CHAPTER 64 SENATE BILL No. 445 (Amended by Chapter 159) [SGMLanc]An Act concerning the uniform consumer credit code; amending K.S.A. 1999 Supp. 16a-1-301 and 16a-3-207 and repealing the existing sections.

Be it enacted by the Legislature of the State of Kansas:

Section 1. K.S.A. 1999 Supp. 16a-1-301 is hereby amended to read
as follows: 16a-1-301. In addition to definitions appearing in subsequent
articles, in K.S.A. 16a-1-101 through 16a-9-102, and amendments thereto:

(1) ``Actuarial method'' means the method of allocating payments
made on a debt between the principal and the finance charge pursuant
to which a payment is applied, assuming no delinquency charges or other
additional charges are then due, first to the accumulated finance charge
and then to the unpaid principal balance. When a finance charge is cal-
culated in accordance with the actuarial method, the contract rate is ap-
plied to the unpaid principal balance for the number of days the principal
balance is unpaid. At the end of each computational period, or fractional
computational period, the unpaid principal balance is increased by the
amount of the finance charge earned during that period and is decreased
by the total payment, if any, made during the period after the deduction
of any delinquency charges or other additional charges due during the
period.

(2) ``Administrator'' means the deputy commissioner of the consumer
and mortgage lending division appointed by the bank commissioner pur-
suant to K.S.A. 75-3135, and amendments thereto.

(3) ``Agreement'' means the bargain of the parties in fact as found in
their language or by implication from other circumstances including
course of dealing or usage of trade or course of performance.

(4) ``Amount financed'' means the net amount of credit provided to
the consumer or on the consumer's behalf. The amount financed shall be
calculated as provided in rules and regulations adopted by the adminis-
trator pursuant to K.S.A. 16a-6-117, and amendments thereto.

(5) ``Annual percentage rate'' means the finance charge expressed as
a yearly rate, as calculated in accordance with the actuarial method. The
annual percentage rate shall be calculated as provided in rules and reg-
ulations adopted by the administrator pursuant to K.S.A. 16a-6-117, and
amendments thereto.

(6) ``Appraised value'' means, with respect to any real estate at any
time~~, the greater of~~:

(a) The total appraised value of the real estate, as reflected in the
most recent records of the tax assessor of the county in which the real
estate is located; or

(b) the fair market value of the real estate, as reflected in a written
appraisal of the real estate performed by a Kansas licensed or certified
appraiser within the past 12 months.

(7) ``Billing cycle'' means the time interval between periodic billing
statement dates.

(8) ``Cash price'' of goods, services, or an interest in land means the
price at which they are offered for sale by the seller to cash buyers in the
ordinary course of business and may include (a) the cash price of acces-
sories or services related to the sale, such as delivery, installation, alter-
ations, modifications, and improvements, and (b) taxes to the extent im-
posed on a cash sale of the goods, services, or interest in land. The cash
price stated by the seller to the buyer in a disclosure statement is pre-
sumed to be the cash price.

(9) ``Closed end credit'' means a consumer loan or a consumer credit
sale which is not incurred pursuant to open end credit.

(10) ``Closing costs'' with respect to a debt secured by an interest in
land includes:

(a) The actual fees paid a public official or agency of the state or
federal government, for filing, recording or releasing any instrument re-
lating to the debt; and

(b) bona fide and reasonable expenses incurred by the lender in con-
nection with the making, closing, disbursing, extending, readjusting or
renewing the debt which are payable to third parties not related to the
lender, except that reasonable fees for an appraisal made by the lender
or related party are permissible.

(11) ``Code mortgage rate'' means the greater of:

(a) 12%; or

(b) the sum of:

(i) The yield on 30-year fixed rate conventional home mortgage loans
committed for delivery within 31 to 90 days accepted under the federal
home loan mortgage corporation's or any successor's daily offerings for
sale on the last day on which commitments for such mortgages were
received in the previous month; and

(ii) 5%.

If the reference rate referred to in subparagraph (i) of paragraph (b)
is discontinued, becomes impractical to use, or is otherwise not readily
ascertainable for any reason, the administrator may designate a compa-
rable replacement reference rate and, upon publishing notice of the same,
such replacement reference rate shall become the reference rate referred
to in subparagraph (i) of paragraph (b). The secretary of state shall publish
notice of the code mortgage rate not later than the second issue of the
Kansas register published each month.

(12) ``Conspicuous'' means a term or clause is conspicuous when it is
so written that a reasonable person against whom it is to operate ought
to have noticed it. Whether a term or clause is conspicuous or not is for
decision by the trier of fact.

