Printable Format16-207. Contract rate; penalties for prepayment of certain loans, recording fees; contracting for interest in excess of limitation, penalties, attorney fees; loans excluded. (a) Subject to the following provision, the parties to any bond, bill, promissory note or other instrument of writing for the payment or forbearance of money may stipulate therein for interest receivable upon the amount of such bond, bill, note or other instrument of writing, at a rate not to exceed 15% per annum unless otherwise specifically authorized by law.
(b) No penalty shall be assessed against any party for prepayment of any home loan evidenced by a note secured by a real estate mortgage where such prepayment is made more than six months after execution of such note.
(c) The lender may collect from the borrower:
(1) The actual fees paid a public official or agency of the state, or federal government, for filing, recording or releasing any instrument relating to a loan subject to the provisions of this section; and
(2) reasonable expenses incurred by the lender in connection with the making, closing, disbursing, extending, readjusting or renewing of loans subject to the provisions of this section.
(d) Any person so contracting for a greater rate of interest than that authorized by this section shall forfeit all interest so contracted for in excess of the amount authorized under this section; and in addition thereto shall forfeit a sum of money, to be deducted from the amount due for principal and lawful interest, equal to the amount of interest contracted for in excess of the amount authorized by this section and such amounts may be set up as a defense or counterclaim in any action to enforce the collection of such obligation and the borrower shall also recover a reasonable attorney fee.
(e) The interest rates prescribed in subsection (a) shall not apply to a business or agricultural loan. For the purpose of this section unless a loan is made primarily for personal, family or household purposes, the loan shall be considered a business or agricultural loan. For the purpose of this subsection, a business or agricultural loan shall include credit sales and notes secured by contracts for deed to real estate.
(f) Loans 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, are not subject to the interest rates prescribed in subsection (a).
(g) The interest rates prescribed in subsection (a) shall not apply to a note secured by a real estate mortgage or a contract for deed to real estate where the note or contract for deed permits adjustment of the interest rate, the term of the loan or the amortization schedule.
(h) A first mortgage loan incurred for personal, family or household purposes may be subject to certain provisions of the uniform consumer credit code, K.S.A. 16a-1-101 to 16a-9-102, and amendments thereto, as follows:
(1) Certain high loan-to-value first mortgage loans are subject to the provisions of the uniform consumer credit code, other than its usury provisions. Examples of provisions of the uniform consumer credit code applicable to high loan-to-value first mortgage loans include, but are not limited to: Limitations on prepaid finance charges; mandatory appraisals; required disclosures; restrictions on balloon payments and negative amortization; limitations on late fees and collection costs; and mandatory default notices and cure rights.
(2) Certain high interest rate first mortgage loans are subject to certain provisions of the uniform consumer credit code, including, without limitation, provisions which impose restrictions on balloon payments and negative amortization.
(3) If the parties to a first mortgage loan agree in writing to make the transaction subject to the uniform consumer credit code, than* all applicable provisions of the uniform consumer credit code, including its usury provisions, apply to the loan.
This subsection is for informational purposes only and does not limit or expand the scope of the uniform consumer credit code.
(i) Subsections (b), (c) and (d) do not apply to a first mortgage loan if:
(1) The parties agree in writing to make the transaction subject to the uniform consumer credit code, K.S.A. 16a-1-101 to 16a-9-102, and amendments thereto; or
(2) the loan is a high loan-to-value first mortgage loan subject to any provision of the uniform consumer credit code.
In the case of a loan described in paragraphs (1) or (2), the applicable provisions of the uniform consumer credit code shall govern the loan in lieu of subsections (b), (c) and (d).
History: L. 1969, ch. 112, § 36; L. 1973, ch. 85, § 132; L. 1975, ch. 125, § 1; L. 1978, ch. 72, § 1; L. 1980, ch. 75, § 1; L. 1980, ch. 76, § 2; L. 1981, ch. 88, § 1; L. 1982, ch. 89, § 1; L. 1983, ch. 74, § 1; L. 1999, ch. 107, § 5; L. 2013, ch. 103, § 1; July 1.
Revisor’s Note:
* The word “than” should have been “then” instead.
