Louisiana S.A.F.E.Residential Mortgage Lending Act • Changes as a result of Act 522 of the 2009 Legislature
SAFE Residential Mortgage Lending Act • LSA-R.S. 6:1081 through 6:1099 • Enacted effective July 31, 2009 • Provides for licensure of mortgage originators, brokers, and lenders
Definitions • “Mortgage Loan Originator” means an individual who for compensation or gain or with the expectation of compensation or gain takes a residential mortgage loan application or offers or negotiates terms of a residential mortgage loan.
Definitions • Mortgage Broker or Residential Mortgage Broker • any person who, directly or indirectly, for compensation or expectation of compensation, negotiates, places, or finds, or offers to negotiate, place or find a residential mortgage loan for another person • includes FHA loan correspondents and lenders who table fund loans
Definitions • Mortgage Lender or Residential Mortgage Lender • any person who, directly or indirectly, originates or makes, or offers to originate or make, a residential mortgage loan for another person
Definitions • Residential Mortgage Lending Activity • any activity, including electronic activity, engaged in for compensation or with the expectation of compensation in connection with a residential loan transaction including origination or funding, negotiation or placement, or offering to negotiate,place or fund a residential mortgage loan for a person
Definitions • Residential Mortgage Loan • Any loan primarily for personal, family, or household use that is secured by a mortgage, deed of trust, or other equivalent consensual security interest on a dwelling as defined in Reg Z or residential immovable property upon which is constructed or intended to be constructed a dwelling as defined in Reg Z
Residential Mortgage Loan • Now covers all loans secured by a persons dwelling including: • Mobile home loans without a security interest in the land • Motor homes used as the person’s dwelling • Boats if used as the person’s dwelling • Vacant land if to be used to construct or move a person’s residence on it
Definitions • Registered Mortgage Loan Originator • An individual who meets the definition of a mortgage loan originator and is an employee of a depository institution or a subsidiary that is either owned and controlled by a depository institution and regulated by a federal banking agency or an institution regulated by the Farm Credit Administration and is registered with, and maintains a unique identifier through, the Nationwide Mortgage Licensing System & registry.
R.S. 6:1086 • Beginning July 31, 2009, unless otherwise exempt, no person shall engage in residential mortgage lending activity without first obtaining and maintaining annually: • A license and registration as a mortgage loan originator, or a license as a mortgage lender or broker • A unique identifier in the NMLS&R
R.S. 6:1086 • The following persons shall have until July 31, 2010 to obtain a license in compliance with the Act: • A person whose activities were not subject to the licensing provisions of this Act on July 30, 2009 • A person engaged in residential mortgage lending activities which was subject to an exemption provided by this Chapter on July 30, 2009
Originator Exemptions • Registered mortgage loan originators, when acting for a depository institution • An individual who offers or negotiates terms of a residential mortgage loan with or on behalf of an immediate family member • A licensed attorney who negotiates the terms of a residential mortgage loan on behalf of a client as an ancillary matter to the representation of the client unless the attorney is compensated by a lender, a mortgage broker, or other mortgage originator including any agents of such
Originator Exemptions • Any individual who performs only real estate brokerage activities and is licensed provided they are not compensated by a lender, mortgage broker, or other mortgage originator or any of their agents • Any individual engaged solely in extensions of credit involving timeshares • Individuals who are employees of a retailer of manufactured or modular homes performing only clerical duties which receive no compensation or gain from a mortgage broker or lender • An individual who offers or negotiates terms of a mortgage loan secured by a dwelling that is owned by and serves as the individual’s residence
Originator ExemptionsLoan Processor or Underwriter • An individual engaging solely in loan processor or underwriting activities, who does not represent to the public, through advertising or other means including the use of business cards, stationary, brochures, signs, rate lists, or other promotional items, that such individual can or sill perform any of the activities of a mortgage originator. • Defined as a person who performs clerical or support duties as an employee at the direction of and subject to the supervision of a person license or exempt from the Act.
Originator ExemptionsLoan Processor or Underwriter • Clerical or Support Duties include subsequent to receipt of an application: • Receipt, collection, distribution, and analysis or information common for the processing or underwriting of a residential mortgage loan • Communicating with a consumer to obtain the information necessary for the processing or underwriting of a loan, to the extent that such communication does not include offering or negotiating loan rates or terms, or counseling consumers about residential loan rates or terms
Originator ExemptionsLoan Processor or Underwriter • DO NOT APPLY TO: • Independent contractor loan processors or underwriters • They must obtain an originator license and a unique identifier issued by the NMLS&R
Mortgage Broker/Lender Exemptions • Depository Institutions or direct or indirect subsidiaries including their employees • Exempt from licensure • Still subject to requirement of Part III
Direct & Indirect Subsidiaries Depository Institutions • Proposed definitions: • Direct Subsidiary - any firm, corporation, association, trust, or legal entity which is 100 percent owned by a bank, savings bank, savings and loan association, or credit union. • Indirect Subsidiary - any firm, corporation, association, trust, or legal entity which is 100 percent owned by a direct subsidiary as defined above, and any firm, corporation, association, trust, legal entity, partnership, or limited liability company which is 100 percent owned by a bank, savings bank, savings and loan association, or credit union, and one or more direct subsidiaries as defined above.
