TITLE XXXIII-A
RETAIL INSTALLMENT SALES
Chapter 361-A
RETAIL INSTALLMENT SALES OF MOTOR VEHICLES
Section 361-A:1
361-A:1 Definitions. –
The following terms as used in this chapter shall have the following meanings unless the context or subject matter otherwise requires:
I. "Balloon payment" means any retail installment contract repayment option under which:
(a) The retail buyer is required to repay the entire amount of any outstanding balance as of a specified date or at the end of a specified period of time, as determined in accordance with the terms of the retail installment contract pursuant to which the credit is extended;
(b) The aggregate amount of the minimum periodic payments required would not fully amortize such outstanding balance by such date or at the end of such period; and
(c) The balloon payment is at least twice the amount of one periodic installment payment under a payment plan that provides for equal periodic installment payments during the term of the balloon contract that precedes the due date of the final balloon payment.
II. "Balloon retail installment contract" or "balloon contract" means a retail installment contract that contains a balloon payment feature.
II-a. "Branch office" means a business location within this state of a person required to be licensed under this chapter. "Branch office" does not include a person's principal office location.
III. "Cash sale price" means the price stated in a retail installment contract for which the seller would have sold to the buyer, and the buyer would have bought from the seller, the motor vehicle which is the subject matter of the retail installment contract, if such sale had been a sale for cash instead of a retail installment transaction. The cash sale price may include any taxes, registration, license and other fees, and charges for accessories and their installation and for delivery, servicing, repairing, or improving the motor vehicle.
III-a. "Commissioner" means the bank commissioner.
III-b. "Control" means the power, directly or indirectly, to direct the management or policies of a company, whether through ownership of securities, by contract, or otherwise. Any person is presumed to control a company if such person:
(a) Is a director, general partner, or executive officer;
(b) Directly or indirectly has the right to vote 10 percent or more of a class of a voting security or membership interest, or has the power to sell or direct the sale of 10 percent or more of a class of voting securities or membership interest;
(c) In the case of a limited liability company, is a managing member; or
(d) In the case of a partnership, has the right to receive upon dissolution, or has contributed, 10 percent or more of the capital.
III-c. "Department" means the banking department.
III-d. "Direct owner" means any person, including individuals, that owns, beneficially owns, has the right to vote, or has the power to sell or direct the sale of 10 percent or more of the applicant or licensee.
IV. "Documentary fees" mean the fees for filing, recording or investigating, perfecting and releasing or satisfying a retained title or a lien created by a retail installment contract, and shall not exceed the actual cost assessed by the department of safety, division of motor vehicles, or other state or local agency for filing, recording or investigating, perfecting and releasing or satisfying such title or lien.
V. "Finance charge" means the amount agreed upon between the buyer and the seller, as limited in this chapter, to be added to the cash sale price, the amount, if any, included for insurance and other benefits, if a separate charge is made therefor, and documentary fees, in determining the time price.
V-a. "Financial services" or "financial services-related" means securities, commodities, banking, insurance, consumer lending, money transmission, debt adjustment, or real estate, including, but not limited to, acting as or being associated with a bank or savings association, credit union, mortgage lender, mortgage broker, mortgage servicer, real estate salesperson or agent, closing agent, title company, or escrow agent.
VI. The "holder" of a retail installment contract means the retail seller of the motor vehicle under or subject to the contract or, if the contract is purchased by a sales finance company or other assignee, the sales finance company or other assignee.
VI-a. "Indirect owner" means, with respect to direct owners and other indirect owners in a multilayered organization:
(a) In the case of an owner that is a corporation, each of its shareholders that beneficially owns, has the right to vote, or has the power to sell or direct the sale of, 25 percent or more of that corporation.
(b) In the case of an owner that is a partnership, all general partners and those limited and special partners that have the right to receive upon dissolution, or have contributed, 25 percent or more of the partnership's capital.
(c) In the case of an owner that is a trust, the trust, each trustee and each beneficiary of 25 percent or more of the trust.
(d) In the case of an owner that is a limited liability company ("LLC"):
(1) Those members that have the right to receive upon dissolution, or have contributed, 25 percent or more of the LLC's capital; and
(2) If managed by elected managers, all elected managers.
(e) In the case of an indirect owner, the parent owners of 25 percent or more of their subsidiary.
VII. "Motor vehicle" means any device propelled or drawn by any power other than muscular power, in, upon or by which any person or property is or may be transported or drawn upon a highway, excepting power shovels, road machinery, buses, agricultural machinery, house and boat trailers, all-terrain vehicles, snowmobiles, and similar recreational vehicles designed primarily for off-road use.
VII-a. "Nationwide Multistate Licensing System and Registry" means a national licensing system and facility developed and maintained by the Conference of State Bank Supervisors and the American Association of Residential Mortgage Regulators, or their successors, for the licensing and registration of mortgage loan originators, mortgage lenders, mortgage servicers, mortgage brokers, and other non-depository financial service licensees, including retail sellers and sales finance companies.
VIII. "Person" means an individual, partnership, corporation, association, and any other group however organized.
VIII-a. "Principal" of the applicant or licensee means an owner with 10 percent or more ownership interest, corporate officer, director, member, general or limited liability partner, limited partner with 10 percent or more ownership interest, trustee, beneficiary of 10 percent or more of the trust that owns the applicant or licensee, indirect owner, senior manager, New Hampshire branch manager, and any person occupying similar status or performing similar functions.
VIII-b. "Principal office" means the main office location of a person required to be licensed under this chapter.
VIII-c. "Publicly traded" means a company whose securities are traded on a securities exchange system approved and supervised by the Securities and Exchange Commission, including but not limited to the NYSE, AMEX, BSE, and NASDAQ. The term also includes a public reporting company that is subject to sections 12 or 15(d) of the Securities Exchange Act of 1934.
IX. "Retail buyer" or "buyer" means a person who buys a motor vehicle from a retail seller and who executes a retail installment contract either with the retail seller or with any lender.
X. "Retail installment contract" or "contract" means an agreement pursuant to which the title to, the property in, or a lien upon the motor vehicle, which is the subject matter of a retail installment transaction, is retained or taken by a sales finance company indirectly from a retail seller or directly from a retail buyer, as security, in whole or in part, for the retail buyer's obligation. The term includes a promissory note, security agreement, finance agreement, chattel mortgage, conditional sales contract, title loan agreement, rent-to-own agreement, and contract for the bailment or leasing of a motor vehicle, any of which constitutes a "credit sale" under Federal Reserve Board Regulation Z, Truth-in-Lending, 12 C.F.R. 226, as amended from time to time, and a lease as defined in RSA 361-D (except as limited by RSA 361-A:7-a).
XI. "Retail installment transaction" means any consumer credit transaction as defined in RSA 358-K:1, V, evidenced by a retail installment contract entered into between a retail buyer and a retail seller, or between a sales finance company and a retail buyer, wherein the retail buyer buys a motor vehicle subject to a retail installment contract at a time price payable in one or more deferred installments. The cash sale price of the motor vehicle, the amount included for insurance and other benefits if a separate charge is made therefor, documentary fees, and the finance charge, which may include insurance and other benefits, shall together constitute the time price.
XII. "Retail seller" or "seller" means a person who sells a motor vehicle in this state subject to a retail installment contract.
XIII. "Sales finance company" means a person engaged, in whole or in part, directly or indirectly, in the business of providing motor vehicle financing in this state to one or more retail buyers, or in the business of purchasing retail installment contracts from one or more retail sellers. The term includes but is not limited to any state or federally chartered bank, savings bank, trust company, credit union, cooperative bank, finance company, lending agency, industrial bank, or investment company, if so engaged. The term does not include the pledgee of an aggregate number of such contracts to secure a bona fide loan thereon, or other persons not within the intent of this chapter as the commissioner may designate by rule or order, nor does it include a licensed retail seller who:
(a) Makes a retail installment contract and assigns such contract either within 5 business days, if the contract requires monthly payments, or within 2 business days, if the contract requires payments more frequently than monthly, of the contract's execution by the retail buyer and retail seller; or
(b) Makes 4 or fewer retail installment contracts in any year; or
(c) Makes retail installment contracts to employees for the purchases of motor vehicles solely from the retail seller employer.
XIV. [Repealed.]
Source. 1961, 193:1. 1980, 501:1. 1991, 98:1. 1995, 63:1, 2. 1997, 322:1. 2003, 129:1-3, 15, I. 2004, 139:1, 2. 2005, 255:74, 75. 2006, 303:1-4. 2008, 205:1, 2, eff. Aug. 15, 2008. 2009, 204:26, 30, eff. Sept. 13, 2009. 2018, 196:1, eff. Aug. 7, 2018. 2021, 194:1, eff. Oct. 9, 2021.
