MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Banks and Banking; Judiciary A

By: Representative Guice

AN ACT TO CREATE NEW CODE SECTIONS TO BE CODIFIED AS SECTIONS 63-19-57, 75-67-137 AND 75-67-245, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT LICENSEES UNDER THE MOTOR VEHICLE SALES FINANCE LAW, THE SMALL LOAN REGULATORY LAW AND THE SMALL LOAN PRIVILEGE TAX LAW SHALL NOT BE LIABLE FOR ANY ACT OR OMISSION IN CONFORMITY WITH ANY RULE OR REGULATION OF THE COMMISSIONER OF BANKING AND CONSUMER FINANCE OR ANY OTHER STATE OR FEDERAL AGENCY OR ANY OPINION OF THE ATTORNEY GENERAL; TO PROVIDE THAT SUCH LICENSEES, ACTING IN CONFORMITY WITH A WRITTEN INTERPRETATION OF A STATE OR FEDERAL AGENCY OR DEPARTMENT, SHALL BE PRESUMED TO HAVE ACTED IN ACCORDANCE WITH APPLICABLE LAW; TO AMEND SECTIONS 7-5-25, 63-19-17, 63-19-55 AND 75-67-237, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. The following shall be codified as Section 63-19-57, Mississippi Code of 1972:

63-19-57. (1) A licensee under this chapter shall have no liability for any act or practice done or omitted in conformity with (a) any rule or regulation of the commissioner, or (b) any rule, regulation, interpretation or approval of any other state or federal agency or any opinion of the Attorney General, notwithstanding that after such act or omission has occurred the rule, regulation, interpretation, approval or opinion is amended, rescinded, or determined by judicial or other authority to be invalid for any reason.

(2) A licensee under this chapter, acting in conformity with a written interpretation or approval by an official or employee of any state or federal agency or department, shall be presumed to have acted in accordance with applicable law, notwithstanding that after such act has occurred, the interpretation or approval is amended, rescinded, or determined by judicial or other authority to be incorrect or invalid for any reason.

SECTION 2. The following shall be codified as Section 75-67-137, Mississippi Code of 1972:

75-67-137. (1) A licensee under this article shall have no liability for any act or practice done or omitted in conformity with (a) any rule or regulation of the commissioner, or (b) any rule, regulation, interpretation or approval of any other state or federal agency or any opinion of the Attorney General, notwithstanding that after such act or omission has occurred the rule, regulation, interpretation, approval or opinion is amended, rescinded, or determined by judicial or other authority to be invalid for any reason.

(2) A licensee under this article, acting in conformity with a written interpretation or approval by an official or employee of any state or federal agency or department, shall be presumed to have acted in accordance with applicable law, notwithstanding that after such act has occurred, the interpretation or approval is amended, rescinded, or determined by judicial or other authority to be incorrect or invalid for any reason.

SECTION 3. The following shall be codified as Section 75-67-245, Mississippi Code of 1972:

75-67-245. (1) A licensee under this article shall have no liability for any act or practice done or omitted in conformity with (a) any rule or regulation of the commissioner, or (b) any rule, regulation, interpretation or approval of any other state or federal agency or any opinion of the Attorney General, notwithstanding that after such act or omission has occurred the rule, regulation, interpretation, approval or opinion is amended, rescinded, or determined by judicial or other authority to be invalid for any reason.

(2) A licensee under this article, acting in conformity with a written interpretation or approval by an official or employee of any state or federal agency or department, shall be presumed to have acted in accordance with applicable law, notwithstanding that after such act has occurred, the interpretation or approval is amended, rescinded, or determined by judicial or other authority to be incorrect or invalid for any reason.

SECTION 4. Section 7-5-25, Mississippi Code of 1972, is amended as follows:

7-5-25. The Attorney General shall give his opinion in writing, without fee, to the Legislature, or either house or any committee thereof, and to the Governor, the Secretary of State, the Auditor of Public Accounts, the State Treasurer, the Superintendent of Public Education, the Insurance Commissioner, the Commissioner of Agriculture and Commerce, the State Geologist,  * * * the State Librarian, the Director of Archives and History, the Adjutant General, the State Board of Health, the Commissioner of Corrections, * * * the Public Service Commission, Chairman of the State Tax Commission, the State Forestry Commission, the Transportation Commission, and any other state officer, department or commission operating under the law, or which may be hereafter created; the trustees and heads of any state institution, the trustees and heads of the universities and the state colleges, the district attorneys, the boards of supervisors of the several counties, the sheriffs, the chancery clerks, the circuit clerks, the superintendents of education, the tax assessors, county surveyors, the county attorneys, the attorneys for the boards of supervisors, mayor or council or board of aldermen of any municipality of this state, and all other county officers (and no others), when requested in writing, upon any question of law relating to their respective offices.

