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Code of Virginia
Title 6.2. Financial Institutions and Services
Chapter 3. Interest and Usury
8/10/2022

Chapter 3. Interest and Usury.

Article 1. Definitions.

§ 6.2-300. Definitions.

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

"Bank" means any national bank, any bank organized under Chapter 8 (§ 6.2-800 et seq.), or any bank incorporated and organized under the laws of another state.

"Credit union" means any credit union organized under Chapter 13 (§ 6.2-1300 et seq.) or any credit union incorporated and organized under the laws of another state. "Credit union" shall not include any federal credit union.

"First deed of trust" or "first mortgage" includes all deeds of trust and mortgages, and amendments thereto, that are made by the same grantor or mortgagor, secure notes held by the same holder, convey substantially the same real estate, and are superior to all other deeds of trust or mortgages on the real estate.

"Grantor" or "mortgagor" includes an owner of real estate, and spouse, who has assumed responsibility for the obligation secured by a mortgage or deed of trust encumbering the real estate.

"Loan" means a loan or forbearance of money.

"Open-end credit" or "open-end credit plan" means consumer credit extended by a creditor under a plan in which: (i) the creditor reasonably contemplates repeated transactions; (ii) the creditor may impose a finance charge from time to time on an outstanding unpaid balance; and (iii) the amount of credit that may be extended to the consumer during the term of the plan, up to any limit set by the creditor, is generally made available to the extent that any outstanding balance is repaid.

"Savings institution" means any savings institution, as defined in § 6.2-1100, incorporated and organized under the laws of the United States, the Commonwealth, or another state.

"Subordinate mortgage or deed of trust" means a mortgage or deed of trust that is subject to a prior mortgage or deed of trust in existence at the time of the making of the loan secured by such subordinate mortgage or deed of trust.

1987, c. 622, §§ 6.1-330.49, 6.1-330.69, 6.1-330.71; 1991, c. 157; 1996, c. 243; 2010, c. 794.

Article 2. Legal, Judgment, and Contract Rates of Interest.

§ 6.2-301. Legal rate of interest; when legal rate implied.

A. The legal rate of interest shall be an annual rate of six percent.

B. Except as provided in subsection (b) of § 8.3A-112 and § 6.2-302, the legal rate of interest shall be implied when there is an obligation to pay interest and no express contract to pay interest at a specified rate.

C. The seller or provider of goods sold or services provided on an open account shall be entitled to, and may collect, interest at the legal rate upon the unpaid balance if (i) there exists no written agreement for closed-end credit under § 6.2-311 or open-end credit plan under § 6.2-312 and (ii) the purchaser or recipient of the goods or services fails to make payment in full within 60 days after mailing or presentation of a billing statement or invoice. Such interest shall begin to accrue on the day following such 60-day period.

1987, c. 622, § 6.1-330.53; 1991, c. 375, § 6.1-330.77:1; 2004, c. 646; 2010, c. 794.

§ 6.2-302. Judgment rate of interest.

A. The judgment rate of interest shall be an annual rate of six percent, except that a money judgment entered in an action arising from a contract shall carry interest at the rate lawfully charged on such contract, or at six percent annually, whichever is higher.

B. If the contract or other instrument does not fix an interest rate, the court shall apply the judgment rate of six percent to calculate prejudgment interest pursuant to § 8.01-382 and to calculate post-judgment interest.

C. The rate of interest for a judgment shall be the judgment rate of interest in effect at the time of entry of the judgment on any amounts for which judgment is entered and shall not be affected by any subsequent changes to the rate of interest stated in this section.

1987, cc. 622, 623, 630, § 6.1-330.54; 1991, c. 508; 2004, c. 646; 2005, c. 455; 2010, cc. 550, 794.

§ 6.2-303. Contracts for more than legal rate of interest.

A. Except as otherwise permitted by law, no contract shall be made for the payment of interest on a loan at a rate that exceeds 12 percent per year.

