§ 34-25.2-8. Civil action. (a) An aggrieved borrower or borrowers may bring a civil action for injunctive relief or damages in a court of competent jurisdiction for any violation of this chapter.

(b) In addition, the court shall, as the court may consider appropriate:

(1) Issue an order or injunction rescinding a home mortgage loan contract which violates this chapter, or barring the lender from collecting under any home mortgage loan which violates this chapter;

(2) Issue an order or injunction barring any judicial or nonjudicial foreclosure or other lender action under the mortgage or deed of trust securing any home mortgage loan which violates this chapter;

(3) Issue an order or injunction reforming the terms of the home mortgage loan to conform to this chapter;

(4) Issue an order or injunction enjoining a lender from engaging in any prohibited conduct; or

(5) Impose such other relief, including injunctive relief, as the court may consider just and equitable.

(c) Originating or brokering a home loan that violates a provision of this section shall constitute a violation of this chapter.

(d) A creditor in a home loan who, when acting in good faith, fails to comply with the provisions of this act, will not be deemed to have violated this section if the creditor establishes that either:

(1) Within thirty (30) days of the loan closing and prior to the institution of any action under this chapter, the lender notifies the borrower of the compliance failure and makes appropriate restitution and whatever adjustments are necessary are made to the loan, at the choice of the borrower, to either:

(i) make the high-cost home mortgage loan satisfy the requirements of this chapter; or

(ii) change the terms of the loan in a manner beneficial to the borrower so that the loan will no longer be considered a high-cost home mortgage loan; or

(2) The compliance failure was not intentional and resulted from a bona fide error notwithstanding the maintenance procedures reasonably adapted to avoid the errors, and within sixty (60) days after the discovery of the compliance failure and before the institution of any action under this chapter or the receipt of written notice of the compliance failure, the borrower is notified of the compliance failure, appropriate restitution is made and whatever adjustments are necessary are made to the loan, at the choice of the borrower, to either:

(i) make the high-cost home mortgage loan satisfy the requirements of this chapter; or

(ii) change the terms of the loan in a manner beneficial to the borrower so that the loan will no longer be considered a high-cost home mortgage loan.

Examples of a bona fide error may include clerical errors, errors in calculation, computer malfunction and programming, and printing errors. An error in legal judgment with respect to a person's obligation under this chapter shall not be considered a bona fide error.

(e) Notwithstanding any provision to the contrary contained in this chapter regarding costs and attorneys' fees, in any action instituted by a borrower who alleges that the defendant violated subsection 34-25.2-5(b), the borrower shall not be entitled to costs and attorneys' fees if the presiding judge, in the judge's discretion, finds that, before the institution of the action by the borrower, the lender made a reasonable offer to cure and that offer was rejected by the borrower.

History of Section. (P.L. 2006, ch. 569, § 1; P.L. 2006, ch. 573, § 1.)