45-5-102 - Chapter definitions. - Tennessee Statutes

45-5-102. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

     (1)  “Actuarial method” means the method of allocating payments made on a debt between the principal and interest pursuant to which payment is applied first to accumulated interest and any remainder is subtracted from, or any deficiency is added to, the unpaid principal balance of the debt;

     (2)  “Affiliated lender” means any industrial loan and thrift company or industrial investment company or industrial bank under common control with another registrant, or working together with another registrant, so as to effect for each other a greater volume of business;

     (3)  “Commissioner” means the commissioner of financial institutions;

     (4)  “Control” means possession, direct or indirect, of the power to direct or cause the direction of management and policies of a person, whether through the ownership of voting securities by contract or otherwise; provided, that no individual shall be deemed to control a person solely on account of being a director, officer, or employee of the person. For purposes of this section, a person who, directly or indirectly, owns, controls, holds the power to vote, or holds proxies representing twenty-five percent (25%) or more of the then outstanding voting securities issued by another person is presumed to control the person. For purposes of this section, the commissioner may determine whether a person, in fact, controls another person;

     (5)  “Controlling person” means any person in control of a registrant;

     (6)  “Effective rate of interest” means the simple rate of interest, including the result of converting discount or other nominal rates of interest into simple rates of interest;

     (7)  “Endorsement company” is any person engaged in the business of arranging for the making of loans, other than a residential mortgage loan, for a fee, consideration or charge, by endorsement or by providing security for loans or otherwise, even though the person does not actually make the loan; provided, however, that for loans, other than a residential mortgage loan, a natural person may refer a potential borrower to a registrant and receive a fee or consideration from the registrant without being deemed an “endorsement company,” so long as the natural person does not claim to be a loan broker or “endorsement company”;

     (8)  “Industrial bank” means a person organized and registered as an industrial bank pursuant to this chapter, engaged in the business of making loans and imposing the interest and loan charges authorized under this chapter, that issues thrift certificates and that is also examined, supervised and liquidated as a state bank under this title;

     (9)  “Industrial investment company” means a person organized and registered as an industrial investment company pursuant to this chapter, engaged in the business of making loans and imposing the interest and loan charges authorized under this chapter, that issues investment certificates subject to the Tennessee Securities Act, compiled in title 48, chapter 2, part 1, and that is also examined, supervised and liquidated as a state bank under this title;

     (10)  “Industrial loan and thrift company” means a person engaged in the business of making loans and imposing the interest and loan charges authorized under this chapter, and includes persons engaged in business as endorsement companies;

     (11)  “Interest” means compensation for the use, detention or forbearance to collect money over a period of time, and does not include compensation for other purposes, including, but not limited to:

          (A)  Time-price differentials;

          (B)  Loan charges as provided in § 45-5-403; and

          (C)  Insurance charges as provided in § 45-5-305;

     (12)  (A)  “Investment certificate” means a writing by which an industrial investment company evidences its receipt of money from a natural person and its obligation to repay the money, with interest, in accordance with the provisions of the writing, which certificates are not insured by an agency of the United States government;

          (B)  “Investment certificate” does not include:

                (i)  Promissory notes, bonds, debentures, commercial paper and the like issued by an industrial loan and thrift company or industrial investment company or industrial bank to a bank, insurance company, or other commercial lender; or

                (ii)  A promissory note provided, that the note is nonnegotiable to a natural person and includes a provision to the effect that any attempt at its assignment to any person other than the maker, a bank, insurance company, or other commercial lender shall be null, void and of no effect issued by an industrial loan and thrift company to the following:

                     (a)  A bona fide executive officer who works at least thirty (30) hours per week at the company, or to members of the executive officer's immediate family;

                     (b)  A voting member of the board of directors of the company, or to members of the voting member's immediate family; or

                     (c)  To a shareholder, including a beneficial owner, of the company where the shareholder and members of the shareholder's immediate family own at least twenty-five percent (25%) of the outstanding voting shares of the company;

          (C)  For purposes of subdivision (12)(B)(ii), “immediate family” includes a note payee, and the payee's parents, grandparents, siblings, children and grandchildren; and

