LRB-3260/1
RJM:kmg:rs
2003 - 2004 LEGISLATURE
February 2, 2004 - Introduced by Representative Montgomery, cosponsored by
Senator Schultz. Referred to Committee on Financial Institutions.
AB792,1,6 1An Act to amend 138.052 (2) (a) 2., 138.052 (9), 138.056 (3) (a), chapter 428
2(title), 428.101 (intro.), 428.101 (3), 428.102 (intro.), 428.102 (2), 428.103 (1)
3(intro.) and 428.106; and to create subchapter I (title) of chapter 428 [precedes
4428.101] and subchapter II of chapter 428 [precedes 428.202] of the statutes;
5relating to: regulating certain consumer mortgage lenders, granting
6rule-making authority, and providing a penalty.
Analysis by the Legislative Reference Bureau
This bill creates a subchapter of the statutes regulating certain consumer
mortgage loans, defined as "covered loans." Significant provisions include the
following:
Scope and definitions
This bill creates several prohibitions and requirements applicable to covered
loans and the lenders that make them. The bill generally defines "covered loan" as
a consumer transaction that involves real property located in this state, that is
secured by the consumer's principal dwelling, and in which either: 1) the annual
percentage rate at consummation will exceed, by more than eight percent for
first-lien loans or by more than ten percent for subordinate-lien loans, the yield on
specified U.S. Treasury securities; or 2) the total points and fees payable by the
consumer at or before loan closing will exceed the greater of eight percent of the total

loan amount or $400. (The $400 amount is adjusted annually on January 1 by the
annual percentage change in the Consumer Price Index that was reported on the
preceding June 1).
The bill defines "lender" as a person who originates a covered loan and to whom
the covered loan is initially payable. "Lender" does not include an assignee of a
covered loan or any person who, for at least 12 consecutive months, has failed to
originate any covered loans.
Prohibitions and requirements on lenders and others
The bill imposes all of the following prohibitions and requirements:
(1) With certain exceptions, no lender may make a covered loan that requires,
or that permits the lender to require, a payment that is more than twice as large as
the average of all earlier scheduled payments, unless the payment becomes due at
least 60 months after the date on which the loan is made.
(2) No lender may make a covered loan that permits the lender or an assignee
of the loan to demand payment of the outstanding balance before the original
maturity date, except in cases of default, fraud, or material misrepresentation by the
consumer or any act or omission by the consumer that adversely affects the lender's
or assignee's security for the loan or any right of the lender or assignee in that
security or in certain cases where the real property that is pledged as security for the
loan has been sold.
(3) With certain exceptions, no lender may make a covered loan with a payment
schedule that causes the principal balance to increase.
(4) No lender may make a covered loan that imposes or permits the lender or
an assignee of the loan to impose an increase in the interest rate as a result of the
consumer's default.
(5) No lender may make a covered loan that includes a payment schedule that
consolidates more than two scheduled payments and pays them in advance out of the
proceeds of the loan.
(6) No lender may engage in a pattern or practice of making covered loans to
consumers who have collateral but who, considering their current and expected
income, current obligations, and employment status, would be unable at the time of
application to make the scheduled payments under the loans.
(7) With certain exceptions, no lender may make a covered loan that refinances
an existing covered loan that the lender made to the same consumer, unless the
refinancing takes place at least one year after the date on which the loan being
refinanced was made or the refinancing is in the interest of the consumer. In
addition, with certain exceptions, no assignee or servicer of a covered loan may make
a covered loan that refinances the covered loan, unless the refinancing takes place
at least one year after the date on which the loan being refinanced was made or the
refinancing is in the interest of the consumer. No lender, assignee of a covered loan,
or servicer may engage in a pattern or practice of evading these prohibitions.
(8) No lender may pay proceeds of a covered loan to a person who is under
contract to make home improvements, as specified in the bill, unless the payment is
made by an instrument that is payable to the consumer or jointly to the consumer
and the person who is under contract or, with the consent of the consumer, the