B. Laws that permit payment of interest at a rate that exceeds 12 percent per year are set out, without limitation, in:

1. Article 4 (§ 6.2-309 et seq.) of this chapter;

2. Chapter 15 (§ 6.2-1500 et seq.), relating to powers of consumer finance companies;

3. Chapter 18 (§ 6.2-1800 et seq.), relating to short-term loans;

4. Chapter 22 (§ 6.2-2200 et seq.), relating to interest chargeable by motor vehicle title lenders;

5. § 36-55.31, relating to loans by the Virginia Housing Development Authority;

6. § 38.2-1806, relating to interest chargeable by insurance agents;

7. Chapter 47 (§ 38.2-4700 et seq.) of Title 38.2, relating to interest chargeable by premium finance companies;

8. § 54.1-4008, relating to interest chargeable by pawnbrokers; and

9. § 58.1-3018, relating to interest and origination fees payable under third-party tax payment agreements.

C. In the case of any loan upon which a person is not permitted to plead usury, interest and other charges may be imposed and collected as agreed by the parties.

D. Any provision of this chapter that provides that a loan or extension of credit may be enforced as agreed in the contract of indebtedness, shall not be construed to preclude the charging or collecting of other loan fees and charges permitted by law, in addition to the stated interest rate. Such other loan fees and charges need not be included in the rate of interest stated in the contract of indebtedness.

E. The provisions of subsection A shall apply to any person who seeks to evade its application by any device, subterfuge, or pretense whatsoever, including:

1. The loan, forbearance, use, or sale of (i) credit, as guarantor, surety, endorser, comaker, or otherwise; (ii) money; (iii) goods; or (iv) things in action;

2. The use of collateral or related sales or purchases of goods or services, or agreements to sell or purchase, whether real or pretended; receiving or charging compensation for goods or services, whether or not sold, delivered, or provided; and

3. The real or pretended negotiation, arrangement, or procurement of a loan through any use or activity of a third person, whether real or fictitious.

F. Any contract made in violation of this section is void and no person shall have the right to collect, receive, or retain any principal, interest, fees, or other charges in connection with the contract.

1987, c. 622, § 6.1-330.55; 1997, c. 180; 2002, c. 897; 2010, cc. 477, 794; 2020, cc. 1215, 1258.

Article 3. Usury.

§ 6.2-304. Plea of usury; judgment.

Any borrower may plead in general terms that the contract on which the action is brought was for the payment of interest greater than is allowed by statute. If the court determines that the contract is usurious, judgment shall be rendered only for the principal sum.

1987, c. 622, § 6.1-330.56; 2010, c. 794.

§ 6.2-305. Recovery of twice total usurious interest paid; limitation of action; injunction to prevent sale of property pending action; effect of errors in computation.

A. If interest in excess of that permitted by an applicable statute is paid upon any loan, the person paying may bring an action within two years from the first to occur of: (i) the date of the last scheduled loan payment or (ii) the date of payment of the loan in full, to recover from the person taking or receiving such payments:

1. The total amount of the interest paid to such person in excess of that permitted by the applicable statute;

2. Twice the total amount of interest paid to such person during the two years immediately preceding the date of the filing of the action; and

3. Court costs and reasonable attorney fees.

B. If the sale of property in which an interest has been conveyed to secure the payment of the debt is scheduled or anticipated, an injunction may be granted to prevent such sale pending the completion of an action brought pursuant to subsection A.

C. Any creditor who proves that interest or other charges in excess of those permitted by law were imposed or collected as a result of a bona fide error in computation or similar mistake shall not be liable for the penalties prescribed in this section. In such event, the creditor shall only be liable to return to the borrower the amount of interest or other charges collected in excess of the amount permitted by applicable statute.

1987, c. 622, § 6.1-330.57; 2010, c. 794.

§ 6.2-306. Waiver of rights violative of public policy.

A. Any agreement or contract in which the borrower waives the benefits of this chapter or releases any rights he may have acquired under this chapter shall be deemed to be against public policy and void.

B. The provisions of subsection A shall not apply to a waiver of benefits or release of rights made subsequent to a loan as part of a settlement of potential or pending claims by a borrower involving such loan.

1987, c. 622, § 6.1-330.58; 2010, c. 794.

§ 6.2-307. Assertion of defenses or claims by borrowers; effect of assignment.

As to any loan to which the provisions of §§ 6.2-327 and 6.2-328 are applicable, the borrower may assert any defense or claim he may have under §§ 6.2-304 and 6.2-305 against any assignee or transferee of the contract of indebtedness.

1987, c. 622, § 6.1-330.59; 2010, c. 794.

§ 6.2-308. Entities not permitted to plead usury.