Section 361-A:2
361-A:2 Licensing of Sales Finance Companies and Retail Sellers Required. –
I. No person shall engage in the business of a sales finance company or retail seller in this state without a license therefor as provided in this chapter. Persons subject to this chapter shall be responsible for the supervision of their employees, agents, and branch offices. No state or federally chartered bank, savings bank, trust company, credit union, cooperative bank, or industrial bank shall be required to obtain such a license but shall comply with the provisions of RSA 361-A:7-12, unless otherwise exempted in this chapter.
II. (a) The application for such license shall be in writing and verified through the Nationwide Multistate Licensing System and Registry using the Nationwide Multistate Licensing System and Registry form. The application shall contain the name of the applicant; the tax applicant's identification number; date of incorporation, if incorporated; the address where the business is or is to be conducted and similar information as to any branch office of the applicant; the trade name, if any, under which the applicant proposes to conduct such business; and such other pertinent information as the commissioner may require. The application shall include a list of the names and resident addresses of principals and the name of any person occupying a similar status or performing similar functions. Each principal shall provide his or her social security numbers and shall authorize the commissioner to conduct a background check. The applicant shall submit any other information that the commissioner may require including, but not limited to, the applicant's form and place of organization, the applicant's proposed method of doing business, the qualifications and business history of the applicant and those persons listed in the application, and in the case of sales finance companies, the applicant's financial condition and history. The applicant shall disclose if any injunction or administrative order has been issued against the applicant or any of its principals listed in the application and whether the applicant or any of its principals have been convicted of a misdemeanor involving financial services or a financial services-related business, or any fraud, false statements or omissions, theft or any wrongful taking of property, bribery, perjury, forgery, counterfeiting, extortion, or a conspiracy to commit any of these offenses, or convicted of any felony, prior to the commissioner's approval of such change.
(1) Unless the applicant is a publicly traded corporation, the department shall complete a background investigation and criminal history records check on the applicant's principals and any person in a similar position or performing similar functions. If the applicant is a subsidiary, the department shall complete a background investigation and criminal history records check on individuals who are indirect owners.
(2) The persons described in subparagraph II(a) shall submit to the department a criminal history records release form, as provided by the New Hampshire division of state police, which authorizes the release of the person's criminal records, if any. The person shall submit with the release form a complete set of fingerprints taken by a qualified law enforcement agency or an authorized employee of the banking department. In the event that the first set of fingerprints is invalid due to insufficient pattern, a second set of fingerprints is necessary in order to complete the criminal history records check. If, after 2 attempts, a set of fingerprints is invalid due to insufficient pattern, the department may, in lieu of the criminal history records check, accept police clearances from every city, town, or county where the person has lived during the past 5 years.
(3) The department shall submit the criminal history records release form to the New Hampshire division of state police which shall conduct a criminal history records check through its records and through the Federal Bureau of Investigation. Upon completion of the background investigation, the division of state police shall release copies of the criminal conviction records to the department. The department shall maintain the confidentiality of all criminal history records information received pursuant to this paragraph.
(4) The department may require the applicant or licensee to pay the actual costs of each background investigation and criminal history records check.
(5) The department may rely on criminal records checks reported through a national licensing facility in lieu of (2) and (3) above.
(b) Every applicant for licensing under this chapter shall file with the commissioner, in such form as the commissioner prescribes by rule, irrevocable consent appointing the commissioner to receive service of any lawful process in any non-criminal suit, action, or proceeding against the applicant or the applicant's successor, executor, or administrator which arises under this chapter or any rule or order under this chapter after the consent has been filed, with the same force and validity as if served personally on the person filing the consent. A person who has filed such a consent in connection with a previous registration need not file another. When any person, including any nonresident of this state, engages in conduct prohibited or made actionable by this chapter or any rule or order under this chapter, and such person has not filed a consent to service of process under this section and personal jurisdiction over such person cannot otherwise be obtained in this state, that conduct shall be considered equivalent to such person's appointment of the commissioner to receive service of any lawful process. Service may be made by leaving a copy of the process in the office of the commissioner along with $5, but is not effective unless:
(1) The plaintiff, who may be the attorney general in a suit, action, or proceeding instituted by him or her, forthwith sends a notice of the service and a copy of the process by registered mail to the defendant or respondent at such person's last address on file with the commissioner; and
(2) The plaintiff's affidavit of compliance with this paragraph is filed in the case on or before the date specified by the court on the summons, if any, or within such further time as the court allows.
(c) If a person holds a valid license under this section and is in compliance with this chapter and the rules thereunder, such licensee may renew the license by paying the required fee to the banking department on or before December 1 for the ensuing year that begins on January 1. Failure to renew the license shall result in the license terminating on December 31.
III. Sales finance company license applicants shall at the same time file with the commissioner a $25,000 surety bond to the state for the use of the state and any person who may have a cause of action against the principal in the bond under the provisions of this chapter, and conditioned that the principal will conform to and abide by each provision of this chapter and will pay to the state and to any such person any sum that may become due or owing under this chapter from the principal of the bond to the state or to such person. Recovery against the bond may be made by the state after due notice and hearing in accordance with the provisions of RSA 541-A, and by any such person who may have obtained a final judgment in a court of competent jurisdiction naming said principal. The surety bond shall be continuous and shall include a provision requiring the surety to give written notice to the commissioner 20 days in advance of the cancellation or termination of the bond. Every bond shall provide that no recovery may be made against the bond unless the state makes a claim for recovery or the person brings suit naming the principal within 6 years after the act upon which the recovery or suit is based.
IV. Each initial and renewal retail seller application shall be accompanied by a nonrefundable application fee of $50 for the principal place of business of the licensee and the sum of $30 for each branch of such licensee maintained in this state.
V. Each initial and renewal sales finance company application shall be accompanied by a nonrefundable application fee of $350 for the principal place of business of the licensee within this state or outside of this state, and the sum of $100 for each branch of such licensee maintained in this state. A person required to obtain a license under the provisions of this section shall not be required to obtain a license as a retail seller.
VI. Sums collected under this chapter shall be payable to the state treasurer as restricted revenue and credited to the appropriation for the commissioner, consumer credit administration division.
VII. Each license shall specify the location of the office or branch and shall be conspicuously displayed there in a public area. In case such location is changed, the commissioner shall endorse the change of location on the license without charge.
VIII. (a) Upon the filing of the complete application for a sales finance company license and payment of the required application fee, if the commissioner determines that the applicant's financial resources and responsibility, experience, personnel, and record of past or proposed conduct warrant the public's confidence and that the business will be operated lawfully, honestly, and fairly within the purposes of this chapter, the commissioner shall enter an order approving such application and shall issue a license to the applicant and shall issue licenses to the applicant's branches to engage in the business of a sales finance company under and in accordance with the provisions of this chapter. Each sales finance company license shall expire on December 31 of each calendar year.
(b) Upon the filing of a complete application for a retail seller license and payment of the required application fee, if the commissioner determines that the applicant's experience and record of past or proposed conduct warrant the public's confidence and that the business will be operated lawfully, honestly and fairly within the purposes of this chapter, the commissioner shall enter an order approving such application and shall issue a license to the applicant and shall issue licenses to the applicant's branches to engage in the business of a retail seller under and in accordance with the provisions of this chapter. Each retail seller license shall expire on December 31 of each calendar year.
(c) No license issued under this chapter shall be transferable or assignable.
IX. No licensee shall transact any business provided for by this chapter under a trade name or any other name different from the name stated in its license or branch office license without immediately notifying the commissioner, who shall then amend the license accordingly.
X. No license shall be issued to any person whose principal place of business is located outside of this state unless that person designates an agent residing within this state for service of process.
XI. Each license issued under the provisions of this chapter shall state the name and address of the principal office of the licensee and, if the license is a branch office license, the name and address of the branch office location for which that license is issued.