payment is made through a third party in accordance with a written agreement
signed by the consumer, the lender, and the person under contract.
(9) No lender may knowingly contract with any person who is engaged in work
as a mortgage banker or mortgage broker but who has not obtained the registration
required by law.
(10) No lender, mortgage banker, mortgage broker, loan originator (a type of
agent of a mortgage banker or mortgage broker), or licensed lender (a person licensed
by the Department of Financial Institutions (DFI) to make certain high interest
loans) may knowingly make, propose, or solicit fraudulent, false, or misleading
statements on any document relating to a covered loan.
(11) No lender, mortgage banker, mortgage broker, loan originator, or licensed
lender may recommend or encourage an individual to default on an existing loan or
other obligation before and in connection with the making of a covered loan that
refinances all or any portion of that existing loan or obligation.
Prepayment
With certain exceptions, the bill allows a consumer to prepay a covered loan at
any time without penalty if the payment is made in the context of a refinancing of
the covered loan and if the covered loan is held by the refinancing lender. The bill
allows the servicer of a covered loan to impose a prepayment penalty, unless the
servicer is also the lender that holds the loan at the time of the refinancing.
Required notice
The bill requires a lender to ensure that the consumer is given a specified notice
at least three business days before the lender makes the applicable covered loan.
Municipal authority
The bill prohibits any city, village, town, or county from enacting an ordinance
that regulates a matter specifically governed under the bill or under a rule
promulgated pursuant to the bill. The bill also retroactively invalidates any such
ordinance in existence when the bill takes effect.
Administration and penalties
The bill allows DFI to promulgate rules, perform investigations, hold contested
case hearings, and issue orders to administer and enforce the provisions created
under the bill. With certain exceptions, if the person required to appear at an
enforcement hearing fails to appear or if upon the record made at the hearing DFI
finds that a violation has been established, DFI may issue an order specifying any
of the following:
(1) That the person must cease and desist from the violation or practice and
make restitution for any actual damages suffered by a consumer.
(2) That the person must forfeit not more than $1,000 per violation or, if the
person willfully or knowingly violated this subchapter, not less than $1,000 nor more
than $10,000 per violation.
(3) That the person must pay to DFI the costs of its investigation.
(4) That a license, registration, or certification issued by DFI to the person is
suspended or revoked or will not be renewed.

(5) That any individual who is responsible for the violation must be removed
from working in any capacity related to the violation or related to activities regulated
by DFI.
(6) Any additional conditions that DFI considers reasonable.
However, it is a defense to any alleged violation if the person alleged to have
committed the violation establishes that the person acted in good faith while
committing the violation and that, no later than 60 days after the discovery of the
violation and before any investigation or other enforcement action by DFI, the person
notified the affected consumer of the violation and either made appropriate
adjustments to the loan to bring the loan into compliance or changed the terms of the
loan in a manner beneficial to the consumer so that the loan is no longer a covered
loan.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB792, s. 1 1Section 1. 138.052 (2) (a) 2. of the statutes is amended to read:
AB792,4,62 138.052 (2) (a) 2. The Except as provided in s. 428.207, the parties may agree
3that if a prepayment is made within 5 years of the date of the loan, then the lender
4shall receive an amount not exceeding 60 days' interest at the contract rate on the
5amount by which the aggregate principal prepayments for a 12-month period
6exceeds 20% of the original amount of the loan.
AB792, s. 2 7Section 2. 138.052 (9) of the statutes is amended to read:
AB792,4,118 138.052 (9) Chapters 421 to 428 427 and subch. I of ch. 428 do not apply to the
9refinancing, modification, extension, renewal or assumption of a loan which had an
10original principal balance in excess of $25,000 if the unpaid principal balance of the
11loan has been reduced to $25,000 or less.
AB792, s. 3 12Section 3. 138.056 (3) (a) of the statutes is amended to read:
AB792,5,513 138.056 (3) (a) A variable rate loan involving a mobile home transaction or
14using an approved index may be prepaid at any time in whole or in part without