A. No (i) corporation, (ii) partnership that is required to file a certificate pursuant to Chapter 2.1 (§ 50-73.1 et seq.) of Title 50 or was required to file a certificate pursuant to former Chapter 2 (§ 50-44 et seq.) or Chapter 3 (§ 50-74 et seq.) of Title 50 or that is formed under laws other than those of the Commonwealth, (iii) limited liability company, (iv) business trust, or (v) joint venture organized for the purpose of holding, developing, and managing real estate for profit, shall, by way of defense or otherwise, avail itself of any of the provisions of this chapter or any other statutory or case law relating to usury or compounding of interest to avoid or defeat the payment of any interest or any other sum that it has contracted to pay.

B. Nothing contained in this chapter or any other statutory or case law relating to usury or compounding of interest shall be construed to prevent the recovery of interest or any other sum that an entity described in subsection A has contracted to pay, regardless of whether it is more than the contract rate of interest and the fact appears on the face of the contract.

1987, c. 622, § 6.1-330.76; 1988, c. 765; 1993, c. 113; 2010, c. 794.

Article 4. Loans Exempt from Limit on Contract Rate of Interest.

§ 6.2-309. Charges by banks and savings institutions on installment loans.

Notwithstanding any statutory or case law, a bank or savings institution making a loan payable in installments may impose finance charges and other charges and fees at such rates and in such amounts and manner as the borrower has agreed.

1987, c. 622, § 6.1-330.60; 1996, c. 242; 1997, c. 128; 1999, c. 610; 2001, c. 743; 2010, c. 794.

§ 6.2-310. Rate of interest chargeable by state banks and savings institutions.

In addition to the permissible interest rates and charges specifically granted to banks and savings institutions by this title, state banks and savings institutions may take, receive, reserve, and charge on any loan, any rate of interest, finance charge, or other loan charge permitted to any other lender under the laws of the Commonwealth, other than those rates or charges permitted to consumer finance companies under § 6.2-1520.

1980, c. 336, § 6.1-5.3; 1981, c. 93, § 6.1-195.3:1; 1985, c. 425, § 6.1-194.6; 1987, c. 556; 1988, c. 2; 2010, c. 794.

§ 6.2-311. Closed-end installment loans by sellers of goods or services.

A. Any seller of goods or services who extends credit under a closed-end installment credit plan or arrangement may impose finance charges at such rate or rates as the seller and the purchaser have agreed. Deferrals and extensions of the time for payment, if allowed by a seller of goods or services who extends credit under a closed-end installment credit plan or his assignee, may be subject to a finance charge if agreed to in the original contract or at the time of the renewal or extension. No additional finance charge shall be made for the extension of credit under such a plan or arrangement. If the total finance charge on the transaction is precomputed according to the actuarial method, the finance charge shall be calculated on the assumption that all scheduled payments will be made when due. The balance on which such finance charge may be imposed may include the deferred portion of the sales price, costs and charges incidental to the transaction, including (i) any insurance premium financed in connection therewith and (ii) the amount actually paid or to be paid by the seller to discharge a security interest or lien on the property traded in. The payment by a lessor to discharge a security interest or lien on the property traded in may be included in the gross capitalized cost of the goods leased and, for purposes of this chapter and Chapter 6 (§ 55.1-600 et seq.) of Title 55.1, shall not constitute a loan.

B. The debtor shall have the right to prepay in full on precomputed transactions and receive a rebate of unearned finance charge determined in accordance with the Rule of 78, as illustrated in § 6.2-403, or other method elected by the seller under which the finance charge imposed does not exceed the amount that results from application of the Rule of 78 on extensions of credit with an initial maturity of 61 months or less. On extensions of credit with an initial maturity of more than 61 months, the debtor shall receive a rebate computed under a method at least as favorable to the debtor as the actuarial method. The seller may also condition such rebate upon receiving a minimum of $25 in finance charges. This amount, to the extent not earned, may be withheld from the rebate required hereunder.

C. In connection with such a credit plan, the seller may also:

1. Impose a late charge pursuant to § 6.2-400; and

2. Charge and collect a document fee as may be agreed upon by the seller and purchaser in connection with such credit plan. The document fee shall (i) be for the preparation, handling, and processing of documents relating to the goods or services and to the closing of the transaction and (ii) not be considered a finance charge for the purposes of this chapter.

