§ 23-53-106 - Enforcement.
23-53-106. Enforcement.
(a) (1) Any violation of this chapter constitutes an unconscionable or deceptive act or practice as defined under 4-88-101 et seq.
(2) (A) Except as provided in 23-53-105(a)(2)(A) or (B), any person found by a preponderance of the evidence to have violated this chapter shall be liable to the borrower for the following:
(i) (a) Actual damages, including consequential and incidental damages.
(b) The borrower shall not be required to demonstrate reliance in order to receive actual damages;
(ii) Statutory damages equal to twenty-five percent (25%) of the finance charges agreed to in the home loan agreement plus ten percent (10%) of the amount financed;
(iii) Punitive damages when the violation was malicious or reckless and when otherwise allowable by applicable law; and
(iv) Costs and reasonable attorney's fees.
(B) A borrower may be granted injunctive, declaratory, and other equitable relief as the court deems appropriate in an action to enforce compliance with this chapter.
(b) The intentional violation of this chapter renders the high-cost home loan agreement void, and the creditor shall have no right to collect, receive, or retain any principal, interest, or other charges at all with respect to the loan, and the borrower may recover any payments made under the agreement.
(c) The right of rescission granted under 15 U.S.C. 1601 et seq., as it existed on March 1, 2003, for violations of that law and all other remedies provided under this chapter shall be available to a borrower by way of recoupment against a party foreclosing on the high-cost home loan or collecting on the loan, at any time during the term of the loan.
(d) The remedies provided in this section are not intended to be the exclusive remedies available to a borrower, nor must the borrower exhaust any administrative remedies provided under this chapter or any other applicable law before proceeding under this section.
(e) Corrections and Unintentional Violations. (1) A creditor in a home loan who when acting in good faith fails to comply with the provisions of this chapter will not be deemed to have violated this section if the creditor establishes that either:
(A) Within thirty (30) days of the loan closing and before receiving any notice from the borrower of the compliance failure:
(i) The creditor has made appropriate restitution to the borrower; and
(ii) Appropriate adjustments are made to the loan; or
(B) Within sixty (60) days of the loan closing and before receiving any notice from the borrower of the compliance failure, and the compliance failure was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any errors:
(i) The borrower is notified of the compliance failure;
(ii) Appropriate restitution is made to the borrower; and
(iii) Appropriate adjustments are made to the loan.
(2) (A) Examples of bona fide errors include clerical, calculation, computer malfunction and programming, and printing errors.
(B) An error of legal judgment with respect to a person's obligations under this section is not a bona fide error.
(f) Cumulative. The remedies provided under this chapter are cumulative and independent of and in addition to any other rights under other laws.