Title 54, DEBTOR AND CREDITOR

Terms used in this chapter and chapter 54-8 are defined as follows, unless the context otherwise plainly requires: (1) "Creditor," is one in whose favor an obligation exists by reason of which he is, or may become, entitled to the payment of money; (2) "Debtor," one who, by reaso…

Notwithstanding any other provisions of law specifically including § 57A-9-623 , to the extent set forth in the transaction documents relating to a securitization transaction: (1) Any property, assets, or rights purported to be transferred, in whole or in part, in the securitizat…

A loan of money is a contract by which one delivers a sum of money to another, and the latter agrees to return at a future time a sum equivalent to that which he borrowed. Source: CivC 1877, § 1092; CL 1887, § 3715; RCivC 1903, § 1411; RC 1919, § 1034; SDC 1939, § 38.0101.

In the absence of fraud every contract of a debtor is valid against all his creditors, existing or subsequent, who have not acquired a lien on the property affected by such contract. Source: CivC 1877, § 2020; CL 1887, § 4653; RCivC 1903, § 2365; RC 1919, § 2038; SDC 1939, § 23.0…

A debtor may pay one creditor in preference to another, or may give to one creditor security for the payment of his demand in preference to another. Source: CivC 1877, § 2021; CL 1887, § 4654; RCivC 1903, § 2366; RC 1919, § 2039; SDC 1939, § 23.0103.

Where a creditor is entitled to resort to each of several funds for the satisfaction of his claim, and another person has an interest in or is entitled as a creditor to resort to some but not all of them, the latter may require the former to seek satisfaction from those funds to …

The term "open account," as used in this title, means an account, usually retail in nature, under which the creditor permits the customer to make purchases or obtain loans, from time to time, directly from the creditor or indirectly by use of a check or other device as the condit…

Interest rates on open accounts, as defined in § 54-1-6 , are subject to the provisions regarding interest rates in chapter 54-3 . Source: SL 1982, ch 340 , § 2.

Prior to increasing interest rates on open accounts, a creditor shall notify all customers having open accounts thirty days in advance of the increase. The notification shall clearly state the new interest rate, the effective date of the new interest rate and that the customer ei…

For purposes of §§ 54-1-9 and 54-1-10 , a securitization is the pooling and repackaging by a special purpose entity of assets or other credit exposures that can be sold to investors. Securitization includes transactions that create stratified credit risk positions whose performan…

Performance of an obligation for the delivery of money only, is called payment. Source: CivC 1877, § 832; CL 1887, § 3456; RCivC 1903, § 1149; RC 1919, § 756; SDC 1939, § 47.0206.

A borrower of money must pay the amount due in such money as is current at the time when the loan becomes due, whether such money is worth more or less than the actual money lent. Source: CivC 1877, § 1093; CL 1887, § 3716; RCivC 1903, § 1412; RC 1919, § 1035; SDC 1939, § 38.0102…

An obligation for the payment of money is extinguished by a due offer of payment, if the amount is immediately deposited in the name of the creditor with some bank of deposit within this state, of good repute, and notice thereof is given to the creditor. Source: CivC 1877, § 849;…

Interest is the compensation allowed by law for the use, or forbearance, or detention of money or its equivalent, including without limitation, points, loan origination fees, credit service or carrying charges, charges for unanticipated late payments, and any other charges, direc…

Unless a maximum interest rate or charge is specifically established elsewhere in the code, there is no maximum interest rate or charge, or usury rate restriction between or among persons, corporations, limited liability companies, estates, fiduciaries, associations, or any other…

Regulated lenders are exempt from all limitations on the rate of interest which they may charge and are further exempt from the operation and effect of all usury statutes, except as is otherwise provided in § 54-3-14 . Regulated lenders and their assignees are further exempt from…

The term, regulated lenders, as used in § 54-3-13 means: (1) A bank organized pursuant to chapter 51A-1 , et seq.; (2) A bank organized pursuant to 12 U.S.C. § 21; (3) A trust company organized pursuant to chapter 51A-6A ; (4) A savings and loan association organized pursuant to …

The provisions of 12 U.S.C. 1735f-7, 12 U.S.C. 86a and 15 U.S.C. 687 in effect on December 31, 1980, which preempt state usury laws, do not apply to loans made in the state of South Dakota. Source: SL 1981, ch 351 .

The official state interest rates, as referenced throughout the South Dakota Codified Laws, are as follows: (1) Category A rate of interest is four and one - half percent per year; (2) Category B rate of interest is ten percent per year; (3) Category C rate of interest is twelve …

The Division of Banking shall annually review current interest rates, which review shall take into account the national rate of inflation and the prime lending rate as well as other indices division personnel deem proper, and, if necessary, shall recommend amendments to § 54-3-16…

Whenever a loan of money is made it is presumed to be made upon interest, unless it is otherwise expressly stipulated at the time in writing. Source: CivC 1877, § 1094; CL 1887, § 3717; RCivC 1903, § 1413; RC 1919, § 1036; SDC 1939, § 38.0104.

When a rate of interest is prescribed by a law or contract, without specifying the period of time by which such rate is to be calculated, it is to be deemed an annual rate. Source: CivC 1877, § 1096; CL 1887, § 3719; RCivC 1903, § 1415; RC 1919, § 1038; SDC 1939, § 38.0107.