D. Premiums for credit life insurance and credit accident and health insurance purchased by the debtor shall not be construed as an additional charge for the extension of credit if such insurance coverage is purchased voluntarily by the debtor. Premiums for property insurance on the goods purchased or leased, including vendor's single interest insurance on such goods, shall not be construed as additional charges for the extension of credit if a clear and conspicuous statement in writing is furnished by the seller or lessor to the buyer or lessee setting forth the cost of the insurance if obtained from or through the seller or lessor and stating that the buyer or lessee may choose the person through which the insurance is to be obtained.

1987, c. 622, § 6.1-330.77; 1988, c. 145; 1990, c. 338; 1999, cc. 62, 373; 2010, c. 794.

§ 6.2-312. Open-end credit plans.

A. The provisions of this section shall apply to any person that makes, arranges, or negotiates a loan or otherwise extends credit under an open-end credit plan, whether or not the person maintains a physical presence in the Commonwealth. However, the provisions of this section shall not apply to any bank, savings institution, or credit union as such terms are defined in § 6.2-300.

B. Notwithstanding any provision of this chapter other than § 6.2-327, and except as provided in subsections D, E, and F, a seller or lender engaged in extending credit under an open-end credit plan may impose, on credit extended under the plan, finance charges and other charges and fees at such rates and in such amounts and manner as may be agreed upon by the creditor and the obligor, if under the plan a finance charge is imposed upon the obligor if payment in full of the unpaid balance is not received at the place designated by the creditor prior to the next billing date, which shall be at least 25 days later than the prior billing date.

C. Notwithstanding the provisions of § 6.2-327 and subject to the provisions of § 8.9A-204.1, any loan made under this section may be secured in whole or in part by a subordinate mortgage or deed of trust on residential real estate improved by the construction thereon of housing consisting of one- to four-family dwelling units.

D. The following persons are prohibited from engaging in the extension of credit under an open-end credit plan described in this section: (i) any person licensed under Chapter 18 (§ 6.2-1800 et seq.), any person affiliated through common ownership with such licensed person, and any person that is a subsidiary of such licensed person; (ii) any person licensed under Chapter 22 (§ 6.2-2200 et seq.), any person affiliated through common ownership with such licensed person, and any person that is a subsidiary of such licensed person; and (iii) any person conducting business at any office, suite, room, or place of business where a person described in clause (i) or (ii) is conducting business.

E. No person shall make a loan or otherwise extend credit under an open-end credit plan or any other lending arrangement that is secured by a non-purchase money security interest in a motor vehicle, as such term is defined in § 6.2-2200, unless such loan or extension of credit is made in accordance with, or is exempt from, the provisions of Chapter 22 (§ 6.2-2200 et seq.).

F. A seller or lender engaged in extending credit under an open-end credit plan to a resident of the Commonwealth or to any individual in the Commonwealth shall not charge, collect, or receive, directly or indirectly, credit insurance premiums, charges for any ancillary product sold, charges for negotiating forms of loan proceeds or refunds other than cash, charges for brokering or obtaining an extension of credit, or any fees, interest, or charges in connection with credit extended under the plan, other than (i) interest at a simple annual rate not to exceed 36 percent and (ii) a participation fee not to exceed $50 per year. Any extension of credit made in violation of this subsection is void and no person shall have the right to collect, receive, or retain any principal, interest, fees, or other charges in connection with the extension of credit.

G. Any violation of the provisions of this section shall constitute a prohibited practice in accordance with § 59.1-200 and shall be subject to any and all of the enforcement provisions of the Virginia Consumer Protection Act (§ 59.1-196 et seq.).

H. A third party shall not engage in the extension of credit under an open-end credit plan described in this section.

1987, cc. 622, 639, 714, § 6.1-330.78; 1992, Sp. Sess., c. 4; 1997, c. 112; 2009, cc. 784, 860; 2010, cc. 477, 794; 2020, cc. 1215, 1258.

§ 6.2-313. Open-end credit extended by banks or savings institutions.

A. Notwithstanding any statutory or case law, any bank or savings institution may impose finance charges and other charges and fees at such rates and in such amounts and manner as may be agreed by the borrower under an open-end credit plan.