XII. Retail sellers and sales finance companies licensed under this chapter are under a continuing obligation to update information on file with the commissioner. If any information filed with the commissioner becomes materially inaccurate, the retail seller and sales finance company licensee shall promptly submit an amendment to its application records to correct the information on file with the commissioner. An amendment shall be considered to be filed promptly if the amendment is filed within 30 days of the event that requires the filing of the amendment. Certain significant events as defined by rule shall be reported to the department in writing within 10 calendar days. A licensee shall submit written notification to the department of the addition or deletion of a person required to be listed in the application, and shall provide the name and address of each new person required to be listed no later than 30 days after such change. Each new person required to be listed shall provide his or her social security number and authorize the commissioner to conduct a background check. The commissioner shall investigate management and ownership changes including, but not limited to, the qualifications and business history of each person required to be listed. The licensee shall investigate and disclose any injunction or administrative order that has been issued against the person required to be listed and whether the person required to be listed has been convicted of a misdemeanor involving financial services or a financial services-related business, or any fraud, false statements or omissions, theft or any wrongful taking of property, bribery, perjury, forgery, counterfeiting, extortion, or a conspiracy to commit any of these offenses, or convicted of any felony, prior to the commissioner's approval of such change.
XIII. The fact that a person is licensed or registered in the state of New Hampshire under this chapter does not constitute a finding that the commissioner has passed in any way upon the merits or qualifications of such person or that the commissioner has recommended or given approval to any person. It is unlawful to make, or cause to be made, to any prospective purchaser, customer, or client any representation inconsistent with the provisions of this paragraph.
XIV. Any license fee required by this chapter shall be paid before a license may become effective.
XV. The commissioner may license or register individuals or firms by means of or through the facilities of a national organization which facilitates registration and licensing on a nationwide basis.
Source. 1961, 193:1. 1977, 563:4. 1985, 55:3. 1988, 220:2. 1995, 63:3; 159:1; 253:1. 1997, 322:2-5. 2003, 129:4. 2004, 139:3, 4. 2005, 255:38, 39, 76. 2006, 303:5, 6. 2008, 205:3, 61, eff. Aug. 15, 2008. 2009, 204:5, 34, 35, eff. Sept. 13, 2009. 2014, 204:15, eff. July 11, 2014. 2018, 318:28, eff. Aug. 24, 2018. 2021, 194:2, eff. Oct. 9, 2021.
Section 361-A:2-a
361-A:2-a License Surrender. –
I. (a) A licensee who ceases to engage in the business of a sales finance company or retail seller at any time during a license year for any cause, including but not limited to bankruptcy, license revocation or voluntary dissolution, shall surrender such license in person or by registered or certified mail to the commissioner within 15 calendar days of such cessation.
(b) Withdrawal of the surrendered license becomes effective 30 days after receipt of the license by the commissioner or within such shorter period of time as the commissioner may determine, unless a revocation or suspension proceeding is pending when the withdrawal is filed or a proceeding to revoke or suspend or to impose conditions upon the withdrawal is instituted within 30 days after the license is surrendered. If a proceeding is pending or instituted, withdrawal becomes effective at such time and upon such conditions as the commissioner by order determines. If no proceeding is pending or instituted and withdrawal automatically becomes effective, the commissioner may nevertheless institute a revocation or suspension proceeding under RSA 361-A:3 within one year after the withdrawal became effective and may enter a revocation or suspension order as of the last date on which the license was effective.
II. Failure to comply with the provisions of this section and rules adopted under this section shall be cause for denial of future license applications and the imposition of penalties under RSA 361-A:11.
Source. 1995, 31:1. 2003, 129:14. 2004, 139:5, eff. July 23, 2004.
Section 361-A:2-b
361-A:2-b Annual Report. –
I. (a) Each sales finance company licensee shall file, under oath, an annual report through the Nationwide Multistate Licensing System and Registry on or before March 31 each year concerning operations for the preceding year or license period ending December 31 upon a form prescribed by the commissioner.
(b) A person who surrenders, withdraws, or does not renew a license shall file the annual report as required in subparagraph (a), notwithstanding the fact that he or she is not licensed on the date that the report is due.
(c) Each sales finance company shall also file, under oath, its financial statement through the Nationwide Multistate Licensing System and Registry within 90 days from the date of its fiscal year end. The financial statement shall be prepared in accordance with generally accepted accounting principles and shall include a balance sheet, income statement, statement of changes in owners' equity, a cash flow statement, and note disclosures. If the financial statement is not audited, a certification statement shall be attached and signed by a duly authorized officer of the sales finance company. The certification statement shall state that the financial statement is true and accurate to the best of the officer's belief and knowledge.
(d) In lieu of the requirements of subparagraph (c), licensees may submit copies of their most recent Securities and Exchange Commission Form 10-K and Form 10-Q statements.
II. The commissioner shall publish an analysis of the information required in the sales finance company's annual report as part of the commissioner's annual report.
III. Any sales finance company failing to file either the annual report or the financial statement required by this section within the time prescribed shall pay to the commissioner a penalty of $25 for each calendar day the annual report or financial statement is overdue to a maximum penalty of $2,500 per report or statement and shall be subject to suspension or revocation of its license.
IV. In addition to the annual report and financial statement required by this section, the commissioner may require such regular or special reports as the commissioner deems necessary to the proper supervision of licensees under this chapter.
V. A licensee who files an annual report under this section which fails to disclose or materially misstates retail installment contracts made during the reporting year may, after notice and opportunity for hearing pursuant to RSA 541-A, be subject to a fine of not more than $1,000 and to license revocation or suspension pursuant to RSA 361-A:3.
VI. Any officer, owner, manager or agent of any licensee and any person controlling or having a contract under which he or she has a right to control such a licensee, whether exclusively or otherwise, and any person with executive authority over or in charge of any segment of such a licensee's affairs, shall reply promptly in writing, or in other designated form, to any written inquiry from the commissioner requesting a reply. The commissioner may require that any communication made to him or her under this section be verified.
Source. 1995, 135:1. 1997, 322:6. 2003, 129:5. 2004, 139:6, 7. 2005, 255:54. 2008, 205:4, eff. Aug. 15, 2008. 2021, 194:3, eff. Oct. 9, 2021.
Section 361-A:3
361-A:3 Suspension or Revocation of Licenses. –
I. The commissioner may issue an order requiring a person to whom any license has been granted or any person under the commissioner's jurisdiction to show cause why the license should not be revoked or penalties should not be imposed, or both, for violations of this chapter. The order shall give reasonable notice of the opportunity for a hearing and shall state the reasons for the issuance of the order. The commissioner may by order summarily postpone or suspend any license or application pending final determination of any order to show cause, or other order, or of any other proceeding under this section, provided the commissioner finds that the public interest would be irreparably harmed by delay in issuing such order. Upon the entry of the order, the commissioner shall promptly notify the respondent, applicant, or licensee that the order has been entered and of the reasons for the order and that within 10 calendar days after receipt of a written request the matter will be scheduled for a hearing. Valid delivery of such order shall be by hand or certified mail at the last known principal office of the licensee or respondent or to an officer, director, 5 percent or more owner, member, partner, or legal representative of the licensee or respondent. If the person to whom an order to show cause or other order is issued fails to request a hearing within 30 calendar days of receipt or valid delivery of the order and no hearing is ordered by the commissioner, then such person shall be deemed in default, and the order shall, on the thirty-first day, become permanent, and shall remain in full force and effect until and unless later modified or vacated by the commissioner, for good cause shown. A hearing, if requested, shall be scheduled not later than 10 calendar days after the written request for such hearing is received by the commissioner, after which and within 20 calendar days from the date of the hearing the commissioner shall enter an order making such disposition of the matter as the facts require. If the licensee or respondent fails to request a hearing within 30 calendar days of receipt or valid delivery of such order or fails to appear at a hearing after being duly notified, or cannot be located after a reasonable search, such person shall be deemed in default and the proceeding may be decided against the person upon consideration of the order to show cause, or other order, the allegations of which may be deemed to be true.
I-a. The commissioner may, by order, deny, suspend, or revoke any license or application and bar any person from licensure if the commissioner finds that the order is in the public interest and the applicant, respondent, or licensee, any partner, officer, member, or director, any person occupying a similar status or performing similar functions, or any person directly or indirectly controlling the applicant, respondent, or licensee:
(a) Has filed an application for licensing which as of its effective date, or as of any date after filing in the case of an order denying effectiveness, was incomplete in any material respect or contained any statement which was, in light of the circumstances under which it was made, false or misleading with respect to any material fact;
(b) Has made a false or misleading statement to the commissioner or in any reports to the commissioner;
(c) Has made fraudulent misrepresentations, has circumvented or concealed, through whatever subterfuge or device, any of the material particulars required to be stated or furnished to a borrower under the provisions of this chapter;
(d) Has failed to supervise its agents, managers, or employees;
(e) Is the subject of an order entered within the past 5 years by this state, any other state, or federal regulator denying, suspending, or revoking licenses or registration;
(f) Is permanently, preliminarily, or temporarily enjoined by any court of competent jurisdiction from engaging in or continuing any conduct or practice involving any aspect of lending or collection activities;
(g) Is not qualified on the basis of such factors as experience, knowledge, and financial integrity;
(h) Has engaged in dishonest or unethical practices in the conduct of making retail installment transactions or collecting on retail installment contracts;
(i) Has violated this chapter or any rule or order thereunder or has violated applicable federal laws or rules thereunder;
(j) Has made an unsworn falsification under RSA 641:3 to the commissioner; or
(k) For other good cause shown.
