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S1389................................................by JUDICIARY AND RULES RESIDENTIAL MORTGAGE PRACTICES - Adds to and amends existing law relating to the Residential Mortgage Practices Act; to revise definitions and define terms; to revise exemptions; to revise provisions providing for unlawful acts and punishment; to revise provisions applicable to licenses to do business as mortgage brokers or mortgage lenders; to set forth provisions applicable to licenses to do business as loan originators; to revise provisions applicable to the revocation or suspension of a license; to increase the bond amount for mortgage broker and mortgage lender licensees and to provide for a certificate of deposit in lieu of such bond; to require a bond for loan originator licensees and to provide for a certificate of deposit in lieu of such bond; to provide for the adoption of rules requiring continuing education; to provide notification and records maintenance requirements for mortgage broker and mortgage lender licensees who employ or contract with loan originator licensees; to increase the annual license renewal fee for mortgage broker and mortgage lender licensees; to set forth an annual license renewal fee for loan originator licensees; to revise the prohibited practices of mortgage broker and mortgage lender licensees; to set forth prohibited practices of loan originators; and to set forth provisions applicable to loan originator licensing. 02/24 Senate intro - 1st rdg - to printing 02/25 Rpt prt - to Com/HuRes 03/05 Rpt out - rec d/p - to 2nd rdg 03/08 2nd rdg - to 3rd rdg 03/09 3rd rdg - PASSED - 33-1-1 AYES -- Andreason, Bailey, Brandt, Bunderson, Burkett, Burtenshaw, Calabretta, Cameron, Compton, Darrington, Davis, Gannon, Geddes, Goedde, Hill, Ingram, Kennedy, Keough, Little, Lodge, Malepeai, Marley, McKenzie, McWilliams, Noh, Pearce, Richardson, Schroeder, Sorensen, Stegner, Stennett, Werk, Williams NAYS -- Sweet Absent and excused -- Noble Floor Sponsor - Goedde Title apvd - to House 03/10 House intro - 1st rdg - to Bus 03/18 Rpt out - rec d/p - to 2nd rdg 03/19 2nd rdg - to 3rd rdg Rls susp - PASSED - 55-8-7 AYES -- Andersen, Barraclough, Bayer, Bedke, Bell, Block, Boe, Bolz, Bradford, Campbell, Cannon, Clark, Collins, Cuddy, Deal, Denney, Douglas, Eberle, Edmunson, Eskridge, Field(18), Field(23), Gagner, Garrett, Harwood, Henbest, Jaquet, Jones, Kellogg, Langhorst, Martinez, McGeachin, Meyer, Miller, Mitchell, Naccarato, Nielsen, Pasley-Stuart, Ridinger, Ring, Ringo, Roberts, Robison, Rydalch, Sayler, Schaefer, Shepherd, Shirley, Smith(30), Smith(24), Smylie, Snodgrass, Stevenson, Wills, Mr. Speaker NAYS -- Barrett, Crow, Kulczyk, Langford, McKague, Raybould, Sali, Wood Absent and excused -- Bauer, Black, Ellsworth, Lake, Moyle, Skippen, Trail Floor Sponsor - Meyer Title apvd - to Senate 03/19 To enrol 03/20 Rpt enrol - Pres signed - Sp signed 03/22 To Governor 04/02 Governor signed Session Law Chapter 377 Effective: 07/01/04; Section 7 - effective on 01/01 of the year that Legislature grants appropriation for loan originator licensing to Department of Finance
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]] Fifty-seventh Legislature Second Regular Session - 2004IN THE SENATE SENATE BILL NO. 1389 BY JUDICIARY AND RULES COMMITTEE 1 AN ACT 2 RELATING TO THE RESIDENTIAL MORTGAGE PRACTICES ACT; AMENDING SECTION 26-3101, 3 IDAHO CODE, TO PROVIDE THAT THE CHAPTER SHALL BE KNOWN AS THE "RESIDENTIAL 4 MORTGAGE PRACTICES ACT"; AMENDING SECTION 26-3102, IDAHO CODE, TO REVISE 5 AND UPDATE DEFINITIONS AND TO DEFINE "LOAN ORIGINATOR" AND "LOAN 6 ORIGINATION ACTIVITIES"; AMENDING SECTION 26-3103, IDAHO CODE, TO REVISE 7 EXEMPTIONS; AMENDING SECTION 26-3104, IDAHO CODE, TO REVISE PROVISIONS 8 PROVIDING FOR UNLAWFUL ACTS AND PUNISHMENT; AMENDING SECTION 26-3105, 9 IDAHO CODE, TO REVISE TERMINOLOGY AND TO MAKE A GRAMMATICAL CORRECTION; 10 AMENDING SECTION 26-3108, IDAHO CODE, TO REVISE DESCRIPTIVE LANGUAGE AND 11 TO REVISE PROVISIONS APPLICABLE TO LICENSES TO DO BUSINESS AS MORTGAGE 12 BROKERS OR MORTGAGE LENDERS; AMENDING CHAPTER 31, TITLE 26, IDAHO CODE, BY 13 THE ADDITION