B. In the event of the extension of credit by a bank or savings institution hereunder to be effected by the use of a credit card for the purchase of merchandise or services, no finance charge shall be imposed upon the cardholder or borrower on such extension of credit if payment in full of the unpaid balance owing for all extensions of credit under the open-end credit plan is received at the place designated by the creditor prior to the payment due date, which shall be at least 25 days later than the billing date.

1987, cc. 622, 639, 714, § 6.1-330.63; 1992, Sp. Sess., c. 4; 1997, c. 112; 2005, c. 670; 2010, c. 794; 2015, cc. 453, 454.

§ 6.2-314. Motor vehicle purchase loans by subsidiaries and affiliates of banks and savings institutions.

Notwithstanding any statutory or case law, a subsidiary or affiliate of a bank or savings institution that is not a licensee under the provisions of Chapter 15 (§ 6.2-1500 et seq.) may impose finance charges and other charges and fees at such rates and in such amounts and manner as the borrower has agreed on loans payable in installments for the purpose of financing the purchase of a motor vehicle.

1987, c. 622, § 6.1-330.60; 1996, c. 242; 1997, c. 128; 1999, c. 610; 2001, c. 743; 2010, c. 794.

§ 6.2-315. Loans by certain financial institutions or brokers payable on demand or having a term up to one year.

Any bank, savings institution, broker duly licensed to transact business as a stockbroker, or broker-dealer registered with the Securities and Exchange Commission or the Commodity Futures Trading Commission, may loan money or discount bonds, bills, notes or other paper, whether payable on demand or for periods up to one year. Such a loan or discounting may be lawfully enforced as agreed in the contract of indebtedness. An interest rate charged in advance upon the entire amount of the loan or discount shall be lawful.

1987, c. 622, § 6.1-330.62; 2010, c. 794.

§ 6.2-316. Loans of $5,000 or more made by certain financial institutions.

No person shall, by way of defense or otherwise, avail himself of the provisions of this chapter or any other section relating to usury to avoid or defeat the payment of interest, or any other sum, upon a loan made to a person by a bank, savings institution, industrial loan association, or credit union, if the initial principal amount of the loan is $5,000 or more.

1987, c. 622, § 6.1-330.61; 2010, c. 794.

§ 6.2-317. Loans of $5,000 or more for business or investment purposes.

A. For purposes of this section:

1. A loan shall be deemed to be for business or investment purposes if it is not for personal, family, or household purposes; and

2. Personal, family, or household purposes do not include a passive or active investment.

B. No person shall, by way of defense or otherwise, avail himself of the provisions of this chapter, or any other statutory or case law relating to usury or compounding of interest, to avoid or defeat the payment of interest, or any other sum, in connection with a loan made to a person for business or investment purposes, if the initial amount of the loan is $5,000 or more.

1987, c. 622, § 6.1-330.75; 2010, c. 794.

§ 6.2-318. Loans by credit unions.

A. As used in this section, "average daily balance" means, for any billing period, that amount which is the sum of the actual amounts outstanding each day during the billing period divided by the number of days in the billing period.

B. Notwithstanding any other statute or provision relating to interest or usury, any credit union may charge interest as agreed by the borrower provided such interest is not charged in advance.

C. Any open-end credit plan offered by a credit union shall provide:

1. For computation of any finance charges by application of a rate, at the option of the credit union, to:

a. The average daily balance for the period ending on the billing date;

b. The balance existing on the billing date of the month; or

c. Any other balance which does not result in the credit union charging or receiving any sum in excess of what would be charged or received under subdivision a or b;

2. That no finance charge shall be imposed unless the bill is mailed not later than eight days, excluding Saturdays, Sundays and holidays, after the billing date, except that such time limitation shall not apply in any case where the credit union has been prevented, delayed, or hindered in mailing or delivering the bill within such time period because of an act of God, war, civil disorder, natural disaster, strike, or other excusable or justifiable cause; and

3. That in the event of the extension of open-end credit by a credit union to be effected by the use of a credit card for the purchase of merchandise or services, no finance charge shall be imposed upon the member or cardholder on such extension of credit if payment in full of the unpaid balance owing for extensions of credit for merchandise or services is received at the place designated by the credit union prior to the payment due date, which shall be at least 25 days later than the billing date.