II. If a licensee is a partnership, association, corporation, or entity however organized it shall be sufficient cause for the suspension or revocation of a license that any officer, director, or trustee of a licensed association or corporation or any member of a licensed partnership has so acted or failed to act in behalf of said licensee as would be cause for suspending or revoking a license to such party as an individual. Each licensee shall be responsible for supervision of its branch offices and for the acts of any or all of his or her employees while acting as his or her agent if such licensee, after actual knowledge of said acts, retained the benefits, proceeds, profits, or advantages accruing from said acts or otherwise ratified said acts.
III. Any license revocation, suspension, or unfavorable action by the department on a license shall comply with the provisions of RSA 541-A. An aggrieved licensee may, pursuant to RSA 541-A and RSA 541, appeal an unfavorable action by the department. The department may take action for immediate suspension of a license, pursuant to RSA 541-A.
IV. If the commissioner finds that any licensee or applicant for license is no longer in existence or has ceased to do business as a retail seller or sales finance company, or cannot be located after reasonable search, the commissioner may by order revoke the license, impose penalties, or deny the application. The commissioner may deem abandoned and withdraw any application for licensure made pursuant to this chapter, if any applicant fails to respond in writing within 180 calendar days to a written request from the commissioner requesting a response. Such request shall be sent via certified mail to the last known address of the applicant that is on file with the commissioner.
Source. 1961, 193:1. 1995, 63:4, 10. 1997, 322:7. 2003, 129:6. 2004, 139:8. 2005, 255:55, 77-79, eff. Sept. 12, 2005. 2009, 204:1, eff. Sept. 13, 2009.
Section 361-A:3-a
361-A:3-a Cease and Desist Orders. –
I. Whenever the commissioner has reasonable cause to believe that any person is engaging in the business of a sales finance company or retail seller without obtaining a license as provided in this chapter, or has engaged or is about to engage in any act or practice constituting a violation of this chapter, or any rule or order under this chapter, the commissioner may, in addition to all actions provided for in this chapter, enter an order requiring such person to cease and desist from such violation. Delivery of such order shall be by hand or registered mail at the principal office of the licensee or other person. The order shall be calculated to give reasonable notice of the rights of the person to request a hearing on the order and shall state the reasons for the entry of the order. A hearing shall be held not later than 10 days after the request for such hearing is received by the commissioner after which and within 20 days of the date of the hearing the commissioner shall issue a further order vacating the cease and desist order or making it permanent as the facts require. All hearings shall comply with RSA 541-A. If the person to whom a cease and desist order is issued fails to appear at the hearing after being duly notified, the person shall be deemed in default, and the proceeding may be decided against him or her upon consideration of the cease and desist order, the allegations of which may be deemed to be true. If the person to whom a cease and desist order is issued fails to request a hearing within 30 calendar days of receipt of such order, then such person shall likewise be deemed in default, and the order shall, on the thirty-first day, become permanent, and shall remain in full force and effect until and unless later modified or vacated by the commissioner, for good cause shown.
II. If any person refuses to obey such order, an action may be brought by the commissioner or by the attorney general on the commissioner's behalf in any superior court in this state to enjoin such person from engaging in or continuing such violation or from doing any act or acts in furtherance of such violation. In any such action, an order or judgment may be entered awarding a temporary or permanent injunction, and awarding the commissioner or the attorney general or both costs in bringing such action. The court shall have the power to enforce obedience to such injunction, in addition to all the court's customary powers, by a fine not exceeding $10,000 or by imprisonment, or both.
Source. 1997, 322:8. 2003, 129:7. 2004, 139:9, eff. July 23, 2004.
Section 361-A:3-b
361-A:3-b Prohibitions. –
I. It is unlawful for any person, in connection with the solicitation, offer, or closing of a loan, directly or indirectly:
(a) To employ any device, scheme, or artifice to defraud;
(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading; or
(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person.
II. It is unlawful for any person to make or cause to be made in any document filed under this chapter or in any proceeding under this chapter any statement which is, at the time and in the light of the circumstances under which it is made, false or misleading in any material respect or, in connection with such statement, to omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading.
III. Any condition, stipulation or provision binding any person to waive compliance with any provision of this chapter or any rule or order under this chapter is void.
IV. It is unlawful to instruct, solicit, propose, or cause a person to sign another's signature on any document without legal authority.
V. It is unlawful to solicit, accept, or execute any contract or other document related to any transaction that contains any blanks to be filled in after signing or initialing the contract or other document, except for forms authorizing the verification of application information or as otherwise expressly provided in this chapter.
Source. 2008, 205:5, eff. Aug. 15, 2008. 2019, 36:2, eff. May 15, 2019.
Section 361-A:4
361-A:4 Filing of Complaints. –
Any retail buyer having reason to believe that the provisions of this chapter relating to his retail installment contract have been violated may file with the commissioner a written complaint setting forth the details of such alleged violation; and the commissioner, upon receipt of such complaint, may inspect the pertinent books, records, letters and contracts of the licensee and of the retail seller involved relating to such specific written complaint. Said commissioner may also make inspections of the records of sales finance companies without the receipt of a specific complaint for any reasonable cause.
Source. 1961, 193:1. 2003, 129:14, eff. June 12, 2003.
Section 361-A:4-a
361-A:4-a Consumer Inquiries. –
I. Consumer complaints naming retail sellers or sales finance companies under this chapter, which are filed in writing with the office of the commissioner, shall be forwarded via electronic mail or certified or registered mail to the retail seller or sales finance company for response within 10 days of receipt by the department. Retail sellers or sales finance companies shall, within 10 days after receipt of such complaint, send a written acknowledgment thereof to the consumer and the banking department. Not later than 30 days following receipt of such complaint, the retail seller or sales finance company shall conduct an investigation of the complaint and either:
(a) Make appropriate corrections in the account of the consumer and submit to the consumer and the banking department written notification of such corrections, including documentary evidence thereof; or
(b) Submit a written explanation or clarification to the consumer and the banking department which sets forth, to the extent applicable, the reasons why the licensee believes its actions are correct, including copies of documentary evidence thereof.
II. A retail seller or sales finance company who fails to respond to consumer complaints as required by this section within the time prescribed shall pay to the commissioner the sum of $50 for each day such response is overdue. For purposes of this section, the date of submission shall be the date such response is received by the banking department.
III. (a) Retail sellers or sales finance companies who, because of extenuating circumstances beyond the control of the retail seller or sales finance company, are unable to comply with the time frames prescribed in this section, may make written request to the commissioner for a waiver of such time frames. Waivers shall not be granted or considered unless the request for the waiver:
(1) Is received by the banking department within 20 days following the retail seller's or sales finance company's receipt of the complaint;
(2) Specifies the reason for the request; and
(3) Specifies a date certain by which the retail seller or sales finance company shall comply with the provisions of this section.
(b) Requests for waivers shall be either granted or denied within 5 days of receipt by the banking department.
IV. [Repealed.]
Source. 1992, 116:1. 1995, 253:13, I. 2003, 129:8, eff. June 12, 2003. 2018, 207:2, 3, eff. Aug. 7, 2018. 2021, 194:23, eff. Oct. 9, 2021.
Section 361-A:5
361-A:5 Powers of Commissioner. –
I. The commissioner shall have the power to issue a subpoena to compel the attendance of witnesses and the production of documents, papers, books, records, and other evidence before the commissioner in any matter over which the commissioner has jurisdiction, control or supervision pertaining to the provisions of this chapter. The commissioner shall have the power to administer oaths and affirmation to any person whose testimony is required. If any person shall refuse to obey any such subpoena or to give testimony or to produce evidence as required thereby, any justice of the superior court may, upon application and proof of such refusal, order the issuance of a subpoena, or subpoena duces tecum, out of the superior court, for the witness to appear before the superior court to give testimony, and to produce evidence as required thereby. Upon filing such order in the office of the clerk of the superior court, the clerk shall issue such subpoena, as directed, requiring the person to whom it is directed to appear at the time and place therein designated. If any person served with any such subpoena shall refuse to obey the same, and to give testimony, and to produce evidence as required thereby, the commissioner may apply to any justice of the superior court who, after proof of such refusal, shall issue such citation, directed to any sheriff, for the arrest of such person, and, upon such person's being brought before such justice, proceed to a hearing of the case. The court shall have power to enforce obedience to such subpoena, and the answering of any question and the production of any evidence that may be proper, by a fine not exceeding $10,000 or by imprisonment, or by both.
II. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to the administration and enforcement of this chapter.
III. The commissioner may prepare, alter, or withdraw such forms as are necessary to comply with the provisions of this chapter including personal disclosure statements and authorizations to meet the requirements of RSA 361-A:2.
IV. The commissioner may issue, amend, or rescind such orders as are reasonably necessary to carry out the provisions of this chapter.
V. The commissioner may, for good cause shown, abate all or a portion of delinquency penalties assessed under this chapter.
VI. All actions taken by the commissioner pursuant to this chapter shall be taken only when the commissioner finds such action necessary or appropriate to the public interest or for the protection of consumers and consistent with the purposes fairly intended by the policy and provisions of this title.
VII. The commissioner shall have the authority to investigate conduct that is or may be in violation of this chapter, may hold hearings relative to such conduct, and may order restitution for a person adversely affected by such conduct.
VIII. In adopting rules, preparing forms, setting standards, and performing examinations, investigations, and other regulatory functions authorized by the provisions of this chapter, the commissioner may cooperate, and share information pursuant to confidentiality agreements, with regulators in this state and with regulators in other states and with federal regulators in order to implement the policy of this chapter in an efficient and effective manner and to achieve maximum uniformity in the form and content of applications, reports, and requirements for sales finance companies and retail sellers, where practicable.
IX. The commissioner shall have the authority to set fees to be charged to cover the reasonable costs of copying documents and producing reports.
Source. 1961, 193:1. 1997, 322:9. 2003, 129:9. 2004, 141:2. 2005, 255:40, 41, eff. Sept. 12, 2005.
Section 361-A:6
361-A:6 Enforcement; Cooperation With and Referral to the Consumer Protection and Antitrust Bureau of the Department of Justice. –
For the enforcement of the provisions of this chapter, the commissioner is authorized to appoint, subject to the provisions of the personnel law, such personnel as are necessary. The salary, traveling expenses, and all expenses of administration and enforcement of the provisions of this chapter shall be paid out of fees received from licenses issued under this chapter, and funds collected pursuant to RSA 383:11.
I. For the enforcement of the provisions of this chapter, the commissioner shall appoint and designate, subject to the provisions of the personnel law, personnel to respond to consumer complaints and enforce this chapter. Such personnel shall request the assistance and services of the consumer protection and antitrust bureau of the department of justice when appropriate. The salary, traveling expenses, and all expenses of administration and enforcement of the provisions of this chapter shall be paid out of fees received from licenses issued under this chapter, and funds collected pursuant to RSA 383:11.
II. Any unfair or deceptive trade practice that is not addressed under the provisions of this chapter shall be referred to the consumer protection and antitrust bureau for enforcement under the provisions of RSA 358-A.
III. The commissioner may share information with state and federal regulators, and may share information with law enforcement agencies for the purposes of criminal investigations.
Source. 1961, 193:1. 1997, 322:10. 2003, 129:14. 2004, 141:3, eff. July 23, 2004. 2009, 204:9, eff. Sept. 13, 2009.
Section 361-A:6-a
361-A:6-a Examinations. –
I. The commissioner may examine the business affairs of any sales finance company licensee or any other person, whether licensed or not, as the commissioner deems necessary to determine compliance with this chapter and the rules adopted pursuant to it. In determining compliance, the banking department may examine the books, accounts, records, files, and other documents, whether electronically stored or otherwise, and any other matters of any sales finance company licensee or person. The banking department shall have the power to subpoena witnesses and administer oaths in any adjudicative proceeding, and to compel, by subpoena duces tecum, the production of all books, records, files, whether electronically stored or otherwise, and other documents and materials relevant to its investigation.
II. (a) The affairs and records of every sales finance company licensee or person shall be subject at any time to periodic, special, regular, or other examination by the banking department with or without notice to the licensee or person. Those licensees or persons, including those that maintain their files and business documents in another state, shall:
(1) Deliver to the commissioner a list of all New Hampshire consumers who have contracted with the licensee or with whom the licensee is otherwise engaged in business regulated under this chapter, and other requested lists summarizing the business of the licensee, within 7 days of receipt of the request; and
(2) Deliver to the commissioner files selected by the commissioner from the list delivered in subparagraph (a)(1), and any other files or documents requested, within 21 days of receipt of the request.
(b) Failure to provide files or documents within the time established by this paragraph shall subject a licensee or person to a fine of $50 per day for each day the files or documents are not produced. Failure to provide files or documents to the commissioner within 60 days after receipt of the request shall be sufficient cause for license revocation, suspension, or denial.
III. Any agent of the banking department may make a thorough examination into the business affairs of any sales finance company licensee or person and shall report any violations of law, rule, or standard business practice to the banking department.
IV. The expense of such examination shall be chargeable to and paid by the sales finance company licensee or person. The payment shall be calculated by the same method as for payments by institutions for cost of examinations under RSA 383:11.
IV-a. The commissioner may, in his or her discretion, accept all or a part of a report of examination of a sales finance company, certified to by the regulatory supervisory official of another state. To avoid unnecessary duplication of examinations, the commissioner, insofar as he or she deems it practicable in administering this section, may cooperate with the regulators of other states, the Federal Trade Commission, other federal regulators, or their successors in conducting examinations and investigations.
V. Every person being examined, and all of the officers, directors, employees, agents, and representatives of such person shall make freely available to the commissioner or his or her examiners the accounts, records, documents, files, information, assets, and matters in their possession or control relating to the subject of the examination and shall facilitate the examination.
(a) Upon receipt of a written report of examination, the licensee shall have 30 days or such additional reasonable period as the commissioner for good cause may allow, within which to review the report, recommend any changes and set forth in writing the remedial course of action the licensee will pursue to correct any reported deficiencies outlined in the report.
(b) If so requested by the person examined, within the period allowed in subparagraph (a), or if deemed advisable by the commissioner without such request, the commissioner shall hold a closed hearing relative to the report and shall not file the report in the department until after such closed hearing and issuance of his or her order thereon. If no such closed hearing has been requested or held, the examination report, with such modifications, if any, thereto as the commissioner deems proper, shall be accepted by the commissioner and filed upon expiration of the review period provided for in subparagraph (a). The report shall be accepted and filed within 6 months after final hearing.
(c) All reports pursuant to this section shall be privileged and although filed in the department as provided in subparagraph (b) shall not be for public inspection. The comments and recommendations of the examiner shall also be confidential information and shall not be available for public inspection.
VI. In any investigation to determine whether any person has violated or is about to violate this chapter or any rule or order under this chapter, upon the commissioner's finding that the person violated this chapter or a rule or order under this chapter, or the person charged with the violation being found in default, the commissioner shall be entitled to recover the cost of the investigation, in addition to any other penalty provided for under this chapter.
Source. 1995, 63:5. 1997, 322:11. 2003, 129:10, 14. 2005, 255:42, 43. 2008, 205:6, eff. Aug. 15, 2008. 2009, 204:13, eff. Sept. 13, 2009. 2019, 168:1, eff. Sept. 8, 2019. 2021, 51:1, eff. July 24, 2021.
Section 361-A:7
361-A:7 Requirements and Prohibitions as to Retail Installment Contracts. –
I. (a) A retail installment contract shall be in writing, shall be signed by the buyer and (1) for direct loans, the sales finance company; or (2) for indirect loans, the seller and shall be completed as to all essential provisions or by memorandum as provided in paragraph VI prior to the signing of the contract by the buyer.
(b) The printed portion of the contract, other than instructions for completion, shall be in at least 8 point type. The contract shall contain in a size equal to at least 10 point bold type: A specific statement that liability insurance coverage for bodily injury and property damage caused to others is not included, if that is the case, and the following notice: "Notice to the Buyer: 1. Read this contract before signing. 2. You are entitled to an exact copy of the contract you sign."
