138.056(1)(a)3.
3. The monthly average yield on U.S. treasury securities adjusted to a constant maturity of 1, 2, 3 or 5 years, made available by the federal reserve board.
138.056(1)(a)4.
4. An index readily verifiable by borrowers and beyond the control of an individual lender and approved by:
138.056(1)(a)4.a.
a. The division of savings and loan, if the lender is a savings and loan association or savings bank;
138.056(1)(a)4.c.
c. The commissioner of insurance, if the lender is an insurance company; or
138.056(1)(c)
(c) "Mobile home transaction" means a consumer credit sale, as defined in
s. 421.301 (9), of or a consumer loan, as defined in
s. 421.301 (12), secured by a first lien or equivalent security interest in a mobile home as defined in
s. 218.10 (2).
138.056(1)(d)
(d) "Variable rate loan" means a mobile home transaction or a loan as defined in
s. 138.052 (1) (b), the terms of which permits the interest rate to be increased or decreased.
138.056(2)
(2) Required terms. A variable rate loan contract shall:
138.056(2)(b)
(b) Use an approved index if it provides for adjustments to the interest rate corresponding to an index. The initial index value shall be the most recently available value of the index prior to the date of closing of the loan. The interest rate at adjustment shall reflect the difference, in reference to the interest rate of the variable rate loan at the date of closing, between the initial index value and the index value most recently available as of the date notice of the interest rate adjustment is mailed under
sub. (4) except the lender may decrease the interest rate or decline to increase the interest rate at any time. The interest rate shall be decreased to reflect any downward movement of the index except to the extent the decrease offsets increases in the index not implemented as interest rate increases. An increase in the index permitting the lender to increase the interest rate but declined by the lender for any rate adjustment interval may be carried over and applied in succeeding interest rate adjustment intervals to the extent the increase is not offset by subsequent decreases in the index. The variable rate loan contract may provide for minimum interest rate change increments which shall apply to both increases and decreases. The variable rate loan contract may limit interest rate decreases only if interest rate increases are restricted at least to the same extent.
138.056(2)(c)
(c) Provide for no more than a one percent increase in the interest rate not more than once each 6 months and permit decreases in the interest rate to be made at any time, if it does not provide for adjustments to the interest rate corresponding to an approved index. If an increase is waived, the lender may at any time increase the interest rate to a rate equal to the interest rate if all increases were made at the first opportunity.
138.056(3)(a)(a) A variable rate loan involving a mobile home transaction or using an approved index may be prepaid at any time in whole or in part without penalty. Other variable rate loans may be prepaid in whole or part without penalty within 30 days after notice of an increase in the interest rate and with the prepayment penalty under
s. 138.052 (2) (a) 2. and
3. if prepayment is made before or after the 30-day period. This paragraph controls if there is a conflict with
s. 138.052 (2) (a).
138.056(3)(b)
(b) No costs or fees may be charged in connection with adjustment to the interest rate of a variable rate loan or an adjustment to the payment, principal balance or term implementing an interest rate adjustment.
138.056(4)
(4) Notice of interest payment changes. 138.056(4)(a)(a) If a change in the interest rate occurs, the lender shall give the borrower notice of the change:
138.056(4)(a)1.
1. At least 30 days before the change if an increase in periodic payments other than the final payment is required.
138.056(4)(b)
(b) The notice shall be mailed to the borrower's last-known address and shall contain all of the following information:
138.056(4)(b)3.
3. The changes in any index which cause the interest rate change.
138.056(4)(b)4.
4. The amount of the contractual monthly principal and interest payments required as a result of the change.
138.056(5)
(5) Negative amortization. The principal balance of a variable rate loan may be increased to implement an interest rate adjustment only if within 10 years after the loan is made, and at least every 5 years thereafter, the payment amount is adjusted to a level at least sufficient to amortize the loan at the then existing interest rate and principal balance over the remaining term of the loan. The payment amount shall be maintained at least at that level until subsequently adjusted under this subsection, except that the payment amount shall be decreased to reflect any decrease in the interest rate.
138.056(6)
(6) Disclosure. Before making a variable rate loan, the lender shall disclose all of the following information to at least one of the borrowers:
138.056(6)(a)
(a) That the loan contract contains a variable interest rate provision.