OF A NEW SECTION 26-3108A, IDAHO CODE, TO SET FORTH PROVI- 14 SIONS APPLICABLE TO LICENSES TO DO BUSINESS AS LOAN ORIGINATORS; AMENDING 15 SECTION 26-3109, IDAHO CODE, TO REVISE PROVISIONS APPLICABLE TO THE REVO- 16 CATION OR SUSPENSION OF A LICENSE; AMENDING SECTION 26-3110, IDAHO CODE, 17 TO REVISE DESCRIPTIVE LANGUAGE, TO INCREASE THE BOND AMOUNT FOR MORTGAGE 18 BROKER AND MORTGAGE LENDER LICENSEES, TO REQUIRE THE LICENSEE TO PLACE THE 19 BOND ON FILE WITH THE DEPARTMENT, TO PROVIDE FOR A CERTIFICATE OF DEPOSIT 20 IN LIEU OF BOND, TO REQUIRE A BOND FOR LOAN ORIGINATOR LICENSEES AND TO 21 PROVIDE FOR A CERTIFICATE OF DEPOSIT IN LIEU OF SUCH BOND, TO PROVIDE 22 CLARIFYING LANGUAGE, TO REFERENCE LAWS PERTAINING TO LOAN ORIGINATION AND 23 MORTGAGE LENDING, TO PROVIDE FOR THE ADOPTION OF RULES REQUIRING CONTINU- 24 ING EDUCATION, TO PROVIDE FOR THE FILING OF INFORMATION BY ACCREDITED 25 SPONSORS OF CONTINUING EDUCATION PROGRAMS AND TO SET FORTH FEES FOR 26 REVIEWS; AMENDING SECTION 26-3111, IDAHO CODE, TO SPECIFY THAT FINANCIAL 27 RECORDS SHALL BE MAINTAINED, TO PROVIDE THAT LOAN RECORDS NEED NOT BE 28 MAINTAINED FOR MORE THAN THREE YEARS AFTER MAKING THE FINAL ENTRY RELATING 29 TO THE LOAN, TO PROVIDE NOTIFICATION AND RECORDS MAINTENANCE REQUIREMENTS 30 FOR MORTGAGE BROKER AND MORTGAGE LENDER LICENSEES WHO EMPLOY OR CONTRACT 31 WITH LOAN ORIGINATOR LICENSEES, TO INCREASE THE ANNUAL LICENSE RENEWAL FEE 32 FOR MORTGAGE BROKER AND MORTGAGE LENDER LICENSEES, TO PROVIDE CLARIFYING 33 LANGUAGE AND TO SET FORTH AN ANNUAL LICENSE RENEWAL FEE FOR LOAN 34 ORIGINATOR LICENSEES; AMENDING SECTION 26-3112, IDAHO CODE, TO MAKE A 35 TECHNICAL CORRECTION; AMENDING SECTION 26-3114, IDAHO CODE, TO REVISE 36 DESCRIPTIVE LANGUAGE AND TO REVISE THE PROHIBITED PRACTICES OF MORTGAGE 37 BROKER AND MORTGAGE LENDER LICENSEES; AMENDING CHAPTER 31, TITLE 26, IDAHO 38 CODE, BY THE ADDITION OF A NEW SECTION 26-3114A, IDAHO CODE, TO SET FORTH 39 PROHIBITED PRACTICES OF LOAN ORIGINATORS; AMENDING SECTION 26-3116, IDAHO 40 CODE, TO PROVIDE CORRECT CODE REFERENCES; AMENDING CHAPTER 31, TITLE 26, 41 IDAHO CODE, BY THE ADDITION OF A NEW SECTION 26-3116A, IDAHO CODE, TO SET 42 FORTH PROVISIONS APPLICABLE TO INITIAL LOAN ORIGINATOR LICENSING; AND PRO- 43 VIDING EFFECTIVE DATES AND A CONTINGENCY. 44 Be It Enacted by the Legislature of the State of Idaho: 2 1 SECTION 1. That Section 26-3101, Idaho Code, be, and the same is hereby 2 amended to read as follows: 3 26-3101. SHORT TITLE. This chaptermayshall be known and may be cited as 4 the "Residential Mortgage Practices Act." 5 SECTION 2. That Section 26-3102, Idaho Code, be, and the same is hereby 6 amended to read as follows: 7 26-3102. DEFINITIONS. As used in this chapter and in rules promulgated 8 pursuant to this chapter: 9 (1) "Act" means this Idaho residential mortgage practices act. 10 (2) "Agent" means a person who acts with the consent and on behalf of a 11 licensee, and is subject to the licensee's direct or indirect control, and may 12 include an independent contractor. 13 (3) "Borrower" means the person who has appliedto a lenderfor a resi- 14 dential mortgage loan from a licensee, or person required to be licensed, 15 under this chapter, or on whose behalf the activities set forth in subsections16 (178),and(189), or (20) of this section are conducted. 17 (4) "Department" means the department of finance of the state of Idaho. 18 (5) "Director" means the director of the department of finance. 19 (6) "Licensee" means a person licensed pursuant to this chapter to engage 20 in the activities regulated by this act. 21 (7) "Mortgagebankerlender" means any person, other than an exempt per- 22 son, who makes residential mortgage loans to borrowers, and performs the 23 activities described in subsection (178) of this section. 24 (8) "Mortgage broker" means any person, other than an exempt person, who 25 performs the activities described in subsection (189) of this section with 26 respect to a residential mortgage loan. For the purposes of this chapter, the 27 term "mortgage broker" does not include persons who are mortgagebankerslend- 28 ers. 29 (9) "Loan originator" means any person, other than an exempt person, who 30 performs the activities described in subsection (20) of this section with 31 respect to a residential mortgage loan. For the purposes of this chapter, the 32 term "loan originator" does not include persons who are mortgage brokers or 33 mortgage lenders. 