D. Notwithstanding any provision of this chapter other than § 6.2-327 and subsection C, a credit union engaged in extending credit under an open-end credit plan may impose, on credit extended under the plan, finance charges and other charges and fees at such rates and in such amounts and manner as may be agreed upon by the credit union and the obligor, if under the plan a finance charge is imposed upon the obligor.

1987, c. 622, § 6.1-330.64; 2006, c. 753; 2010, c. 794; 2015, cc. 453, 454.

§ 6.2-319. Loans by pension plans to participants.

A. As used in this section, "pension plan" includes an "employee pension benefit plan" or "pension plan" as defined in § 3(2) of the federal Employee Retirement Income Security Act of 1974 (P.L. 93-406, 88 Stat. 829).

B. Loans by a pension plan to an individual participating in the pension plan shall be lawfully enforced as agreed in the contract of indebtedness. No such participating individual, by way of defense or otherwise, shall avail himself of the provisions of this chapter, or any other law relating to interest or usury, to avoid or defeat the payment of interest or any other sum on any loan made by the pension plan. Nothing contained in any law relating to interest or usury shall be construed to prevent the recovery of such interest or other sum though it is more than otherwise lawful interest and though that fact appears on the face of the contract.

1987, c. 622, § 6.1-330.67; 2010, c. 794.

§ 6.2-320. Loans by industrial loan associations.

A. Notwithstanding any statutory or case law relating to interest or usury, loans made by an industrial loan association payable in weekly, monthly, or other periodic installments may be enforced as agreed in the contract of indebtedness. In addition, such association may charge or collect in advance from the borrower on such loans a loan fee not exceeding two percent of the principal amount of the loan. An interest rate charged in advance upon the entire amount of the loan or pursuant to a written modification agreement shall be lawful.

B. An industrial loan association may charge interest at an annual rate not exceeding 18 percent on loans payable on demand or in a single payment. In addition, such association may charge or collect in advance from the borrower on such loans a loan fee not exceeding two percent of the principal amount of the loan.

1987, c. 622, § 6.1-330.68; 2010, c. 794.

§ 6.2-321. Loans pursuant to stock option financing programs.

A. As used in this section, "stock option financing program loan" means a loan pursuant to which a lender finances the option holder's exercise of the option to purchase stock, which exercise is financed through such means as purchasing the stock on margin, selling sufficient shares of the stock to cover the total exercise cost, or selling the full quantity of stock to cover the total exercise cost.

B. No person shall, by way of defense or otherwise, avail himself of the provisions of this chapter, or any other statutory or case law relating to usury or compounding of interest, to avoid or defeat the payment of interest, or any other sum, in connection with a loan made to a person pursuant to a stock option financing program loan.

2003, c. 439, § 6.1-330.78:1; 2010, c. 794.

§ 6.2-322. Extensions of credit on pledged securities.

A broker-dealer licensed by the Commission and registered with the Securities Exchange Commission who extends credit to a customer on pledged securities as permitted under the provisions of the Securities Exchange Act of 1934, may charge the customer, on his debit balances that are payable on demand, interest at a annual rate that does not exceed one and three-quarters percent above the higher of:

1. The interest rate charged such broker-dealer by a bank doing business in the Commonwealth on loans collateralized by securities; or

2. The interest rate charged such broker-dealer by a bank doing business in the Commonwealth on loans for business purposes.

1987, c. 622, § 6.1-330.65; 2010, c. 794.

§ 6.2-323. Educational loans by banks or savings institutions.

Notwithstanding any statutory or case law relating to interest or usury, including the deferral and capitalization of interest, any loan made by a bank or savings institution to defray educational expenses, including tuition, fees, books, supplies, room, board, and personal expenses, shall be lawfully enforced as agreed in the contract of indebtedness.

1987, c. 622, § 6.1-330.60; 1996, c. 242; 1997, c. 128; 1999, c. 610; 2001, c. 743; 2010, c. 794.

§ 6.2-324. Educational loans by private institution of higher education.

A. As used in this section, "private institution of higher education" means an accredited nonprofit private institution of higher education in the Commonwealth whose primary purpose is to provide collegiate or graduate education.

B. Loans made by a private institution of higher education to defray educational expenses of its students, including tuition, fees, books, supplies, room, board, and personal expenses, may be enforced as agreed in the contract of indebtedness.

1987, c. 622, § 6.1-330.66; 2010, c. 794.

§ 6.2-325. Certain loans secured by first deed of trust or mortgage.