138.056(6)(b)
(b) An identification of any approved index used in the loan contract and the current base of the approved index.
138.056(6)(c)
(c) The borrower's prepayment rights on receiving notice of a change in the interest rate.
138.056(6)(d)
(d) That a notice of any interest rate increase must be given to the borrower.
138.056(7)
(7) Priority. Any interest accrued or added to the principal of a variable rate loan to implement an interest rate adjustment retains the priority of the original mortgage or equivalent security interest.
138.056(8)
(8) Applicability. This section does not apply to any of the following:
138.056(8)(a)
(a) A loan or forbearance to a corporation or a limited liability company.
138.056(8)(b)
(b) A loan that is primarily for a business purpose or for an agricultural purpose, as defined in
s. 421.301 (4).
138.056(8)(d)
(d) A transaction initially entered into before November 1, 1981.
138.057
138.057
Penalties. Any lender who intentionally violates
s. 138.053,
138.055 or
138.056 is liable to the borrower for all excess interest collected, plus interest thereon at the rate of 5% per year. In addition, the borrower may recover actual damages, including incidental and consequential damages, sustained by reason of the violation.
138.057 History
History: 1975 c. 387;
1977 c. 26;
1981 c. 45 s.
51.
138.058
138.058
Reverse mortgage loans. 138.058(1)(a)
(a) "Qualified lender" means a lender approved by the federal department of housing and urban development to enter into a loan insured by the federal government under
12 USC 1715z-20.
138.058(1)(b)
(b) "Reverse mortgage loan" means a loan, or an agreement to lend, which is secured by a first mortgage on the borrower's principal residence, is insured by the federal government under
12 USC 1715z-20 and requires repayment as specified in the loan agreement under any of the following conditions:
138.058(1)(b)2.
2. All the borrowers have sold the residence or conveyed title to the residence.
138.058(1)(b)3.
3. All the borrowers have moved permanently from the residence.
138.058(2)
(2) Reverse mortgages permitted. A qualified lender may enter into reverse mortgage loans.
138.058(3)
(3) Treatment of reverse mortgage loan proceeds by public benefit programs. 138.058(3)(a)(a) Reverse mortgage loan payments made to a borrower shall be treated as proceeds from a loan and not as income for the purpose of determining eligibility and benefits under means-tested programs of aid to individuals.
138.058(3)(b)
(b) Undisbursed funds shall be treated as equity in a borrower's residence and not as proceeds from a loan for the purpose of determining eligibility and benefits under means-tested programs of aid to individuals.
138.058(3)(c)
(c) This subsection applies to any law relating to payments, allowances, benefits or services provided on a means-tested basis by this state, including supplemental security income, low-income energy assistance, property tax deferral, medical assistance and general assistance.
138.058 History
History: 1993 a. 88.
138.06
138.06
Effect of usury and penalties. 138.06(1)
(1) All instruments, contracts or securities providing a rate of interest exceeding the rate allowed in
s. 138.05,
138.051 or
138.052 shall be valid and effectual to secure the repayment of the principal amount loaned in excess of $2,000; but no interest may be recovered thereon except upon bottomry and respondentia bonds and contracts.
138.06(2)
(2) Any lender or agent of a lender who violates
s. 138.05,
138.051 or
138.052 may be fined not less than $25 nor more than $500, or imprisoned not more than 6 months, or both.
138.06(3)
(3) Any borrower who paid interest on a loan or forbearance at a rate greater than the rate allowed in
s. 138.05,
138.051 or
138.052 may personally or by personal representative recover in an action against the lender or personal representative the amount of interest, principal and charges paid on such loan or forbearance but not more than $2,000 of principal, if the action is brought within the time provided by
s. 893.62.
138.06(4)
(4) Any borrower to whom a lender or agent of a lender fails to provide the statement required in
s. 138.05 (4) with respect to a loan or forbearance may by himself or herself or his or her personal representative recover in an action against the lender or the lender's personal representative an amount equal to all interest and charges paid upon such loan or forbearance but not less than $50 plus reasonable attorney fees incurred in such action.
138.06(5)
(5) Notwithstanding
subs. (1) to
(4), if any violation of
s. 138.05,
138.051 or
138.052 is the result of an unintentional mistake which the lender or agent of the lender corrects upon demand, such unintentional violation shall not affect the enforceability of any provision of the loan contract as so corrected nor shall such violation subject the lender or the agent of the lender to any penalty or forfeiture specified in this section.