(c) The seller shall, for an indirect loan, or the sales finance company shall, for a direct loan, deliver to the buyer, or mail to the buyer at the address shown on the contract, a copy of the signed contract. Until the seller or sales finance company does so, a buyer who has not received delivery of the motor vehicle shall have the right to rescind the agreement and to receive a refund of all payments made and return of all goods traded in to the seller on account of or in contemplation of the contract, or if such goods cannot be returned, the value thereof. Any acknowledgment by the buyer of delivery of a copy of the contract shall be in a size equal to at least 10 point bold type and, if contained in the contract, shall appear directly above the buyer's signature.
(d) The contract shall contain the names of the seller and the buyer, if an indirect loan, or the names of the sales finance company and the buyer, if a direct loan, the place of business of the seller, if an indirect loan, or the sales finance company, if a direct loan, the legal residence or place of business of the buyer as specified by the buyer and, for an indirect loan, a description of the motor vehicle including its make, year, model and identification numbers or marks. For a direct loan, the sales finance company shall retain in the loan file a copy of the purchase and sale agreement between the buyer and the seller that contains a description of the motor vehicle that is substantially similar to the description required in the contract for an indirect loan.
II. The contract shall contain the following:
(a) The cash sale price of the motor vehicle;
(b) The amount of the buyer's down payment, and whether made in money or goods, or partly in money and partly in goods;
(c) The difference between items (a) and (b);
(d) The amount, if any, included for insurance, guaranteed asset protection waiver, and other benefits, specifying the types of coverage and benefits, stating separately by rate or in terms of dollars the amount charged for credit sickness, accident and life insurance, whether issued under a group policy or not;
(e) The amount actually paid or to be paid by the seller pursuant to an agreement with the buyer to discharge a security interest, lien or lease interest on traded-in property;
(f) The amount of documentary fees;
(g) The principal balance, which is the sum of (c), (d), (e) and (f);
(h) The amount of the finance charge, and specification of the types of coverage and benefits for any insurance coverage or other benefits included therein, with the rate for credit sickness, accident and life insurance stated separately by rate or in terms of dollars, whether issued under a group policy or not;
(i) The time balance, which is the sum of (g) and (h), payable in installments by the buyer, the number of installments, the amount of each installment and the due date or period thereof.
The above subparagraphs in paragraph II need not be stated in the sequence or order set forth. Additional paragraphs may be included to explain the calculations involved in determining the stated time balance to be paid by the buyer.
III. The amount, if any, included for insurance, which may be purchased by or protects the holder of the retail installment contract, shall not exceed the applicable premiums chargeable in accordance with the rates filed with the insurance commissioner. If dual interest insurance on the motor vehicle is purchased by the holder, the holder shall, within 30 days after execution of the retail installment contract, send or cause to be sent to the buyer a policy or policies or certificate of insurance, written by an insurance company authorized to do business in this state, clearly setting forth the amount of the premium, the kind or kinds of insurance, the coverages and all the terms, exceptions, limitations, restrictions and conditions of the contract or contracts of insurance. The buyer shall have the privilege of purchasing insurance from an agent or broker of the buyer's own selection authorized by the insurance commissioner to do business in the state, but in such case the inclusion of the dual interest insurance premium in the retail installment contract shall be optional with the seller.
IV. If any insurance is cancelled, unearned insurance premium refunds received by the holder shall be credited to the final maturing installments of the contract except to the extent applied toward payment for similar insurance protecting the interests of the buyer and the holder or either of them.
IV-a. If a retail installment contract is paid in full prior to maturity, then no later than 30 days after payment in full, the holder of the contract shall provide written notice of such payment to any insurance company that has issued an insurance contract the premium of which was financed as part of such retail installment contract. Such notice shall contain the date the retail installment contract was paid in full, the name and last known address of the buyer under the contract, and shall state that pursuant to RSA 361-A a refund by the insurer of any unused prepaid premium is due the buyer upon receipt of the notice. A copy of the notice shall be given to the buyer, or mailed to the buyer's last known address.
V. The holder may, if the contract so provides, collect a single delinquency and collection charge on each installment in default for a period not less than 10 days in an amount not in excess of 5 percent of the installment in default. In addition to such delinquency and collection charge, the contract may provide for the payment of reasonable attorneys' fees where such contract is referred for collection to an attorney not a salaried employee of the holder of the contract plus the court costs and the financier's out-of-pocket collection expenses. The pyramiding of delinquency or the collection of unfair late charges as prohibited in Federal Reserve Regulation AA, 12 C.F.R. 227.15, as amended from time to time, is prohibited.
VI. No retail installment contract shall be signed by any party thereto when it contains blank spaces to be filled in after it has been signed; except that, if delivery of the motor vehicle is not made at the time of the execution of the contract, the identifying numbers or marks of the motor vehicle or similar information, and the due date of the first installment, may be inserted in the contract after its execution; and except that said contract may be so signed provided the buyer is given at the time of such execution a bill of sale, invoice or similar memorandum clearly indicating the sales price, down payment, type or types of insurance coverage and the number, period and amount of payments; and provided said contract when completed conforms with said bill of sale, invoice or memorandum, and a copy of said contract is delivered to said buyer subject to adjustment only with reference to final closeout figure for any outstanding balance on a car traded in. The buyer's written acknowledgment, conforming to the requirements of subparagraph I(c), of delivery of a copy of a contract shall be conclusive proof of such delivery, that the contract when signed did not contain any blank spaces except as provided, and of compliance with this section in any action or proceeding by or against the seller or the holder of the contract.
VII. Within 5 business days of receipt of written request from the buyer, the holder of a retail installment contract shall give or forward to the buyer a written statement of the dates and amounts of payments or the total amount unpaid under such contract, or both, as specified in the request. A buyer shall be given a written or stamped receipt for any payment when made in cash.
VIII. A provision in a retail installment contract (1) for confession of judgment, power of attorney therefor, or wage assignment; (2) for the subsequent inclusion of title to or lien upon any goods, other than the motor vehicle which is the subject matter of the retail installment sale or accessories therefor or special or auxiliary equipment used in connection therewith, or in substitution, in whole or in part, for any such accessory or special or auxiliary equipment, as security for payment of the total time price; (3) whereby, in the absence of the buyer's default, the holder may accelerate the maturity of any part of all of the time balance; (4) whereby a seller or holder of the contract, or other person acting on his behalf, is authorized to enter the buyer's premises unlawfully, or to commit any breach of the peace in the repossession of a motor vehicle; (5) whereby the buyer waives any right of action against the seller or holder of the contract, or other person acting on his behalf, for any illegal act committed in the collection of payments under the contract or in the repossession of the motor vehicle; (6) whereby the buyer executes a power of attorney appointing the seller or holder of the contract, or other person acting on his behalf, as the buyer's agent in the collection of payments under the contract or in the repossession of the motor vehicle; or (7) whereby the seller is relieved from liability for any legal remedies which the buyer may have had against the seller under the contract, or any separate instrument executed in connection therewith, shall not be enforceable.
IX. The following provisions are prohibited in retail installment contracts and shall not be enforceable:
(a) Any provision permitting the holder to waive the buyer's right to notice of default.
(b) Any provision permitting the holder to accelerate the principal balance under the contract for default for any cause other than:
(1) Non-payment of any amount due under the terms of the contract.
(2) Failure to insure the vehicle which secures the contract against loss, if such insurance is required by the terms of the contract. Provided, however, that the holder may not accelerate the principal balance solely as a result of the failure to insure until the holder gives the buyer written notice conspicuously stating that the buyer has the opportunity to cure the default under this subparagraph by submitting proof of insurance to the holder within 15 days of the mailing of the notice. If no proof of insurance is submitted to the holder within 15 days of mailing of notice, the holder may accelerate the principal balance. This subparagraph shall not apply if the contract obligates the holder to purchase such insurance and collect the premiums for the insurance from the buyer.
(3) Removal of the collateral from the United States or Canada without the holder's permission.
(4) Sale, rental, lease, or other transfer of an interest in the collateral without the holder's permission.
(5) Commencement of a proceeding in bankruptcy by or against the buyer.
(6) Other significant impairment of the realization of the collateral, limited to seizure of the vehicle by law enforcement officials, encumbrance of the vehicle, abandonment of the vehicle, or loss, theft, or destruction of the vehicle that is not covered by insurance.
(c) Any provisions permitting the holder to:
(1) Declare the note in default prior to 10 days following failure to make any installment payment due; or
(2) Add any charge for vehicle repairs to the principal balance of the contract after the contract has been executed; or
(3) Assess a prepayment penalty on a contract with a term of less than 6 years.
(d) Any provision under which a buyer waives any right, benefit, or privilege which is conferred upon the buyer under this chapter.