          (D)  The burden of demonstrating to the commissioner that an obligation is not an “investment certificate” shall be on the registrant, and the registrant shall file its reports under this chapter in a manner that clearly reflects that exempt status is being claimed;

     (13)  “Loan charges” means compensation to a registrant for services, expenses, detriments or commitments directly incident to a loan, and does not include compensation for other purposes, including, but not limited to, time-price differentials, interest or insurance charges;

     (14)  (A)  In general, “loan processor or underwriter” means an individual who performs clerical or support duties as an employee, not an independent contractor, at the direction of and subject to the supervision and instruction of a registrant authorized to make residential mortgage loans;

          (B)  For purposes of subdivision (14)(A), “clerical or support duties” may include, subsequent to the receipt of an application for a residential mortgage loan:

                (i)  The receipt, collection, distribution and analysis of information common for the processing or underwriting of the loan; and/or

                (ii)  Communicating with a consumer to obtain the information necessary for the processing or underwriting of the loan, to the extent that the communication does not include offering or negotiating loan rates or terms or counseling consumers about residential mortgage loan rates or terms;

     (15)  “Mortgage loan originator” means:

          (A)  An individual who, for compensation or gain or in the expectation of compensation or gain:

                (i)  Takes a residential mortgage loan application; or

                (ii)  Offers or negotiates terms of a residential mortgage loan;

          (B)  “Mortgage loan originator” does not include an individual engaged solely as a loan processor or underwriter for a registrant, unless that individual is an independent contractor and not an employee;

     (16)  “Nationwide Mortgage Licensing System and Registry” means a mortgage licensing system developed and maintained by the Conference of State Bank Supervisors and the American Association of Residential Mortgage Regulators for the licensing and registration of licensed mortgage loan originators;

     (17)  “Nominal rate of interest” means a stated rate of interest, other than simple interest, including, but not limited to, discount interest;

     (18)  “Person” means an individual, corporation, firm, trust, estate, partnership, joint venture or association, as the context may require;

     (19)  “Principal” means the total of money paid to, received by, or paid or credited to the account of the borrower, including loan charges as provided in § 45-5-403(1), (2) and (3), as applicable, and including insurance charges for which the borrower contracts to pay pursuant to § 45-5-305;

     (20)  “Registrant” means any person registered as an industrial loan and thrift company, industrial investment company or industrial bank under this chapter;

     (21)  “Residential mortgage loan” means any loan, including an extension of credit, primarily for personal, family or household use that is secured by a mortgage, deed of trust or other equivalent consensual security interest on a dwelling, as defined in § 103(v) of the federal Truth in Lending Act, codified in 15 U.S.C. § 1602(v), or residential real estate upon which is constructed or intended to be constructed a dwelling, as so defined;

     (22)  “Residential real estate” means any real property located in this state upon which is constructed or intended to be constructed a dwelling;

     (23)  “Simple rate of interest” means the ratio between the interest payable on an obligation and the principal for a period of time, expressed as a percentage for a period such as a year or a month;

     (24)  “Thrift certificate” means a writing by which an industrial bank evidences its receipt of money from a natural person and its obligation to repay the money, with interest in accordance with the provisions of the writing, that is insured by an agency of the United States government. “Thrift certificate” does not include investment certificate, and does not include commercial paper or other evidence of indebtedness issued by an industrial bank to a bank, insurance company or other commercial lender;

     (25)  “Total amount of the loan” means the aggregate amount of money scheduled to be paid by a borrower to a registrant to repay a loan, including principal and any interest precomputed and deducted in advance; and

     (26)  “Unique identifier” means a number or other identifier assigned by protocols established by the Nationwide Mortgage Licensing System and Registry.

[Acts 1979, ch. 204, § 1; T.C.A., § 45-2001; Acts 1983, ch. 274, § 8; 1988, ch. 737, § 1; 1990, ch. 857, §§ 1, 3; 1991, ch. 57, § 1; 1997, ch. 19, § 1; 2001, ch. 165, §§ 1, 2; 2009, ch. 499, §§ 1, 2.]