MISSISSIPPI LEGISLATURE
2004 Regular Session
To: Banking and Financial Services
By: Representative Guice
AN ACT TO AMEND SECTION 75-67-103, MISSISSIPPI CODE OF 1972, DEFINE THE TERM "OTHER CHARGES" UNDER THE SMALL LOAN REGULATORY LAW; TO AMEND SECTION 75-67-119, MISSISSIPPI CODE OF 1972, TO PROVIDE THE REMEDIES AND PENALTIES FOR CONTRACTING FOR OR RECEIVING UNLAWFUL OTHER CHARGES UNDER THE SMALL LOAN REGULATORY LAW; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 75-67-103, Mississippi Code of 1972, is amended as follows:
75-67-103. The following words and phrases, when used in this article, shall, for the purposes of this article, have the meanings respectively ascribed to them in this section, except where the context clearly describes and indicates a different meaning:
(a) "Person" means and includes every natural person, firm, corporation, copartnership, joint-stock or other association or organization, and any other legal entity whatsoever.
(b) "Licensee" means and includes every person holding a valid license issued under the provisions of the Small Loan Privilege Tax Law [Sections 75-67-201 through 75-67-243] of this state, except those specifically exempt by the provisions of this article, who, in addition to any other rights and powers he or it might otherwise possess, * * * engages in the business of lending money either directly or indirectly, to be paid back in monthly installments or other regular installments for periods of more or less than one (1) month, and whether or not the lender requires security from the borrower as indemnity for the repayment of the loan.
(c) "Occasional lender" means a person making not more than one (1) loan in any month or not more than twelve (12) loans in any twelve-month period.
(d) "Commissioner" means the Commissioner of Banking and Consumer Finance of the State of Mississippi.
(e) "Department" means the Department of Banking and Consumer Finance of the State of Mississippi.
(f) "Records" or "documents" means any item in hard copy or produced in a format of storage commonly described as electronic, imaged, magnetic, microphotographic or otherwise, and any reproduction so made shall have the same force and effect as the original thereof and be admitted in evidence equally with the original.
(g) “Other charges” means any amounts contracted for or received by any licensee or other person in connection with a loan, other than finance charges as defined in Section 75-17-25.
SECTION 2. Section 75-67-119, Mississippi Code of 1972, is amended as follows:
75-67-119. (1) If any finance charge in excess of that expressly permitted by Section 75-17-21 is contracted for or received, all finance charges and other charges shall be forfeited and may be recovered, whether the contract is executed or executory. If any finance charge is contracted for or received that exceeds the maximum finance charge authorized by law by more than one hundred percent (100%), the principal and all finance charges and other charges shall be forfeited and any amount paid may be recovered by suit. In addition, the licensee and the several members, officers, directors, agents and employees thereof who * * * participated in that violation shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than Twenty Thousand Dollars ($20,000.00) and not less than Five Thousand Dollars ($5,000.00), in the discretion of the court. In addition to any action taken in court, the Commissioner of Banking and Consumer Finance shall immediately cite the licensee to show cause why its license should not be revoked, and proceedings thereon shall be as is specifically provided in the Small Loan Privilege Tax Law (Sections 75-67-201 to 75-67-243).
(2) If any licensee or other person violates any provision of this article or any rule or regulation promulgated under this article or any provision of Title 75, Chapter 17, of the Mississippi Code of 1972, or contracts for or receives, or participates in contracting for or receiving, other charges by misleading or deceptive means, or in violation of any applicable statutory or common law duty, or which are otherwise unlawful, all those unlawful other charges shall be forfeited and may be recovered, whether the contract is executed or executory. If the other charges subject to forfeiture under this section exceed Two Hundred Fifty Dollars ($250.00), all finance charges shall additionally be forfeited and may be recovered. If the other charges subject to forfeiture under this section exceed One Thousand Dollars ($1,000.00), all principal shall additionally be forfeited and may be recovered. If the other charges subject to forfeiture under this section are found to have been contracted for or received by misleading or deceptive means, the amounts authorized to be recovered under this subsection (2) shall be tripled.
(3) Except as provided in subsection (4) of this section, the remedies and penalties provided in this section shall be the exclusive remedies and penalties for all claims against a licensee or any other person for contracting for or receiving any finance charge in excess of that expressly permitted by Section 75-17-21, or for violation of any provision of this article or any rule or regulation promulgated under this article or any provision of Title 75, Chapter 17, of the Mississippi Code of 1972, or for contracting for or receiving, or participating in contracting for or receiving, other charges by misleading or deceptive means, or in violation of any applicable statutory or common law duty, or which are otherwise unlawful.
(4) The remedies and penalties provided in this section are supplemental to the defense provided in Section 75-67-127(3) and to the enforcement powers conferred upon the Commissioner of Banking and Consumer Finance.
(5) Attorney fees awarded in any action under this section shall be determined by the court, not the jury, based upon the time reasonably expended and the work performed by the borrower's attorney, and not by the amount of recovery or a percentage of the recovery.
SECTION 3. This act shall take effect and be in force from and after its passage.