Mortgage Broker/LenderExemptions • Mortgagees which are the former owner of the dwelling or residential immovable property • Insurance company or agent which holds a current producer license and brokers loans exclusively to an insurer • Both still subject to Part III of Act
Mortgage Broker/LenderExemptions • Licensed Attorneys • When activity is incidental to providing legal services • Exempt from licensure • Still subject to Part III
Mortgage Broker/LenderExemptions • Any not for profit 501(c) corporation making loans to promote home ownership or improvements for the disadvantaged • Exempt from licensure • Still subject to Part III
Mortgage Broker/LenderExemptions • Any Real Estate Investment Trust • Small Business investment Companies licensed by SBA • Both Still subject to Part III
Requirements for Licensing • Fingerprints and fee for background check • Personal history and experience submitted through the NMLS&R • Authorization and fee for obtaining a credit report • Information required for owners, members, or partners • For corporation each 10% or greater shareholder
Requirements for Licensing • Demonstrate financial responsibility, character, and general fitness to warrant a determination that the applicant will operate honestly, fairly and efficiently within the purposes of this Chapter. • Complete 24 hours of pre-licensing education approved by NMLS&R (4 hours must also be approved by either NAMB or MBA) also a minimum of each of the following • 3 hours of federal law and regulations • 3 hours of ethics including fraud, consumer protection, and fair lending • 2 hours of training relating to non-traditional mortgage marketplace • Pass a written examination with both national and state components • Obtain and maintain a surety bond • Originators may be covered by a Surety Bond obtained by their employer
Restrictions on granting Licenses • Paid all fees due to OFI • Never had a mortgage related license revoked in any governmental jurisdiction • Never convicted, pled guilty, or nolo contendere to a felony involving fraud, dishonesty, breach of trust, or money laundering • Not convicted, pled guilty, or nolo contendere to any felony within the last seven years
Surety Bond / Deposit • Each applicant for licensure must provide one of the following in amount which determined by loan volume: • Surety Bond based upon loan volume from the previous year: • $0 to $99,999,999 bond amount of $25,000 • $100,000,000 or greater bond amount of $50,000 • Employer may obtain coverage for employees • Pledged deposit in federally insured institution located in Louisiana in the amount of Surety Bond otherwise required • * For initial license bond or deposit must be at least $25,000
Nationwide Mortgage Licensing System and Registry (NMLS&R) • Effective June 18, 2007 Act 36 of the 2007 legislature authorized the Office of Financial Institution’s participation in a nationwide online licensing system. • The licensing system collects application data from individuals and companies and submit it to each jurisdiction (state) where they are licensed or applying for a license.
Nationwide Mortgage Licensing System and Registry (NMLS&R) • Office of Financial Institutions began utilizing the system on August 1, 2008. • Beginning August 1, 2008, all application filings and notifications with OFI were required to be made through the licensing system.
Nationwide Mortgage Licensing System and Registry (NMLS&R) • All persons utilizing the nationwide licensing system shall be required to pay user fees in addition to any applicable license, renewal, notification, or late fees. • The Commissioner may share any information disclosed to the system with any state or federal regulatory agencies having authority over residential mortgage lending activities
RENEWALS • Renewals are due by December 1st each year • Late after December 31 and before March 1, • Licenses Expire January 1 unless all requirements satisfied before March 1
Requirements for Renewal • Must continue to meet all requirements for obtaining a license • Must satisfy the continuing educational requirements • Must be in compliance with all uncontested orders or consent agreements including payment of fees, penalties, or refunds NOTE failing to meet requirements will result in license expiring on December 31
LSA-R.S. 6:1089 • No residential mortgage lender or originator may conduct lending activities under any name other than in their current record on the NMLS&R • Commissioner must be notified prior to changes in name or location and pay $100 fee • Must notify Commissioner of office closure within 30 days • A late notification results in an additional $100 late fee
LSA-R.S. 6:1089 B. • Whenever employment of an originator changes, Commissioner must be notified within 30 days • Employer and Employee must give notification through NMLS&R • Employee must pay $50 transfer fee to change sponsorship of their license to another broker or lender • Failure to notify within 30 days results in a $100 late notification fee per occurrence
Immediate Suspension • The Commissioner may order an immediate suspension of the license of any person who: • Fails to maintain bond or pledged deposit • Commits serious violations of the Act such that, in the opinion of the Commissioner, the public safety and welfare demand emergency action • Submits a check covering the fee for any application, notification, examination, late fee, or penalty which is returned by the licensee’s depository institution
Immediate Suspension • Is convicted of a felony which would have prohibited issuance or renewal of the license • Has license suspended or revoked in another jurisdiction
Appeal of Immediate Suspension • A person for whom a license has been suspended shall have thirty days from the date of the order to request a hearing in accordance with the Administrative Procedure Act • Failure to timely request a hearing shall constitute a waiver of appeal rights regarding the suspension
Fines & Penalties • Upon being found guilty of violating any provision of the RMLA or Rule brokers, and/or originators may be fined: • Up to $1,000 per violation & • Up to $1,000 per day the person acts as a residential mortgage broker, lender, or originator without complying with the RMLA or any rules promulgated thereunder • Refunds may also be ordered for any unauthorized fee or charge
Prohibitions • It shall be a violation for any person engaged in residential mortgage lending activity subject to this Chapter to: • Directly or indirectly employ any scheme, device, or artifice to defraud or mislead borrowers, lenders, or any person, when such person or individual knew or should have known that such was defrauding or misleading • Engage in any unfair or deceptive practice toward any person • Obtain property by fraud or misrepresentation
Prohibitions • With intent to defraud, solicit or enter into a contract with a consumer providing for payment of an unlawful fee or commission to a person subject to this Chapter even though no loan is actually obtained for the consumer • Solicit, advertise, or enter into a contract for specific interest rates, points, or other terms when the person or individual knew or should have known that such terms are not actually available at the time of soliciting, advertising, or contracting.