(13) ``Consumer'' means the buyer, lessee, or debtor to whom credit
is granted in a consumer credit transaction.

(14) ``Consumer credit sale'':

(a) Except as provided in paragraph (b), a ``consumer credit sale'' is
a sale of goods, services, or an interest in land in which:

(i) Credit is granted either by a seller who regularly engages as a seller
in credit transactions of the same kind or pursuant to a credit card other
than a lender credit card,

(ii) the buyer is a person other than an organization,

(iii) the goods, services, or interest in land are purchased primarily
for a personal, family or household purpose,

(iv) either the debt is by written agreement payable in more than four
installments or a finance charge is made, and

(v) with respect to a sale of goods or services, the amount financed
does not exceed $25,000.

(b) A ``consumer credit sale'' does not include:

(i) A sale in which the seller allows the buyer to purchase goods or
services pursuant to a lender credit card; or

(ii) a sale of an interest in land, unless the parties agree in writing to
make the transaction subject to the uniform consumer credit code.

(15) ``Consumer credit transaction'' means a consumer credit sale,
consumer lease, or consumer loan or a modification thereof including a
refinancing, consolidation, or deferral.

(16) ``Consumer lease'' means a lease of goods:

(a) Which a lessor regularly engaged in the business of leasing makes
to a person, other than an organization, who takes under the lease pri-
marily for a personal, family or household purpose;

(b) in which the amount payable under the lease does not exceed
$25,000;

(c) which is for a term exceeding four months; and

(d) which is not made pursuant to a lender credit card.

(17) ``Consumer loan'':

(a) Except as provided in paragraph (b), a ``consumer loan'' is a loan
made by a person regularly engaged in the business of making loans in
which:

(i) The debtor is a person other than an organization;

(ii) the debt is incurred primarily for a personal, family or household
purpose;

(iii) either the debt is payable by written agreement in more than
four installments or a finance charge is made; and

(iv) either the amount financed does not exceed $25,000 or the debt
is secured by an interest in land.

(b) Unless the loan is made subject to the uniform consumer credit
code by written agreement, a ``consumer loan'' does not include:

(i) A loan secured by a first mortgage unless:

(A) The loan-to-value ratio of the loan at the time when made exceeds
100%; or

(B) in the case of subsection (1) of K.S.A. 1999 Supp. 16a-3-310 and
amendments thereto, the annual percentage rate of the loan exceeds the
code mortgage rate; or

(ii) a loan made by a qualified plan, as defined in section 401 of the
internal revenue code, to an individual participant in such plan or to a
member of the family of such individual participant.

(18) ``Credit'' means the right granted by a creditor to a debtor to
defer payment of debt or to incur debt and defer its payment.

(19) ``Credit card'' means any card, plate or other single credit device
that may be used from time to time to obtain credit. Since this involves
the possibility of repeated use of a single device, checks and similar in-
struments that can be used only once to obtain a single credit extension
are not credit cards.

(20) ``Creditor'' means a person who regularly extends credit in a
consumer credit transaction which is payable by a written agreement in
more than four installments or for which the payment of a finance charge
is or may be required and is the person to whom the debt arising from
the consumer credit transaction is initially payable on the face of the
evidence of indebtedness or, if there is no such evidence of indebtedness,
by written agreement. In the case of credit extended pursuant to a credit
card, the creditor is the card issuer and not another person honoring the
credit card.

(21) ``Earnings'' means compensation paid or payable to an individual
or for such individual's account for personal services rendered or to be
rendered by such individual, whether denominated as wages, salary, com-
mission, bonus, or otherwise, and includes periodic payments pursuant
to a pension, retirement, or disability program.

(22) ``Finance charge'' means all charges payable directly or indirectly
by the consumer and imposed directly or indirectly by the creditor as an
incident to or as a condition of the extension of credit. The finance charge
shall be calculated as provided in rules and regulations adopted by the
administrator pursuant to K.S.A. 16a-6-117, and amendments thereto.

(23) ``First mortgage'' means a first priority mortgage lien or similar
real property security interest.

(24) ``Goods'' includes goods not in existence at the time the trans-
action is entered into and merchandise certificates, but excludes money,
chattel paper, documents of title, and instruments.

(25) Except as otherwise provided, ``lender'' includes an assignee of
the lender's right to payment but use of the term does not in itself impose
on an assignee any obligation of the lender with respect to events occur-
ring before the assignment.

(26) ``Lender credit card'' means a credit card issued by a supervised
lender.