Source. 1961, 193:1. 1991, 98:2. 1997, 322:12-17. 1998, 327:1, 2. 1999, 218:1, eff. Jan. 1, 2000. 2015, 207:5, eff. Sept. 4, 2015.
Section 361-A:7-a
361-A:7-a Direct Loans by Sales Finance Companies, and Exceptions. –
The provisions of RSA 361-A:7 shall apply to a sales finance company which provides direct loans to retail buyers for the purchase of motor vehicles from retail sellers, except RSA 361-A:7, I and II shall not apply to federally chartered banks, savings banks, trust companies, credit unions, cooperative banks, or industrial banks which do not act as sellers, but provide direct loans to retail buyers and supply a disclosure statement in conformity with Federal Reserve Board Regulation Z, Truth-in-Lending, 12 C.F.R. 226, as amended from time to time. In addition, RSA 361-A:7, I-IV-a and VI-IX and RSA 361-A:8 shall not apply to a lease as defined in RSA 361-D.
Source. 1995, 63:6. 1997, 322:18, eff. June 23, 1997.
Section 361-A:7-b
361-A:7-b Guaranteed Asset Protection Waivers. –
Persons subject to or licensed under this chapter may offer, sell, and provide guaranteed asset protection waivers (GAP waivers), as defined in RSA 361-E:2, I(f), in accordance with RSA 361-E. Any violation of RSA 361-E is a violation of this chapter.
Source. 2015, 207:2, eff. Sept. 4, 2015.
Section 361-A:8
361-A:8 Finance Charge. –
I. Notwithstanding the provisions of any other law, the finance charge on any retail installment contract under this chapter shall be such as may be agreed upon by the buyer and the seller or by the buyer and the sales finance company.
II. Such finance charge shall be computed on the principal balance as determined under paragraph II of RSA 361-A:7 on contracts payable in successive monthly payments substantially equal in amount. Such finance charge may be computed on the basis of a full month for any fractional month period in excess of 10 days. A minimum finance charge of $25 may be charged on any retail installment transaction.
III. When a retail installment contract provides for unequal or irregular installment payments, the finance charge may be at the effective rates permitted in paragraph I, having due regard for the schedule of payments so that the finance charge may provide the same yield as is permitted in a regular payment transaction.
IV. Any sales finance company may purchase or acquire or agree to purchase or acquire from any seller any contract on such terms and conditions as may be agreed upon between them. Filing of the assignment, notice to the buyer of the assignment, and any requirement that the holder maintain dominion over the payments or the motor vehicle if repossessed shall not be necessary to the validity of a written assignment of a contract as against creditors, subsequent purchasers, pledgees, mortgagees and lien claimants of the seller. Unless the buyer has notice of the assignment of his contract, payment thereunder made by the buyer to the last known holder of such contract shall be binding upon all subsequent holders.
Source. 1961, 193:1. 1980, 501:2, 3. 1981, 127:1. 1995, 63:7, eff. Jan. 1, 1996.
Section 361-A:8-a
361-A:8-a Balloon Payment Loans. –
I. The general court recognizes that both borrowers and lenders may wish to have balloon retail installment contracts available as a credit option for the purchase of motor vehicles. The general court also recognizes the potential for confusion or misunderstanding by borrowers of the nature and terms of balloon retail installment contracts, and for misleading lending practices. To this end, the general court hereby authorizes the making of balloon retail installment contracts and authorizes the commissioner to adopt rules pursuant to RSA 541-A to protect borrowers from misleading lending practices.
II. Notwithstanding the provisions of RSA 361-A:8, III, a retail installment contract for a new motor vehicle may provide for a balloon payment.
III. (a) Balloon contracts shall contain a provision requiring the lienholder to accept return of the motor vehicle that secures the balloon loan, without penalty or additional cost, payment, or expense, to the retail buyer in satisfaction of the balloon payment due under the balloon contract.
(b) Collection of any amounts due under the terms of the balloon contract that have accrued during the period of the contract that precedes the balloon payment due date shall not violate the provision contained in subparagraph (a).
(c) If the balloon contract so provides, a disposition fee may be charged to the retail buyer, provided such fee does not exceed $250, or such greater or lesser amount announced by the commissioner to annually adjust the disposition fee based upon changes in the consumer price index for all urban consumers, all items category, of consumer prices compiled and reported by the U.S. Department of Labor, Bureau of Labor Statistics.
(d) Any cost to the retail buyer associated with the return of a motor vehicle under a balloon contract pursuant to this paragraph shall not exceed the total of the disposition fee, excess mileage fee, excess wear and tear fee, if any, and any accrued amounts due in accordance with subparagraph (b).
IV. The commissioner shall adopt rules, pursuant to RSA 541-A, to implement the purpose and requirements of this section, including, but not limited to, balloon contract disclosures and balloon payment refinancing disclosures. Any disclosures required by rules adopted by the commissioner pursuant to this paragraph shall be in addition to disclosures required by the federal Consumer Credit Protection Act, as amended (15 U.S.C. 1601 et seq.).
V. Balloon retail installment contracts shall contain a provision that affords retail buyers the option to refinance the balloon payment at an annual percentage rate no greater than the annual percentage rate under the balloon contract. Creditors under this paragraph shall be entitled to deny a refinance request if the retail buyer would not have been eligible for the balloon contract, based on credit history or other credit underwriting standards established by written policy of the creditor. The creditor's credit underwriting standards for refinancing a balloon payment shall be substantially identical to the underwriting standards used by the creditor when the creditor issued a commitment to the borrower to fund the original balloon retail installment contract. Refinancing of balloon payments shall be subject to the requirements of this chapter. The contract evidencing such refinancing shall be deemed a retail installment contract. An estimate of the monthly payment amount for a refinanced balloon payment shall be provided in writing by the creditor to the retail buyer upon the buyer's request. Applications for balloon contracts shall include a notice in at least 10 point bold type that the balloon contract applicant is entitled, upon request, to receive a written estimate of the monthly payment amount for a balloon payment refinancing in accordance with the creditor's then existing refinance programs prior to entering into a balloon contract.
VI. A sales finance company may charge an excess mileage fee associated with a motor vehicle that is returned to the lienholder pursuant to paragraph III of this section, provided that no such fee shall be charged when the odometer of the motor vehicle securing the balloon contract indicates the vehicle was driven less than the maximum mileage limit set forth in the balloon contract. Any excess mileage charges payable by the retail buyer shall be clearly set forth in the balloon contract.
VII. A lienholder may assess a fee for excess wear and tear associated with a motor vehicle returned pursuant to paragraph III of this section. Any charges for excess wear and tear payable by the retail buyer shall be clearly set forth in the balloon contract.
Source. 1997, 322:19. 2003, 129:14. 2008, 205:7, eff. Aug. 15, 2008.
Section 361-A:9
361-A:9 Repealed by 1997, 322:28, I, eff. June 23, 1997. –
Section 361-A:9-a
361-A:9-a Books and Records. –
I. A licensee shall keep and use business records in such form and at such location as the commissioner shall by rule determine. The records shall enable the commissioner to determine whether the licensee is complying with the provisions of this chapter, any rules adopted under it, and any other law, rule, or regulation applicable to the conduct of the business for which it is licensed under this chapter. The rules may contain provisions for records to be recorded, copied, or reproduced by any process which accurately reproduces or forms a durable medium for reproducing the original record or document, or in any other form or manner authorized by the commissioner. Nothing in this section shall be construed to permit any licensee to destroy original records or documents. Each licensee shall preserve all such business records for as long a period as the commissioner shall prescribe by rule.
II. If the commissioner or examiner finds any business records to be inadequate, or kept or posted in a manner not in accordance with generally accepted accounting principles, the commissioner may employ experts to reconstruct, rewrite, post, or balance them at the expense of the person being examined if such person has failed to maintain, complete, or correct such business records after the commissioner or examiner has given him or her written notice and a reasonable opportunity to do so.
Source. 2004, 139:10. 2008, 205:8, eff. Aug. 15, 2008.
Section 361-A:10
361-A:10 Repealed by 1997, 322:28, II, eff. June 23, 1997. –
Section 361-A:10-a
361-A:10-a Advertising. –
I. No person shall advertise, print, display, publish, distribute, or broadcast or permit to be advertised, printed, displayed, published, distributed, or broadcast in any manner whatsoever any statement or representation with regard to the rates, terms, or conditions for the lending of money under the provisions of this chapter which is false, misleading, or deceptive. Any reference to the amount of a loan shall refer to the original principal amount. Any statement so made of the amount of an installment, or the rate or amount of interest charges required for any loan, shall comply with the provisions of the federal Consumer Credit Protection Act, as amended (15 U.S.C. 1601 et seq.).