When any officer, board, commission, department or person authorized by this section to require such written opinion of the Attorney General shall have done so and shall have stated all the facts to govern such opinion, and the Attorney General has prepared and delivered a legal opinion with reference thereto, there shall be no liability, civil or criminal, accruing to or against any such officer, board, commission, department or person who, in good faith, follows the direction of such opinion and acts in accordance therewith unless a court of competent jurisdiction, after a full hearing, shall judicially declare that such opinion is manifestly wrong and without any substantial support. However, if a court of competent jurisdiction makes such a judicial declaration about a written opinion of the Attorney General that applies to acts or omissions of any licensee to which Section 63-19-57, 75-67-137 or 75-67-245 applies, and the licensee has acted in conformity with that written opinion, the liability of the licensee shall be governed by Section 63-19-57, 75-67-137 or 75-67-245, as the case may be. No opinion shall be given or considered if said opinion is given after suit is filed or prosecution begun.

SECTION 5. Section 63-19-17, Mississippi Code of 1972, is amended as follows:

63-19-17. (1) The renewal of a license originally granted under this chapter may be denied, or a license may be suspended, denied or revoked by the administrator on the following grounds:

(a) Material misstatement in application for license; (b) Willful failure to comply with provision of this chapter relating to retail installment contracts;

(c) Defrauding any retail buyer to the buyer's damage;

(d) Fraudulent misrepresentation, circumvention or concealment by the licensee through whatever subterfuge or device of any of the material particulars or the nature thereof required to be stated or furnished to the retail buyer under this chapter.

(2) Any licensee who is exempt from liability for an act or omission under Section 63-19-57 shall not have his license suspended or revoked or the renewal of his license denied under this section for the same act or omission.

SECTION 6. Section 63-19-55, Mississippi Code of 1972, is amended as follows:

63-19-55. (1) Any person who shall willfully and intentionally violate any provision of this chapter or engage in the business of a sales finance company in this state without a license therefor as provided in this chapter shall be guilty of a misdemeanor and upon conviction shall be punished by a fine not exceeding Five Hundred Dollars ($500.00). However, any licensee who is exempt from liability for an act or omission under Section 63-19-57 shall not be guilty of a misdemeanor under this section for the same act or omission.

(2) Any person willfully violating Sections 63-19-31 to 63-19-45, shall be barred from recovery of any finance charge, delinquency or collection charge on the contract.

(3) However, any such contract purchased in good faith for value by any bank, trust company, private bank, industrial bank or investment company authorized to do business in this state shall be held and construed to be valid and enforceable in the hands of the purchaser for value, except that such purchaser shall not be permitted to recover on such contract from the buyer anything in excess of the principal balance due thereon, plus the amount of the finance and collection charges permitted under the terms and provisions of this chapter.

SECTION 7. Section 75-67-237, Mississippi Code of 1972, is amended as follows:

75-67-237. The commissioner may, if he be of the opinion that reasonable grounds exist to believe that a licensee has willfully violated any of the provisions of this article, or the Small Loan Regulatory Law [Sections 75-67-101 to 75-67-135], or any regulation of the commissioner made under the authority of either, or any other applicable statute of this state, upon written notice to the licensee distinctly specifying the charges against him, cite the licensee to appear before him to show cause why his license should not be revoked. Such notice shall fix the date, time and place of the hearing, which hearing shall not be held less than ten (10) days from the date of such notice. At such hearing the licensee shall have the right to be heard either in person or by counsel, to produce witnesses in his behalf, and to examine and cross-examine all witnesses who may testify.

If, after the hearing, the commissioner finds that the licensee has been guilty of willfully violating any provision of this article, or the Small Loan Regulatory Law [Sections 75-67-101 to 75-67-135], or any regulations made by the commissioner under the authority of either, or any other applicable statute of the State of Mississippi, the commissioner shall forthwith revoke the license involved; otherwise, the proceedings shall be dismissed. At all such hearings, the commissioner shall cause the evidence to be taken down and a record made thereof and he shall make a written finding and decision and shall cause same to be included in the record. The original of the record shall be retained by the commissioner and a copy thereof shall be furnished to the licensee. Any licensee whose license is revoked by the commissioner may, within twenty (20) days after such revocation, appeal to the circuit court of the county where the business is being conducted, as in cases of appeal from an order of a lesser tribunal. The trial on appeal shall be de novo.

Any licensee who is exempt from liability for an act or omission under Section 75-67-245 shall not have his license revoked under this section for the same act or omission.

SECTION 8. This act shall take effect and be in force from and after July 1, 1997.