(27) ``Loan'':

(a) Except as provided in paragraph (b), a ``loan'' includes:

(i) The creation of debt by the lender's payment of or agreement to
pay money to the debtor or to a third party for the account of the debtor;

(ii) the creation of debt either pursuant to a lender credit card or by
a cash advance to a debtor pursuant to a credit card other than a lender
credit card;

(iii) the creation of debt by a credit to an account with the lender
upon which the debtor is entitled to draw immediately; and

(iv) the forbearance of debt arising from a loan.

(b) A ``loan'' does not include the payment or agreement to pay
money to a third party for the account of a debtor if the debt of the
debtor arises from a sale or lease and results from use of either a credit
card issued by a person primarily in the business of selling or leasing
goods or services or any other credit card which may be used for the
purchase of goods or services and which is not a lender credit card.

(28) ``Loan-to-value ratio'', at any time for any loan secured by an
interest in real estate, means a fraction expressed as a percentage:

(a) The numerator of which is the aggregate unpaid principal balance
of all loans secured by a first mortgage or a second mortgage encumbering
the real estate at such time; and

(b) the denominator of which is the appraised value of the real estate.

(29) ``Merchandise certificate'' means a writing issued by a seller not
redeemable in cash and usable in its face amount in lieu of cash in
exchange for goods or services.

(30) ``Official fees'' means:

(a) Fees and charges prescribed by law which actually are or will be
paid to public officials for determining the existence of or for perfecting,
releasing, or satisfying a security interest related to a consumer credit
sale, consumer lease, or consumer loan; or

(b) premiums payable for insurance in lieu of perfecting a security
interest otherwise required by the creditor in connection with the sale,
lease, or loan, if the premium does not exceed the fees and charges de-
scribed in paragraph (a) which would otherwise be payable.

(31) ``Open end credit'' means an arrangement pursuant to which:

(a) A creditor may permit a consumer, from time to time, to purchase
goods or services on credit from the creditor or pursuant to a credit card,
or to obtain loans from the creditor or pursuant to a credit card;

(b) the unpaid balance of amounts financed and the finance and other
appropriate charges are debited to an account;

(c) the finance charge, if made, is computed on the outstanding un-
paid balances of the consumer's account from time to time; and

(d) the consumer has the privilege of paying the balances in install-
ments.

(32) ``Organization'' means a corporation, limited liability company,
government or governmental subdivision or agency, trust, estate, part-
nership, cooperative or association.

(33) ``Person'' includes a natural person or an individual, and an or-
ganization.

(34) (a) ``Person related to'' with respect to an individual means (i)
the spouse of the individual, (ii) a brother, brother-in-law, sister, sister-
in-law of the individual, (iii) an ancestor or lineal descendant of the in-
dividual or the individual's spouse, and (iv) any other relative, by blood,
adoption or marriage, of the individual or such individual's spouse who
shares the same home with the individual.

(b) ``Person related to'' with respect to an organization means (i) a
person directly or indirectly controlling, controlled by or under common
control with the organization, (ii) an officer or director of the organization
or a person performing similar functions with respect to the organization
or to a person related to the organization, (iii) the spouse of a person
related to the organization, and (iv) a relative by blood, adoption or mar-
riage of a person related to the organization who shares the same home
with such person.

(35) ``Prepaid finance charge'' means any finance charge paid sepa-
rately in cash or by check before or at consummation of a transaction, or
withheld from the proceeds of the credit at any time. Prepaid finance
charges shall be calculated as provided in rules and regulations adopted
by the administrator pursuant to K.S.A. 16a-6-117, and amendments
thereto.

(36) ``Presumed'' or ``presumption'' means that the trier of fact must
find the existence of the fact presumed unless and until evidence is in-
troduced which would support a finding of its nonexistence.

(37) ``Principal'' means the total of the amount financed and the pre-
paid finance charges, except that prepaid finance charges are not added
to the amount financed to the extent such prepaid finance charges are
paid separately in cash or by check by the consumer. The administrator
may adopt rules and regulations regarding the determination or calcula-
tion of the principal or the principal balance pursuant to K.S.A. 16a-6-
117, and amendments thereto.

(38) ``Sale of goods'' includes any agreement in the form of a bailment
or lease of goods if the bailee or lessee agrees to pay as compensation for
use a sum substantially equivalent to or in excess of the aggregate value
of the goods involved and it is agreed that the bailee or lessee will become,
or for no other or a nominal consideration has the option to become, the
owner of the goods upon full compliance with such bailee's or lessee's
obligations under the agreements.

(39) ``Sale of an interest in land'' includes a lease in which the lessee
has an option to purchase the interest and all or a substantial part of the
rental or other payments previously made by the lessee are applied to the
purchase price.

(40) ``Sale of services'' means furnishing or agreeing to furnish serv-
ices and includes making arrangements to have services furnished by an-
other.

