) For purposes of this subdivision, examples of a bona fide
error include clerical, calculation, computer malfunction and
programming, and printing errors.