34 (10) "Mortgage brokerage agreement" means a written agreement in which a 35 mortgage broker agrees to obtain a residential mortgage loan for the borrower 36 or assist the borrower in obtaining a residential mortgage loan. 37 (101) "Person" means an individual, sole proprietorship, partnership, cor- 38 poration, limited liability company, limited liability partnership, or other 39 association of individuals, however organized. 40 (112) "Real estate settlement procedures act" means the act set forth in 41 12 U.S.C. section 2601 et seq., as amended to and including January 1, 20034, 42 or a subsequent date if so defined by administrative rule. 43 (123) "Regulation X" means regulation X as promulgated by the U.S. depart- 44 ment of housing and urban development and codified in 24 CFR part 3500 et 45 seq., as amended to and including January 1, 20034, or a subsequent date if so 46 defined by administrative rule. 47 (134) "Regulation Z" means regulation Z as promulgated by the board of 48 governors of the federal reserve system and codified in 12 CFR part 226 et 49 seq., as amended to and including January 1, 20034, or a subsequent date if so 50 defined by administrative rule. 51 (145) "Residential mortgage loan" means a loan made primarily for per- 52 sonal, family, or household use and primarily secured by a security interest 3 1 on residential real property located in this state. 2 (156) "Residential real property" means real property located in this 3 state improved by a one (1) to four (4) family dwelling. 4 (167) "Truth in lending act" means the act set forth in 15 U.S.C. section 5 1601 et seq., as amended to and including January 1, 20034, or a subsequent 6 date if so defined by administrative rule. 7 (178) "Mortgagebankinglending activities" means for compensation or 8 gain, either directly or indirectly, accepting or offering to accept applica- 9 tions for residential mortgage loans, assisting or offering to assist in the 10 preparation of an application for a residential mortgage loan. 11 (189) "Mortgage brokering activities" means for compensation or gain, 12 either directly or indirectly, accepting or offering to accept an application 13 for a residential mortgage loan, assisting or offering to assist in the prepa- 14 ration of an application for a residential mortgage loan on behalf of a bor- 15 rower, or negotiating or offering to negotiate the terms or conditions of a 16 residential mortgage loan with any person making residential mortgage loans. 17 (20) "Loan origination activities" means for compensation or gain, either 18 directly or indirectly, engaging in any of the following activities while rep- 19 resenting or acting on behalf of a mortgage broker or mortgage lender: 20 (a) Soliciting, accepting, or offering to accept an application for a 21 residential mortgage loan; 22 (b) Assisting a borrower or offering to assist a borrower in the prepara- 23 tion of a residential mortgage loan application; or 24 (c) Negotiating or offering to negotiate the terms or conditions of a 25 residential mortgage loan with a borrower. 26 SECTION 3. That Section 26-3103, Idaho Code, be, and the same is hereby 27 amended to read as follows: 28 26-3103. EXEMPTIONS. The provisions of this chapter do not apply to: 29 (1) Agencies of the United States and agencies of this state and its 30 political subdivisions; 31 (2) An owner of real property who offers credit secured by a contract of 32 sale, mortgage or deed of trust on the property sold; 33 (3) A loan that is made by a person to an employee of that person if the 34 proceeds of the loan are used to assist the employee in meeting his housing 35 needs; 36 (4)Any person licensed or chartered under the laws of this state or the37United States as a bank, rRegulated lenders licensed under the Idaho credit 38 code and regularly engaged in making regulated consumer loans other than those 39 secured by a