(41) ``Second mortgage'' means a second or other subordinate priority
mortgage lien or similar real property security interest.

(42) ``Seller'': Except as otherwise provided, ``seller'' includes an as-
signee of the seller's right to payment but use of the term does not in
itself impose on an assignee any obligation of the seller with respect to
events occurring before the assignment.

(43) ``Services'' includes (a) work, labor, and other personal services,
(b) privileges with respect to transportation, hotel and restaurant accom-
modations, education, entertainment, recreation, physical culture, hos-
pital accommodations, funerals, cemetery accommodations, and the like,
and (c) insurance.

(44) ``Supervised financial organization'' means a person, other than
an insurance company or other organization primarily engaged in an in-
surance business:

(a) Organized, chartered, or holding an authorization certificate un-
der the laws of any state or of the United States which authorize the
person to make loans and to receive deposits, including a savings, share,
certificate or deposit account; and

(b) subject to supervision by an official or agency of such state or of
the United States.

(45) ``Supervised lender'' means a person authorized to make or take
assignments of supervised loans, either under a license issued by the ad-
ministrator (K.S.A. 16a-2-301 and amendments thereto) or as a super-
vised financial organization (subsection (44) of K.S.A. 16a-1-301 and
amendments thereto).

(46) ``Supervised loan'' means a consumer loan, including a loan made
pursuant to open end credit, with respect to which the annual percentage
rate exceeds 12%.

(47) ``Written agreement'' means an agreement such as a promissory
note, contract or lease that is evidence of or relates to the indebtedness.
A letter that merely confirms an oral agreement does not constitute a
written agreement for purposes of this subsection unless signed by the
person against whom enforcement is sought.

(48) ``Written administrative interpretation'' means any written com-
munication from the consumer credit commissioner which is the official
interpretation as so stated in said written communication by the consumer
credit commissioner of the Kansas uniform consumer credit code and
rules and regulations pertaining thereto.

Sec. 2. K.S.A. 1999 Supp. 16a-3-207 is hereby amended to read as
follows: 16a-3-207. (1) The provisions of this section apply only to a con-
sumer loan which is secured by a first mortgage or a second mortgage on
the consumer's principal residence. The provisions of this section do not
apply to a lender who is a supervised financial organization.

(2) ~~Before making a loan subject to this section, a lender shall obtain~~
~~the appraised value of the real estate to be encumbered. The appraisal~~
~~evidencing the appraised value shall be retained by the lender and pre-~~
~~served in accordance with the record-keeping requirements set forth in~~
~~K.S.A. 16a-2-304, and amendments thereto.~~

~~(3) If, based on the appraisal, the loan-to-value ratio of the loan ex-~~
~~ceeds 100%, then the lender shall deliver to the consumer:~~

~~(a) A free copy of the appraisal; and~~

~~(b)~~ Before making a loan subject to this section, a lender shall obtain
the appraised value of the real estate to be encumbered. The appraisal
evidencing the appraised value shall be retained by the lender and pre-
served in accordance with the recordkeeping requirements set forth in
K.S.A. 16a-2-304, and amendments thereto.

(3) If, based upon the appraisal, the loan to value ratio of the loan
exceeds 100%, then the lender shall deliver to the consumer:

(a) A free copy of the appraisal; and

(b) a written notice regarding high loan-to-value mortgages and the
availability of consumer credit counseling. The administrator may adopt
rules and regulations regarding the form of the notice to be delivered to
the consumer and the names, addresses and telephone numbers of se-
lected consumer credit counseling providers.

(4) The notice referred to in subsection (3) shall be given to the con-
sumer not less than ~~five~~ three days before the loan is made. The notice
must be retained by the lender and preserved in accordance with the
record-keeping requirements set forth in K.S.A. 16a-2-304, and amend-
ments thereto.

(5) If, within ~~five~~ three days after receiving the notice, the consumer
elects not to enter into the loan transaction, then the lender must
promptly refund to the consumer any application fees or other amounts
paid by the consumer to the lender. However, the lender is not required
to refund any bona fide out-of-pocket costs incurred by the lender before
the consumer elected not to enter into the loan transaction, provided that
such costs were paid or are payable to a person or persons not related to
the lender. Notwithstanding the provisions of this subsection, a bona fide
appraisal fee paid or payable to a person related to the lender need not
be refunded to the consumer.

(6) This section shall be supplemental to and a part of the uniform
consumer credit code.

Sec. 3. K.S.A. 1999 Supp. 16a-1-301 and 16a-3-207 are hereby re-
pealed.

Sec. 4. This act shall take effect and be in force from and after its
publication in the statute book.

Approved April 6, 2000.
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