Section was also amended by L. 2013, ch. 29, § 1, but that version was repealed by L. 2013, ch. 129, § 2.
Cross References to Related Sections:
Joint rules and regulations governing loans under subsection (h), see 16-207d.
Law Review and Bar Journal References:
Impact of the Uniform Consumer Credit Code upon Kansas, Barkley Clark, 18 K.L.R. 277, 278, 283 (1970).
“The New Kansas Consumer Legislation,” Barkley Clark, 42 J.B.A.K. 147, 194 (1973).
Warranty violations in Tripartite finance lease agreements, Winton A. Winter, Jr., 25 K.L.R. 573, 582 (1977).
“Recovery of Attorney Fees in Kansas,” Mark A. Furney, 18 W.L.J. 535, 557 (1979).
“Interest Rates in Kansas: The Decline and Fall of Ezekiel,” Barkley Clark, 49 J.B.A.K. 81, 87, 91, 93, 94 (1980).
“The U.C.C.C. and Real Estate Financing: A Square Peg in a Round Hole.” Thomas L. Griswold, 28 K.L.R. 601, 602, 604, 605, 606 (1980).
“New Kansas Usury Laws and Interest Rate Regulation,” Robert G. Martin, 20 W.L.J. 572 (1981).
“Combining Flexibility with Tax Sheltered Savings: Qualified Retirement Plan Loans,” Alson R. Martin, 29 K.L.R. 179, 189 (1981).
“Alternate Methods of Financing the Sale and Purchase of Single Family Residences: Representing the Buyer and the Seller,” Peter M. DiGiovanni, 50 J.K.B.A. 179, 185, 186 (1981).
“Interest and Usury in Kansas,” Thomas V. Murray, 50 J.K.B.A. 270 (1981).
“Interest on Legal Fees,” Calvin J. Karlin, 58 J.K.B.A. No. 5, 23 (1989).
Attorney General’s Opinions:
Interest and charges; usury. 79-252.
Interest and charges; contract rate, limitations. 80-58.
Computation of usury rates. 80-64.
Interest and charges; business and agricultural loans. 81-200.
Consumer loans; finance charge; exemption of adjustable rate loans from maximum finance charge limits. 82-128.
Consumer loans; maximum finance charges; loans secured by mortgage on real estate; charging of nonrefundable origination fee. 84-2.
Entry of satisfaction of real estate mortgage; fee. 94-143.
Interest rates applicable to certain real estate mortgages; loan agreements applying consumer credit code (UCCC) rates. 97-99.
CASE ANNOTATIONS
1. Applied; subsection (d) requires the imposition of penalty when rate of interest usurious. Schulte v. Franklin, 6 K.A.2d 651, 653, 654, 633 P.2d 1151 (1981).
2. Where no unlawful intent shown, variable interest rate loan not usurious when interest charged never exceeded statutory rate. Indian Springs State Bank v. Kelley’s Auto Supply, Inc., 9 K.A.2d 211, 215, 675 P.2d 379 (1984).
3. Modification agreement of existing real estate note and mortgage constituted new contract; current interest rate controlled. Frets v. Capitol Federal Savings & Loan Ass’n, 238 K. 614, 620, 712 P.2d 1270 (1986).
4. Usury laws do not apply to transaction for business or agricultural purposes. Wight v. Agristor Leasing, 652 F.Supp. 1000, 1014 (1987).
5. Whether absent specific contractual provision authorizing prepayment debtor has a right to prepay note and mortgage examined. Metropolitan Life Ins. Co. v. Strnad, 255 K. 657, 660, 666, 876 P.2d 1362 (1994).
6. Offensive usury action not authorized hereunder; attorney fees award reversed; plaintiffs not entitled to statutory damages. George v. Capital South Mtg. Investments, Inc., 265 K. 431, 447, 456, 462, 961 P.2d 32 (1998).
7. Subsection (b) applies to interest rate for contract for deed. Beltz v. Dings, 27 K.A.2d 507, 6 P.3d 424 (2000).
8. Maturity date of mortgage and promissory note set fixed interest rate on unpaid balance. Brennan v. Kunzle, 37 K.A.2d 365, 396, 154 P.3d 1094 (2007).