security interest in real property, savings and loan association,40credit union, or trust company; 41 (5) Trust companies as defined in section 26-3203, Idaho Code; 42 (6) Any person licensed or chartered under the laws of anyotherstate or 43 of the United States as a bank, savings and loan association,orcredit union, 44 or industrial loan company. The terms "bank," "savings and loan association," 45 "credit union" and "industrial loan company" shall include employees and 46 agents of such organizations as well as wholly-owned subsidiaries of such 47 organizations, provided that the subsidiary is regularly examined by the char- 48 tering state or federal agency for consumer compliance purposes, and shall 49 also include employees and agents of a licensee if the licensee is an affili- 50 ate of a bank and is wholly owned by the holding company system that owns the 51 bank; 52 (67) Attorneys, or persons licensed under chapter 2, title 54, Idaho 53 Code, provided that the license held by such attorneys or persons is in an 4 1 active status; 2 (78) Persons employed by,licensees on a full-time basis or persons who3are employed by no more than one (1) licensee on a part-time basisor who con- 4 tract with, a licensee under this chapter to perform only clerical or adminis- 5 trative functions on behalf of such licensee, and who do not solicit borrowers 6 or negotiate the terms of loans on behalf of the licensee; 7 (89) Any person or entity not making more than five (5) loans primarily 8 for personal, family, or household use and primarily secured by a security 9 interest on residential real property, with his own funds for his own invest- 10 ment, in any period of twelve (12) consecutive months; nor 11 (910) Any person who funds a residential mortgage loan which has been 12 originated and processed by a licensee or by an exempt person, who does not 13 directly or indirectly solicit borrowers in this state for the purpose of mak- 14 ing residential mortgage loans, and who does not participate in the negotia- 15 tion of residential mortgage loans with the borrower. For the purpose of this 16 subsection, "negotiation of residential mortgage loans" does not include set- 17 ting the terms under which a person may buy or fund a residential mortgage 18 loan originated by a licensee or exempt person. 19 SECTION 4. That Section 26-3104, Idaho Code, be, and the same is hereby 20 amended to read as follows: 21 26-3104. UNLAWFUL ACTS. (1)NoAny person, except a person exempt under 22 section 26-3103, Idaho Code,shallwho engages in mortgagebanking activities23 brokering or mortgagebrokeringlending activities without first obtaining a 24 mortgage broker or mortgage lender licensefrom the departmentin accordance 25 with this chapter, shall be guilty of a felony. 26 (2) Any person, not exempt under section 26-3103, Idaho Code, who engages 27 inmortgage bankingloan origination activitiesor mortgage brokering activi-28tieswithout first obtaining a loan originator licenseissued pursuant toin 29 accordance with this chapter, shall be guilty of a felony. 30 SECTION 5. That Section 26-3105, Idaho Code, be, and the same is hereby 31 amended to read as follows: 32 26-3105. POWERS AND DUTIES OF DIRECTOR. In addition to any other duties 33 imposed upon the director by law, the director shall: 34 (1) Administer and enforce the provisions and requirements of this chap- 35 ter; 36 (2) Conduct investigations and issue subpoenas as necessary to determine 37 whether a person has violated any provision of this chapter or rules promul- 38 gated under the authority of this chapter; 39 (3) Conduct examinations of the books and records of licensees and con- 40 duct investigations as necessary and proper for the enforcement of the provi- 41 sions of this chapter and the rules promulgated under the authority of this 42 chapter; 43 (4) Appoint a volunteer advisory board which shall consist of two (2) 44 individuals who are mortgagebankerslenders and two (2) individuals who are 45 mortgage brokers; 46 (5) Pursuant to chapter 52, title 67, Idaho Code, issue orders and pro- 47 mulgate rules that, in the opinion of the director, are necessary to execute, 48 enforce and effectuate the purposes of this chapter; 49 (6) Be authorized to set, by annual written notification to licensees, 50 limits on the fees and charges which are set forth in subsections (1) and (2) 51 of section 26-3113, Idaho Code; 5 1 (7) Require that all funds collected by the department under this chapter 2shallbe deposited into the finance administrative account pursuant to section 3 67-2702, Idaho Code; and 4 (8) Review and approve forms used by licensees prior to their use as pre- 5 scribed by the director. 