138.06(6)
(6) In connection with a sale of goods or services on credit or any forbearance arising therefrom prior to October 9, 1970, there shall be no allowance of penalties under this section for violation of
s. 138.05, except as to those transactions on which an action has been reduced to a final judgment as of May 12, 1972.
138.06(7)
(7) Notwithstanding
sub. (6), a seller shall, with respect to a transaction described in
sub. (6), refund or credit the amount of interest, to the extent it exceeds the rate permitted by
s. 138.05 (1) (a), which was charged in violation of
s. 138.05 and paid by a buyer since October 8, 1968, upon individual written demand therefor made on or before March 1, 1973, and signed by such buyer. A seller who fails within a reasonable time after such demand to make such refund or credit of excess interest shall be liable in an individual action in an amount equal to 3 times the amount thereof, together with reasonable attorney fees.
138.06(8)
(8) This section does not apply to a loan or forbearance made on or after November 1, 1981.
138.06 Annotation
Sub. (7) is constitutional. Wiener v. J. C. Penney Co. 65 W (2d) 139, 222 NW (2d) 149.
138.06 Annotation
Class actions for the recovery of usurious interest charged by revolving credit plans are not precluded by (3). Mussallem v. Diners' Club, Inc. 69 W (2d) 437, 230 NW (2d) 717.
138.06 Annotation
Sub. (6) is constitutional. 60 Atty. Gen. 198.
138.09
138.09
Precomputed loan law. 138.09(1d)
(1d) In this section, "division" means the division of banking.
138.09(1m)
(1m) Before any person may do business under this section or charge the interest authorized by
sub. (7) and before any creditor other than a bank, savings bank, savings and loan association or credit union may assess a finance charge on a consumer loan in excess of 18% per year, that person shall first obtain a license from the division. Applications for a license shall be in writing and upon forms provided for this purpose by the division. An applicant at the time of making an application shall pay to the division a nonrefundable $300 fee for investigating the application and a $500 annual license fee for the period terminating on the last day of the current calendar year. If the cost of the investigation exceeds $300, the applicant shall upon demand of the division pay to the division the amount by which the cost of the investigation exceeds the nonrefundable fee.
138.09(2)
(2) The division may also require the applicant to file with the division, and to maintain in force, a bond in which the applicant shall be the obligor, in a sum not to exceed $5,000 with one or more corporate sureties licensed to do business in Wisconsin, whose liability as such sureties shall not exceed the sum of $5,000 in the aggregate, to be approved by the division, and such bond shall run to the state of Wisconsin for the use of the state and of any person or persons who may have a cause of action against the obligor of the bond under the provisions of this section. Such bonds shall be conditioned that the obligor will conform to and abide by each and every provision of this section, and will pay to the state or to any person or persons any and all moneys that may become due or owing to the state or to such person or persons from the obligor under and by virtue of the provisions of this chapter.
138.09(3)(a)(a) Upon the filing of such application and the payment of such fee, the division shall investigate the relevant facts, and if the division shall find that the character and general fitness and the financial responsibility of the applicant, and the members thereof if the applicant is a partnership, limited liability company or association, and the officers and directors thereof if the applicant is a corporation, warrant the belief that the business will be operated in compliance with this section the division shall thereupon issue a license to said applicant to make loans in accordance with the provisions of this section. If the division shall not so find, the division shall deny such application.
138.09(3)(b)
(b) Every license shall remain in force and effect until suspended or revoked in accordance with this section or surrendered by the licensee, and every licensee shall, on or before each December 10, pay to the division the annual license fee for the next succeeding calendar year.
138.09(3)(c)
(c) Such license shall not be assignable and shall permit operation under it only at or from the location specified in the license at which location all loans shall be consummated, but this provision shall not prevent the licensee from making loans under this section which are not initiated or consummated by face to face contact away from the licensed location if permitted by the division in writing or by rule or at an auction sale conducted or clerked by a licensee.