A. As used in this section, "real estate" includes a leasehold estate of not less than 25 years.

B. Notwithstanding the provisions of any law relating to interest or usury, contracts made for the loan of money, secured or to be secured by a first deed of trust or first mortgage on real estate, or by a first priority security interest in the stock of a residential cooperative housing corporation, may be enforced as agreed in the contract of indebtedness or other agreement signed by the borrower.

C. For the purpose of this section, an interest rate which varies in accordance with any exterior standard, or which cannot be ascertained from the contract without reference to any exterior circumstances or documents, shall be enforceable as agreed in the contract of indebtedness or other signed agreement.

D. Disclosure of charges in a disclosure given to the borrower pursuant to federal disclosure laws or regulations and acceptance of the loan proceeds by the borrower shall be deemed an agreement signed by the borrower within the meaning of this section.

1987, c. 622, § 6.1-330.69; 2010, c. 794.

§ 6.2-326. Fees and charges in connection with loans by real estate lenders.

A. A lender engaged in making real estate mortgage or deed of trust loans, other than loans subject to the provisions of §§ 6.2-327 and 6.2-328, may:

1. Charge or collect in advance from the borrower a loan fee as agreed between the parties; and

2. Require the borrower to pay the reasonable and necessary charges in connection with making the loan, including the cost of title examination, title insurance, recording and filing fees, taxes, insurance, including mortgage guaranty insurance, appraisals, credit reports, surveys, drawing of papers, and closing the loan.

B. The fees and charges permitted by this section and other sections of this chapter are in addition to those permitted by § 6.2-325 and may be added to the principal of the loan, and shall not be considered in determining whether a loan contract is usurious.

1987, c. 622, § 6.1-330.70; 1990, c. 3; 2010, c. 794.

§ 6.2-327. Certain loans secured by a subordinate deed of trust or mortgage.

A. As used in this section:

"Exempt subordinate mortgage lender" means (i) a bank, savings institution, industrial loan association, or credit union or (ii) a seller in a real estate sales transaction who takes a subordinate mortgage or deed of trust on such real estate.

"New money" means money advanced in excess of the outstanding principal balance at the time a new advance is made.

"Real estate" includes a leasehold estate of not less than 25 years.

"Residential real estate" means real estate improved by the construction thereon of housing consisting of one- to four-family dwelling units.

B. An add-on interest loan shall be subject to the following provisions:

1. Any person may charge add-on interest that results in an annual yield of not more than 18 percent upon loans secured in whole or in part by a subordinate mortgage or deed of trust on residential real estate;

2. An add-on interest loan may be made only under this subsection and shall not exceed a period of five years and one month; and

3. The lender may also impose a loan fee not exceeding two percent of the principal amount of the loan provided that such loan fee shall not be imposed more often than once each 18 months except to the extent that new money is advanced within such 18-month period by a renewal or additional loan. New money shall be money advanced in excess of the outstanding principal balance at the time such new advance is made. These provisions shall apply whether such loan fee is payable directly to the lender or to a third party in connection with such loan.

C. No charge, other than actual costs documented to the applicant and expended for a credit report and an appraisal of the real estate conducted in connection with the loan application, may be made if a loan secured by a subordinate mortgage or deed of trust is not made. Such charge:

1. Shall not exceed one percent of the amount of the loan applied for; but in no event shall such charge exceed $50 or one-half of such costs, whichever is less; and

2. May be made only if the lender commits to make the loan. Such commitment shall be in writing and signed by the lender or a person who the lender has authorized to execute such documents.

D. Any loan secured by a subordinate mortgage or deed of trust on residential real estate upon which the interest is charged at an annual interest rate on the unpaid balance thereof shall be subject to the following provisions:

1. Such a loan may be lawfully enforced at the annual interest rate stated in the contract of indebtedness on the principal amount of the loan. Such annual interest rate may vary in accordance with an exterior standard;

2. In addition to the annual interest rate permitted by subdivision 1, the lender may charge the borrower a loan fee not exceeding five percent of the principal amount of the loan, provided that such loan fee shall not be imposed more often than once each 18 months except to the extent that new money is advanced within such 18-month period by a renewal or additional loan. Such loan fee may only be reimposed by the lender upon a borrower in connection with the refinancing of a loan made pursuant to this subsection; and

3. The lender may charge the borrower with the actual costs of the loan as permitted by § 6.2-328.

E. The rates, charges and other provisions permitted or required by this section or by § 6.2-328 shall apply to all loans secured by a subordinate mortgage or deed of trust, including, without limitation, (i) single maturity loans, (ii) amortizing loans, and (iii) loans secured by a credit line deed of trust as permitted by § 55.1-318.