6 SECTION 6. That Section 26-3108, Idaho Code, be, and the same is hereby 7 amended to read as follows: 8 26-3108. LICENSE TO DO BUSINESS AS A MORTGAGEBANKERBROKER OR MORTGAGE 9BROKERLENDER. (1) The director shall receive and act on all applications for 10 licenses to do business as a mortgagebankerbroker or mortgagebrokerlender. 11 Applications shall be filed in the manner prescribed by the director, shall 12 contain such information as the director may reasonably require, shall be 13 updated as necessary to keep the information current, and shall be accompanied 14 by an application fee oftwothree hundred fifty dollars ($20350). When an 15 application for licensure is denied or withdrawn, the director shall retain 16 all fees paid by the applicant. 17 (2) An application for license may be denied if the director finds that: 18 (a) The financial responsibility, character, and fitness of the license 19 applicant, and of the officers and directors thereof, if the applicant is 20 a corporation, partners thereof if the applicant is a partnership, members 21 or managers thereof if the applicant is a limited liability company, and 22 individuals designated in charge of the applicant's places of business, 23 are not such as to warrant belief that the business will be operated hon- 24 estly and fairly within the purposes of this chapter; 25 (b) The individual designated in charge of applicant's places of business 26 does not have a minimum of three (3) years' experience in residential 27 mortgage lending; 28 (c)The applicant does not have a net worth of at least ten thousand dol-29lars ($10,000);30(d)The applicant has been convicted of any felony or a misdemeanor 31 involving any aspect of the financial services business, or a court has 32 accepted a finding of guilt on the part of the applicant of any felony or 33 a misdemeanor involving any aspect of the financial services business; 34 (ed) The applicant has had a license, substantially equivalent to a 35 license under this chapter and issued by any state, denied, revoked or 36 suspended under the law of such state; 37 (fe) The applicant has filed an application for a license which is false 38 or misleading with respect to any material fact; 39 (gf) The applicant or any partner, officer, director, manager, member, 40 employee or agent of the applicant has violated this chapter or any rule 41 or order lawfully made pursuant to this chapter; 42 (hg) The applicant or any partner, officer, director, manager, member, 43 employee or agent of the applicant has violated anyother law of this44 state,or federal laws, rule or regulationspertaining to themortgage45banking or mortgage brokering activities set forth in section 26-3102,46Idaho Codefinancial services industry; or 47 (ih) The applicant has not provided information on the application as 48 reasonably required by the director pursuant to subsection (1) of this 49 section. 50 (3) The director is empowered to conduct investigations as he may deem 51 necessary, to enable him to determine the existence of the requirements set 52 out in subsection (2) of this section. 53 (4) Upon written request, an applicant is entitled to a hearing on the 6 1 question of his qualifications for a license if: 2 (a) The director has notified the applicant in writing that his applica- 3 tion has been denied, or objections filed; 4 (b) The director has not issued a license within sixty (60) days after 5 the application for the license was filed. If a hearing is held, the 6 applicant and those filing objections shall reimburse, pro rata, the 7 director for his reasonable and necessary expenses incurred as a result of 8 the hearing. A request for hearing may not be made more than fifteen (15) 9 days after the director has mailed a writing to the applicant notifying 10 him that the application has been denied and stating in substance the 11 director's finding supporting denial of the application or that objections 12 have been filed and the substance thereof. 