§ 45-20-105 — Purchaser or assignee of loan subject to all claims and defenses of the borrower - Relief granted - Due diligence

Tennessee § 45-20-105

• Jurisdiction: Tennessee
• Title: 45

Text

(a) Notwithstanding any other provision of law, any person who purchases or is otherwise assigned a high-cost home loan shall be subject to all claims and defenses with respect to the high-cost home loan that the borrower could assert against the lender of the high-cost home loan, unless the purchaser or assignee demonstrates, by a preponderance of the evidence, that the purchaser or assignee exercised due diligence at the time of the purchase of the high-cost home loans, or within a reasonable time thereafter, intended to prevent the purchaser or assignee from purchasing or taking assignment of a high-cost home loan that violates this chapter. (b) The relief granted in an action, pursuant to subsection (a): (1) May be asserted by the borrower acting only in an individual capacity; (2) May not exceed the sum of the amount required to reduce the borrower's liability, so that it is no longer a high-cost home loan, plus the amount required to recover costs, including reasonable attorney's fees; (3) May be asserted by the borrower of a high-cost home loan after notice of acceleration or foreclosure of the high-cost home loan, asserting a violation of § 45-20-103 in an individual action to enjoin foreclosure, or to preserve or obtain possession of the home secured by the high-cost home loan; and (4) Shall be brought within three (3) years from the date of the occurrence of the violation; provided, however, that a borrower shall not be barred from asserting a violation of § 45-20-103 in an action to collect the debt that was brought more than one (1) year from the date of the occurrence of the violation, as a matter of defense by recoupment or set-off in the action, except as otherwise provided by law. (c) This section shall not apply if a purchaser or assignee has exercised due diligence by demonstrating that the purchaser or assignee: (1) Has in place, at the time of the purchase or assignment of the loans, policies that expressly prohibit the purchase or acceptance of assignment, by the purchaser or assignee, of any high-cost home loan containing violations; (2) Requires, by the applicable purchase contract, that a seller or assignor of the loans to the purchaser or assignee represents and warrants to the purchaser or assignee, as of the applicable sale date, that either: (A) The seller or assignor will not sell or assign to the purchaser or assignee any high-cost home loan containing violations; or (B) The seller or assignor is a beneficiary of a representation and warranty from a previous seller or assignor to that effect, and, as a result of its purchase of the loans, the purchaser or assignee is a beneficiary of the representation and warranty; and (C) Exercises reasonable due diligence, at or before the time of the purchase or assignment of home loans, or within a reasonable period of time after the purchase or assignment of the home loans, that is intended by the purchaser or assignee to prevent the purchaser or assignee from purchasing or taking assignment of any high-cost home loan containing violations. (d) The reasonable due diligence requirement referred to in subdivision (c)(2)(C) may be met by employing lender's quality control sampling methodology and shall not require loan-by-loan review, for purposes of this subsection (d).

Legislative History

Acts 2006, ch. 801, § 5.