Prohibitions • Conduct any business covered by this Chapter without holding a license or knowingly assist or aid and abet any person in the conduct of business under this Chapter without a valid license as required • As determined by the commissioner, structure a residential loan transaction in such a manner as to circumvent the provisions of this Chapter • Fail to comply with this Chapter or rules or regulations promulgated under it, or fail to comply with any other state or federal law, including rules and regulations issued thereunder, applicable to any residential mortgage lending activity
Prohibitions • Make in any manner, any false or deceptive statement or representation with regard to the rates, points, or terms or conditions for a residential mortgage loan when such person or individual knew or should have known that such was false or deceptive, or engage in bait and switch advertising • Negligently make any false statement, or knowingly and willfully make any omission of material fact, in connection with any information or reports filed with a governmental agency or the NMLS&R, or in connection with any investigation conducted by the commissioner or any other governmental agency
Prohibitions • Make any payment, threat, or promise, directly, to any person or appraiser of a property for the purpose of influencing the independent judgment of the person in connection with a residential mortgage loan, or influencing the independent judgment of the appraiser with respect to the value of the property • Collect, charge, or attempt to collect or charge, or use or propose any agreement purporting to collect or charge any fee prohibited by this Chapter • Engage in loan processing or underwriting activities as an independent contractor without obtaining a license to act as a residential mortgage loan originator
Prohibitions • Fail to truthfully account for monies belonging to a party to a residential mortgage loan transaction • Represent to the public through advertising or other means of communicating or providing information including the use of business cards, stationary, brochures, signs, rate lists, or other promotional items, that such an individual can or will perform any activities of a mortgage loan originator, while such individual engages in activities solely as a loan processor or underwriter
Continuing Education • Each licensed originator must take 10 hours of NMLS&R approved continuing education each year prior to renewal • 3 hours of education pertaining to federal laws and regulations • 2 hours of ethics, which shall include instruction on fraud, consumer protection, and fair lending issues • 2 hours related to lending standards for the nontraditional mortgage product marketplace • 2 hours of the remaining required in addition to being approved by the NMLS&R must also be approved by either NAMB or MBA
Continuing Education for 2009 • Specific content will not be required until Commissioner determines that NMLS&R is adequately available for all Louisiana licensees to become compliant • Anticipated in early 2010 • Any 10 hours of education approved by OFI will be sufficient for renewal of an originator license for 2010
Testing Requirements • All licensed originators must obtain a passing grade on both the National and State Components of the test developed by the NMLS&R • All new applicants on or after July 31, 2009 must obtain a passing grade on both components of the test before obtaining a license • Originators which were licensed on or before July 30, 2009 must obtain a passing grade on both components by December 31, 2010
Testing RequirementsState Component Exemption • Originators which obtained a passing grade on or after January 1, 2004 on the Louisiana pre-licensing test previously administered by PSI Exams • Will be exempt from taking the state component of the test but must obtain a passing grade on the national component by December 31, 2010 • A passing score is 75% correct answers
Testing RequirementsFailing Grades • An individual may retake one or both of the components of the test up to three consecutive times after waiting at least thirty days between tests • After failing three consecutive tests the individual must wait at least six months before taking a test again
Requirement toRetake Examinations • An originator who fails to maintain a license for a period of five years or longer will be required to obtain a passing grade on both components prior to obtaining a license
AllowableUp Front Fees By Brokers • Appraisal • Title Search • Credit Report • Actual cost of Loan Prospector or Desktop Underwriter fees not to exceed $25 • Licensed brokers may collect up to a $500 application fee provided: • Prior to collecting the consumer is provided a written disclosure of the amount of the fee and • The application fee shall be refundable at any time prior to ordering any service required by the lender or is the lender is unable to approve the loan after all requested documentation has been provided