South Carolina § 37-23-50 - Borrower's right in action for violations; penalties; statute of limitations; enforcement; costs; application of article.

§ 37-23-50. Borrower's right in action for violations; penalties; statute of limitations; enforcement; costs; application of article.

(A) If a lender, or party charged with a violation, when making a high-cost home loan violates the provisions of this article, the borrower has a right in action, other than a class action, to recover from the lender or party charged with the violation actual damages and also a penalty in an amount determined by the court of not less than one thousand five hundred dollars and not more than seven thousand five hundred dollars for each loan transaction. No borrower may bring a class action for a violation of this article. No borrower may bring an action for a violation of this article more than six years after the violation occurred and after the original scheduled maturity date of the debt. This section does not bar a borrower from asserting a violation of this article in an action to collect a debt which was brought more than six years from the date of the occurrence of the violation and after the original scheduled maturity date of the debt as a matter of defense by recoupment or set-off in such action;

(B)(1) If the court finds as a matter of law that the agreement or transaction violates the provisions of this article at the time it was made, the court may, in an action other than a class action:

(a) refuse to enforce the agreement, or a term, or part of the agreement or transaction that the court determines to have been unlawful at the time it was made;

(b) enforce the remainder of the agreement without the unlawful term or part, or limit the application of the unlawful term or part to avoid an unlawful result;

(c) rewrite or modify the agreement to eliminate an unlawful term, part, or result and enforce the new agreement; or

(d) award either one of the following:

(i) not more than the total amount of the loan finance charge and allow repayment of the unpaid balance of the loan without any finance charge; or

(ii) not more than double the amount of excess loan finance charge or other charges or fees actually received by the creditor or paid by the debtor to a third party.

(2) An action pursuant to this subsection may not be brought after the original scheduled maturity date of the debt.

(C) In an action in which it is found that a lender or party charged with a violation has violated this chapter, the court shall award to the debtor the costs of the action and to his attorneys their reasonable fees. In determining attorney's fees, the amount of the recovery on behalf of the debtor is not controlling.

(D) This article establishes specific consumer protections in consumer home loans in addition to other consumer protections that may be otherwise available by law.

(E) The provisions of this article apply to a person who in bad faith attempts to avoid the application of this article by:

(1) structuring a loan transaction as an open-end credit plan for the purpose and with the intent of evading the provisions of this article if the loan would be a high-cost home loan if it were structured as a closed-end loan;

(2) dividing a loan transaction into separate parts for the purpose and with the intent of evading the provisions of this article; or

(3) other subterfuge.

(F) The Administrator of the Department of Consumer Affairs, the Attorney General, the Commissioner of Banking, the Director of the Consumer Finance Division or any party to a high-cost home loan may enforce the provisions of this article. The penalties and remedies provided in this article are in addition to and cumulative of penalties and remedies available pursuant to other provisions of law.

HISTORY: 2003 Act No. 42, SECTION 1, eff January 1, 2004, and applying to loans for which the loan applications were taken on or after that date.