II. As part of an examination or investigation undertaken in accordance with this chapter, the banking department may review any advertisement described in paragraph I within 3 years of the date the advertisement is advertised, printed, displayed, published, distributed, or broadcast.
Source. 1995, 63:8. 2003, 129:11, eff. June 12, 2003. 2018, 196:2, eff. Aug. 7, 2018.
Section 361-A:10-b
361-A:10-b Sale Contingent on Financing Approval. –
Any retail seller who delivers a motor vehicle to a retail customer before the retail seller has obtained financing approval from a sales finance company shall provide a disclosure, containing the following language in a size equal to at least 10 point bold type, which must be signed by the retail buyer:
"The retail seller of the motor vehicle has not obtained financial approval for the terms contained in the retail installment contract from a sales finance company. If the retail seller obtains financial approval from a sales finance company under the terms of the retail installment contract, the sale shall be final and binding on the retail seller and the retail customer. If final approval of the terms of the retail installment contract cannot be obtained from a sales finance company, the retail installment contract shall be canceled. The retail seller shall return to the buyer any consideration received in the transaction, including, but not limited to, any motor vehicle traded in, any deposit, and any fees paid by the buyer. The buyer shall, upon being notified that the retail seller was unable to obtain financing approval, return the motor vehicle to the retail seller."
Source. 2004, 141:4, eff. July 23, 2004.
Section 361-A:10-c
361-A:10-c Lien Payoff on Motor Vehicles Accepted in Trade. –
I. When a person enters into a retail transaction where a consumer trades in or sells a vehicle that is subject to a lien, the person shall, within 21 calendar days of the date of sale, remit payment to the lien holder to pay off the lien on the traded-in or sold motor vehicle, unless the underlying contract has been rescinded before expiration of 21 calendar days.
II. In this section, the term "date of sale" shall be the date the parties entered into the transaction as evidenced by the date written in the contract executed by the parties, or the date the person took possession of the traded-in or sold vehicle. In the event the date of the contract differs from the date the person took possession of the traded-in vehicle, the "date of sale" shall be the date the person took possession of the traded-in vehicle.
Source. 2008, 83:1, eff. Jan. 1, 2009.
Section 361-A:11
361-A:11 Penalties. –
I. Any person who shall violate any provisions of this chapter, or engage in the business of a sales finance company in this state without a license therefor as provided herein, shall be guilty of a misdemeanor if a natural person, or guilty of a felony if any other person.
I-a. Any person who willfully violates any provisions of RSA 361-A:3-b, I or II or a cease and desist order or injunction issued pursuant to RSA 361-A:3-a shall be guilty of a class B felony. Each of the acts specified shall constitute a separate offense and a prosecution or conviction for any one of such offenses shall not bar prosecution or conviction of any other offense.
II. [Repealed.]
III. Any person violating the provisions of RSA 361-A:7 or RSA 361-A:8 or engaging in the business of a sales finance company without a license if a license is required under this chapter shall be barred from recovering any finance charge, delinquency, or collection charge on the contract. Where no finance charge is payable under the terms of the contract, a person engaging in the business of a sales finance company without a license shall be barred from recovering any amount in excess of the wholesale market value of the vehicle, if the vehicle was purchased by the seller at a wholesale auction or other wholesale outlet, or the trade-in value of the vehicle if the seller acquired the vehicle in trade. Such value shall be that quoted for New Hampshire or the New England region in a value quotation publication generally recognized by the motor vehicle industry and as specified by the commissioner in rules adopted pursuant to RSA 541-A.
IV. Any person, other than the consumer, who holds or is a party to, in any manner, a retail installment contract that is not in compliance with this chapter may, upon notice and opportunity for hearing, be subject to penalty under this chapter.
V. Any person who knowingly violates any rule or order of the commissioner may, upon notice and opportunity for hearing, except where another penalty is expressly provided, be subject to suspension or revocation of any registration or license, or imposition of an administrative fine not to exceed $2,500 for each violation in lieu of or in addition to such suspension or revocation as may be applicable under this title for violation of the provision to which a rule or order relates. Each of the acts specified shall constitute a separate violation.
VI. Any person who negligently violates any rule or order of the commissioner may, upon notice and opportunity for hearing, except where another penalty is expressly provided, be subject to suspension, revocation, or denial of any registration or license, including the forfeiture of any application fee, or imposition of an administrative fine not to exceed $1,500 for each violation in lieu of or in addition to such suspension or revocation as may be applicable under this title for violation of the provision to which a rule or order relates. Each of the acts specified shall constitute a separate violation.
VII. Any person who, either knowingly or negligently, violates any provision of this chapter may, upon notice and opportunity for hearing, and in addition to any such other penalty provided for by law, be subject to such suspension, revocation, or denial of any registration or license, including forfeiture of any application fee, or imposition of an administrative fine not to exceed $2,500, or both. Each of the acts specified shall constitute a separate violation, and each such administrative action or fine may be imposed in addition to any criminal or civil penalties imposed.
VIII. Every person who directly or indirectly controls a person liable under this section, every partner, principal executive officer or director of such person, every person occupying a similar status or performing a similar function, every employee of such person who materially aids in the act constituting the violation, and every licensee or person acting as a common law agent who materially aids in the acts constituting the violation, either knowingly or negligently, may, upon notice and opportunity for hearing, and in addition to any other penalty provided for by law, be subject to such suspension, revocation, or denial of any registration or license, including the forfeiture of any application fee, or an administrative fine not to exceed $2,500, or both. Each of the acts specified shall constitute a separate violation, and such administrative action or fine may be imposed in addition to any criminal or civil penalties imposed. No person shall be liable under this paragraph who shall sustain the burden of proof that such person did not know, and in the exercise of reasonable care could not have known, of the existence of facts by reason of which the liability is alleged to exist.
IX. The attorney general on the commissioner's behalf, may, with or without prior administrative action by the commissioner, bring an action against any person in any superior court in this state to enjoin the acts or practices and to enforce compliance with this chapter or any rule or order under this chapter. Upon a proper showing, a permanent or temporary injunction, bar, restraining order, or writ of mandamus shall be granted and a receiver may be appointed for the defendant or the defendant's assets. The court shall not require the commissioner or attorney general to post a bond. The court shall have the power to enforce obedience to such injunction, in addition to all of the court's customary powers, by a fine not exceeding $10,000 or by imprisonment, or both. In a proceeding in superior court under this paragraph where the state prevails, the commissioner and the attorney general shall be entitled to recover all costs and expenses of investigation, and the court shall include the costs in its final judgment.
Source. 1961, 193:1. 1973, 529:86. 1992, 116:2. 1995, 63:9. 1997, 322:20. 2000, 172:1, 2. 2003, 129:12, 15, II. 2008, 205:9, 10, eff. Aug. 15, 2008.
Section 361-A:11-a
361-A:11-a Applicability. –
Persons subject to or licensed under this chapter shall abide by applicable federal laws and regulations, the laws and rules of this state, and the orders of the commissioner. Any violation of such law, regulation, or rule is a violation of this chapter.
Source. 2004, 139:11, eff. July 23, 2004.
Section 361-A:12
361-A:12 Waiver. –
Any waiver of the provisions of this chapter shall be unenforceable and void.
Source. 1961, 193:1, eff. Oct. 1, 1961.
Section 361-A:13
361-A:13 Records and Filings. –
I. A document is filed when it is received by the commissioner. Examination expenses, fines, penalties, and other moneys obliged to be paid to the department shall be paid within 14 days of receipt of notice by the licensee or other person or at such later time determined by the commissioner. If any filing deadline date falls on a weekend or on a New Hampshire state or federal legal holiday, the due date shall be automatically extended to the next business day following such weekend or holiday.
II. Electronic filings, when received by the commissioner, are deemed filed, and are prima facie evidence that a filing has been duly authorized and made by the signatory on the application or document, are admissible in any civil or administrative proceeding under this chapter, and are admissible in evidence in accordance with the rules of superior court in any action brought by the attorney general under this chapter.
III. A licensee may maintain its records in electronic format if, upon request, the licensee provides the commissioner with:
(a) A full explanation of the programming of any data storage or communications systems in use; and
(b) Information from any books, records, electronic data processing systems, computers or any other information storage system in the form requested by the commissioner.
Source. 2003, 129:13, eff. June 12, 2003. 2009, 204:14, eff. Sept. 13, 2009.