138.09(3)(d)
(d) A separate license shall be required for each place of business maintained by the licensee. Whenever a licensee shall change the address of its place of business to another location within the same city, village or town the licensee shall at once give written notice thereof to the division, which shall replace the original license with an amended license showing the new address, provided the location meets with the requirements of
par. (e). No change in the place of business of a licensee to a different city, village or town shall be permitted under the same license.
138.09(3)(e)
(e) A licensee may conduct, and permit others to conduct, at the location specified in its license, any one or more of the following businesses not subject to this section: A business engaged in making loans for business or agricultural purposes or exceeding $25,000 in principal amount except that all such loans having terms of 49 months or more are subject to
sub. (7) (gm) 2. or
4., a business engaged in making first lien real estate mortgage loans under
ss. 138.051 to
138.06, a loan, finance or discount business under
s. 218.01, or an insurance business, or a currency exchange under
s. 218.05, or a seller of checks business under
ch. 217; but merchandise shall not be sold at such location; and no other business shall be conducted at such location unless written authorization is granted the licensee by the division.
138.09(3)(f)
(f) Every licensee shall make an annual report to the division for each calendar year on or before March 15 of the following year. Such report shall cover business transacted by the licensee under the provisions of this section and shall give such reasonable and relevant information as the division may require. Such reports shall be made upon blanks furnished by the division and shall be signed and verified by the oath or affirmation of the licensee if an individual, one of the partners if a partnership, a member or manager if a limited liability company or an officer of the corporation or association if a corporation or association. Any licensee operating under this section shall keep the records affecting loans made pursuant to this section separate and distinct from the records of any other business of such licensee.
138.09(4)
(4) The division for the purpose of discovering violations of this chapter may cause an investigation to be made of the business of the licensee transacted under this section, and shall cause an investigation to be made of convictions reported to the division by any district attorney for violation by a licensee of this chapter. The place of business, books of account, papers, records, safes and vaults of said licensee shall be open to inspection and examination by the division for the purpose of such investigation and the division may examine under oath all persons whose testimony the division may require relative to said investigation. The division may, upon notice to the licensee and reasonable opportunity to be heard, suspend or revoke such license after such hearing if:
138.09(4)(a)
(a) The licensee has violated any provision of this chapter and if the division determines such violation justifies the suspension or revocation of the license;
138.09(4)(b)
(b) Any fact or condition exists which, if it had existed at the time of the original application for such license, would have warranted the division in refusing to issue such license; and
138.09(4)(c)
(c) The licensee has failed to pay the annual licensee fee or to maintain in effect the bond, if any, required under
sub. (2).
138.09(4a)
(4a) Any licensee and any other person aggrieved by any order of the division has the right to appeal to the board of review under this section, provided a written notice of appeal is served upon the division and upon the chairperson or secretary of the consumer credit review board under
s. 220.037 within 10 days from the date of the division's order. Upon service of a written notice of appeal as herein provided the review board shall hold a hearing within a reasonable time thereafter. The review board shall give the parties a written notice of the time and place said hearing will be held. The cost of any investigation or examination or hearing, including witness fees or any other expenses, conducted by the division or the review board shall be paid by the licensee so examined or by the appellant within 30 days after demand therefor by the division, and the state may maintain an action for the recovery of such costs and expenses in any court of competent jurisdiction, except that no cost shall be charged an appellant by the review board unless the board sustains the division.
138.09(5)
(5) No licensee shall advertise, print, display, publish, distribute or broadcast or cause to be printed, displayed, published, distributed or broadcast in any manner any statement with regard to the rates, terms or conditions for the lending of money, credit, goods or things in action which is false or calculated to deceive. With respect to matters specifically governed by
s. 423.301, compliance with such section satisfies the requirements of this section.
138.09(6)(a)(a) Except as provided in
par. (b), the licensee shall keep such books and records in the licensee's place of business as in the opinion of the division will enable the division to determine whether the provisions of this chapter are being observed. Every such licensee shall preserve the records of final entry used in such business, including cards used in the card system, if any, for a period of at least 2 years after the making of any loan recorded therein.
138.09(6)(b)
(b) A licensee may keep the books and records specified in
par. (a) at a single location inside or outside of this state if the books and records are kept at a location licensed under this section. The licensee shall organize the books and records by the place of business where the records originated and shall keep the books and records separate from other records for business conducted at that location. Actual costs incurred by the division to examine books and records maintained outside of this state shall be paid by the licensee.