F. Except for the loan fee permitted in this section, no discount, initial interest, points or charges by any other name may be collected, charged or added to a loan secured by a subordinate mortgage or deed of trust upon residential real estate.

G. The provisions of this section shall not apply to any loan by an exempt subordinate mortgage lender.

H. For the purpose of this section, an interest rate that varies in accordance with any exterior standard, or that cannot be ascertained from the contract without reference to any exterior circumstances or documents, shall be enforceable as agreed in the contract of indebtedness or other signed agreement.

I. The borrower under any loan to which the provisions of this section apply may assert any defense or claim he may have under §§ 6.2-304 and 6.2-305 against any assignee or transferee of the contract of indebtedness.

1987, c. 622, §§ 6.1-330.59, 6.1-330.69, 6.1-330.71; 1991, c. 157; 1996, c. 243; 2010, c. 794.

§ 6.2-328. Charges allowed on loan secured by subordinate mortgage.

A. Any lender making a loan secured by a subordinate mortgage or deed of trust may require the borrower to pay, in addition to the loan fee and interest permitted by § 6.2-327, the actual cost of a credit report, title examination, title insurance, mortgage guaranty insurance, recording fees, surveys, attorney fees, appraisal fees, and a fee to determine if the property securing the loan is located in a special flood hazard area. No other charges of any kind shall be imposed on or be payable by the borrower either to the lender or any other party in connection with such loan other than:

1. A fee charged by the settlement agent as defined in § 55.1-1000;

2. Late charges in the amount specified in § 6.2-400 and a prepayment penalty permitted under § 6.2-423 that are contracted for; and

3. Upon default, court costs, attorney fees, trustee's commission, and other expenses of collection to which the borrower may be subject as otherwise permitted by law.

B. Broker's or finder's fees may be paid by the lender from the loan fee or interest permitted under § 6.2-327. A broker's fee, finder's fee, or commission not to exceed five percent of the principal amount of the loan may be paid by the borrower if the total of the loan fee permitted under § 6.2-327 and the broker's fee, finder's fee, or commission does not exceed five percent of the principal amount of the loan.

C. The premium for any insurance required or provided pursuant to § 6.2-411 shall not be considered a charge imposed on or payable by the borrower in connection with the loan.

D. No charge may be imposed or collected, except as permitted by § 6.2-327, if the loan is not made.

E. This section shall not apply to any loan made by (i) a bank, savings institution, industrial loan association, or credit union or (ii) a seller in a real estate sales transaction who takes a subordinate mortgage or deed of trust on such real estate.

F. The borrower under any loan to which the provisions of this section apply may assert any defense or claim he may have under §§ 6.2-304 and 6.2-305 against any assignee or transferee of the contract of indebtedness.

1987, c. 622, § 6.1-330.72; 1993, c. 774; 1995, c. 75; 1996, c. 243; 1998, cc. 69, 89; 2010, c. 794.

§ 6.2-329. Loans insured or guaranteed by certain governmental agencies.

A. No person shall, by way of defense or otherwise, avail himself of any of the provisions of this chapter or any other law relating to usury or any statutory or case law relating to compounding of interest to avoid or defeat the payment of any interest or any other sum which he has contracted to pay on any loan:

1. Insured by the Federal Housing Administration, pursuant to the provisions of the National Housing Act (12 U.S.C. § 1701 et seq.);

2. Guaranteed by the U.S. Department of Veterans Affairs, pursuant to Title 38 of the United States Code; or

3. Insured or guaranteed by any similar federal governmental agency or organization, or made directly or indirectly by the Virginia Housing Development Authority pursuant to the provisions of Chapter 1.2 (§ 36-55.24 et seq.) of Title 36.

B. Nothing contained in this chapter shall be construed to prevent the recovery of such interest or any other sum from any person who has contracted to pay the same in connection with any loan described in this section.

1987, c. 622, § 6.1-330.74; 2010, c. 794.