Under an obligation to pay interest, no rate being specified, interest is payable from date of incurrence of debt, unless the parties have otherwise agreed, at a maximum rate of the Category C rate of interest as established in § 54-3-16 , and in the like proportion for a longer …

Unless there is an express contract in writing fixing a different rate or the interest rate clearly appears on the bill, statement, or invoice, interest is payable on all moneys at the Category F rate of interest as established in § 54-3-16 after they become due on any instrument…

Interest is payable on all judgments and statutory liens, exclusive of real estate mortgages and security agreements under Title 57A, and exclusive of support debts or judgments under § 25-7A-14 , at the Category B rate of interest as established in § 54-3-16 from and after the d…

Any legal rate of interest, stipulated by a contract, remains chargeable after a breach thereof, as before, until the contract is superseded by a verdict or other new obligation. Source: CivC 1877, § 1102; CL 1887, § 3725; RCivC 1903, § 1421; RC 1919, § 1045; SDC 1939, § 38.0106.

The interest which would become due at the end of the term for which a loan is made, not exceeding one year's interest in all, may be deducted from the loan in advance if the parties thus agree. Source: CivC 1877, § 1099; CL 1887, § 3722; RCivC 1903, § 1418; RC 1919, § 1043; SDC …

Terms used in this chapter mean: (1) "Cash sale price," the price for which the person making a sale pursuant to an installment sales contract would have sold the goods or services if the sale had been for cash. The cash sale price may include any taxes or license, title, and reg…

If the maturity of an obligation under an installment sales contract is accelerated for any reason and judgment is obtained, the consumer is entitled to a rebate computed as if payment in full had been made on the date that the action was brought. Source: SL 1974, ch 305 , § 4.

If the buyer has not paid an installment on an installment sales contract on or before the tenth day after its due date, as originally scheduled or as deferred, the creditor, if he chooses to impose a penalty for the delinquency, shall before the due date of the next scheduled in…

The holder of a contract authorized by this chapter may, if the contract so provides, collect a delinquency and collection charge on each installment in arrears for a period of not less than ten days in an amount not in excess of five percent of each installment or five dollars, …

The holder of a contract authorized by this chapter may, if the contract so provides, collect a charge not to exceed thirty dollars for each check, draft, order of withdrawal, or similar payment device that is received by the holder in connection with the contract and that is ret…

No term of a writing executed by the buyer prior to agreement to a deferral constitutes authority for a creditor unilaterally to grant a deferral and make charges therefor. Source: SL 1974, ch 305 , § 12; SL 1990, ch 30 , § 14.

A deferral agreement shall: (1) Be in writing and be signed by the parties; (2) Incorporate by reference the transaction to which the deferral agreement applies; (3) State the number of installments or partial installments to be deferred, the amounts thereof, the date or dates or…

A charge may not be collected for the deferral of an installment payment or any part thereof if the unpaid balance is refinanced. Source: SL 1974, ch 305 , § 12.

A creditor may, by written agreement with the buyer, refinance the unpaid balance and may contract for and receive a finance charge based on the amount refinanced. Any rebate due to the buyer pursuant to the provisions of § 54-3A-9 if the buyer was prepaying in full on the date o…

A refinancing agreement shall: (1) Be in writing and be signed by the parties; (2) Incorporate by reference the transaction to which the refinancing agreement applies; (3) State the amount that is to be refinanced, the date or dates on which the installments were originally payab…

If a delinquent installment is not deferred or the unpaid balance is not refinanced under the provisions of this chapter within thirty days after the due date of the delinquent installment, then the creditor may pursue any remedies available to him. Source: SL 1974, ch 305 , § 15…

As used in this chapter, unless the context otherwise requires, "amount financed" means the total of the following items from which any prepaid finance charge or required deposit has been excluded: (1) The cash price of the goods or services less the total amount of any down paym…

If any amount in excess of the charges permitted by this chapter is contracted for or received, or if any other provision of this chapter is violated, other than as a result of an unintentional or bona fide error of computation, the consumer shall not be liable for any part of th…

With respect to excess charges arising from an installment sales contract, no action pursuant to § 54-3A-20 may be brought more than three years after the due date of the last scheduled payment of the contract on which the charge was made. Source: SL 1974, ch 305 , § 17.

No action shall be commenced to recover any amount under § 54-3A-20 unless and until written demand therefor has been made, signed by the buyer, and the creditor has failed to refund or credit such amount to the buyer within sixty days after receipt of the demand. Source: SL 1974…

The creditor shall have the burden of establishing by a preponderance of the evidence that the excess amount or other violation occurred as a result of an unintentional or bona fide error of computation. Source: SL 1974, ch 305 , § 16.

The Department of Labor and Regulation may promulgate rules and regulations to carry out the provisions of this chapter. Such rules and regulations shall be promulgated in accordance with chapter 1-26 . Source: SL 1974, ch 305 , § 18; SL 2004, ch 17 , § 304; SL 2011, ch 1 (Ex. Or…

If any part of this chapter is invalid, all valid parts that are severable from the invalid part shall remain in effect. If any part of this chapter is invalid in one or more of its applications, the parts that are severable from the invalid applications shall remain in effect in…

Notwithstanding the provisions of any other law, a creditor may contract for and receive, pursuant to an installment sales contract, a finance charge at a rate as agreed upon by the creditor and the consumer by written agreement. The finance charge is expressed and compounded in …

In addition to the finance charge, a creditor may contract for, and receive the following additional charges in connection with an installment sales contract if such charges are itemized and disclosed to the buyer: (1) Official fees and taxes; (2) Charges for guaranteed asset pro…

The term of a consumer obligation under this chapter, commences with the date the credit is granted unless goods are delivered or services are performed ten days or more after the date credit is granted, in which case the term commences with the date of delivery or performance. N…

Except as provided in this section, no creditor shall modify the terms of any agreement with a consumer with respect to any outstanding obligation of the consumer, which results in an increase of the rate of the finance or other charges or an increase in the amount of an installm…

As used in this chapter, unless the context otherwise requires, "Rule of 78" means a refund of charges which shall be at least as great a proportion of the total charges, as the sum of the remaining monthly balances of principal and interest combined scheduled to follow the date …