1penalty. Other variable rate loans may be prepaid in whole or part without penalty
2within 30 days after notice of an increase in the interest rate and , except as provided
3in s. 428.207,
with the prepayment penalty under s. 138.052 (2) (a) 2. and 3. if
4prepayment is made before or after the 30-day period. This paragraph controls if
5there is a conflict with s. 138.052 (2) (a).
AB792, s. 4 6Section 4. Chapter 428 (title) of the statutes is amended to read:
AB792,5,97 chapter 428
8 first lien real estate
9and other mortgage loans
AB792, s. 5 10Section 5. Subchapter I (title) of chapter 428 [precedes 428.101] of the statutes
11is created to read:
AB792,5,1212 chapter 428
AB792,5,1413 Subchapter i
14 first lien real estate loans
AB792, s. 6 15Section 6. 428.101 (intro.) of the statutes is amended to read:
AB792,5,16 16428.101 Applicability. (intro.) This chapter subchapter applies to:
AB792, s. 7 17Section 7. 428.101 (3) of the statutes is amended to read:
AB792,5,2118 428.101 (3) Loans made on or after November 1, 1981, by a creditor to a
19customer and which are secured by a first lien real estate mortgage or equivalent
20security interest if the amount financed is $25,000 or less and if the loan is not subject
21to subch. II
.
AB792, s. 8 22Section 8. 428.102 (intro.) of the statutes is amended to read:
AB792,5,23 23428.102 Definitions. (intro.) In this chapter subchapter:
AB792, s. 9 24Section 9. 428.102 (2) of the statutes is amended to read:
AB792,6,2
1428.102 (2) "Creditor" means a person who regularly engages in, arranges for
2or procures from 3rd persons, loans within the scope of this chapter subchapter.
AB792, s. 10 3Section 10. 428.103 (1) (intro.) of the statutes is amended to read:
AB792,6,54 428.103 (1) (intro.) The following limitations shall apply to all loans subject to
5this chapter subchapter:
AB792, s. 11 6Section 11. 428.106 of the statutes is amended to read:
AB792,6,8 7428.106 Remedies. (1) Violations of this chapter subchapter may be enforced
8by a customer subject to this section and ss. 425.308 to 425.311.
AB792,6,15 9(2) With respect to a loan subject to this chapter subchapter, if the court as a
10matter of law finds that any aspect of the transaction, any conduct directed against
11the customer, by the creditor, or any result of the transaction is unconscionable, the
12court shall, in addition to the remedies and penalties set forth in this chapter
13subchapter, and a penalty not to exceed that specified in s. 428.103 (2), refuse to
14enforce the unconscionable aspect of the transaction or so limit the application of any
15unconscionable aspect or conduct to avoid any unconscionable result.
AB792,6,21 16(3) Notwithstanding other provisions of this chapter subchapter, a customer
17shall not be entitled to recover the specific penalties provided in ss. 428.103 (2) (a)
18and 428.104 (2) (a) if the person violating this chapter subchapter shows by a
19preponderance of the evidence that the violation was not intentional and resulted
20from a bona fide error notwithstanding the maintenance of procedures reasonably
21adapted to avoid such error.
AB792,7,2 22(4) Any action brought by a customer to enforce rights under sub. (1) shall be
23commenced within one year after the date of the last violation of this chapter
24subchapter, 2 years after consummation of the agreement or one year after the last

1payment, whichever is later. But in no event shall an action be commenced more
2than 6 years after the date of the last violation.
AB792,7,9 3(5) The administrator specified in s. 426.103, solely through the department
4of justice, may on behalf of any customer institute an action to enforce this chapter
5subchapter and to recover the damages and penalties provided for this chapter
6subchapter. In such action the administrator may obtain an order restraining by
7temporary or permanent injunctions any violation of this chapter subchapter. This
8subsection shall not be construed to incorporate or grant to the administrator with
9respect to the enforcement of this chapter subchapter, any of the provisions of ch. 426.
AB792, s. 12 10Section 12. Subchapter II of chapter 428 [precedes 428.202] of the statutes is
11created to read:
AB792,7,1212 chapter 428
AB792,7,1313 subchapter ii
AB792,7,1414 predatory mortgage lending
AB792,7,15 15428.202 Definitions. In this subchapter:
AB792,7,17 16(1) "Bridge loan" means a loan with a maturity of less than 18 months which
17requires only payments of interest until the time that the unpaid balance is due.
AB792,7,19 18(1m) "Business day" has the meaning that is specified under 12 CFR 226.2 (a)
19(6) for purposes of 12 CFR 226.31.
AB792,7,21 20(2) "Covered loan" means a transaction that involves real property located in
21this state and that is subject to 12 CFR 226.32.
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