13 (5) Every licensee under this section shallhave licensed and shallmain- 14 tain a home office licensed under this chapter asathe licensee's principal 15 location for the transaction of mortgage business. The director may, on appli- 16 cation, issue additional branch licenses to the same licensee upon compliance 17 with all the provisions of this chapter governing the issuance of a single 18 license. A separate license shall be required for each place of business from 19 which mortgage brokering activities or mortgagebankinglending activities are 20 directly or indirectly conducted. The individual in charge of each place of 21 business must satisfy the requirements of subsections (2)(b), (dc) and (ed) of 22 this section. Each license under this section shall remain in full force and 23 effect unless the licensee does not satisfy the renewal requirements of sec- 24 tion 26-3111(23), Idaho Code, or the license is relinquished, suspended, or 25 revoked; provided however, branch licenses shall be terminated upon the relin- 26 quishment or revocation of a home office license. 27 (6) No licensee under this section shall change the location of any place 28 of business, consolidate two (2) or more locations, or close any home office 29 location, without giving the director at least fifteen (15) days' prior writ- 30 ten notice. A licensee under this section shall give written notice to the 31 director within three (3) business days of the closure of any branch location 32 licensed under this chapter. Written notice of the closure of a home or branch 33 office location shall include a detailed explanation of the disposition of all 34 loan applications pending at the time of closure of the licensed location. 35 (7)ANo licensee under this section shallnotengage in the business of 36 making or brokering residential mortgage loans at any place of business for 37 which he does not hold a license nor shall he engage in business under any 38 other name than that on the license. 39 (8) The director may suspend action upon a mortgage broker or mortgage 40 lender license application pending resolution of any criminal charges before 41 any court of competent jurisdiction against an applicant whichwouldcould 42 disqualify that applicant if convicted. 43 (9) The director may suspend action upon a mortgage broker or mortgage 44 lender license application pending resolution of any civil action or adminis- 45 trative proceeding against an applicant in which the civil action or adminis- 46 trative proceeding involves any aspect of a financial service business and the 47 outcome of which could disqualify the applicant. 48 (10) An applicant under this section shall make complete disclosure of all 49 information required in the application, including information concerning 50 officers, directors, partners, members, managers, employees or agents. An 51 applicant, or an individual acting on behalf of the applicant, is not liable 52 in any civil action other than a civil action brought by a governmental 53 agency, related to an alleged untrue statement made pursuant to this section 54 unless it is shown by clear and convincing evidence that: 55 (a) The applicant, or an individual acting on behalf of the applicant, 7 1 knew at the time that the statement was made that it was false in any 2 material respect; or 3 (b) The applicant, or an individual acting on behalf of the applicant, 4 acted in reckless disregard as to the statement's truth or falsity. 5 (11) Each mortgage broker or mortgage lender licensed under this chapter 6 shall display in plain view the certificate of licensure issued by the depart- 7 ment in its principal office and in each branch office. 8 SECTION 7. That Chapter 31, Title 26, Idaho Code, be, and the same is 9 hereby amended by the addition thereto of a NEW SECTION, to be known and des- 10 ignated as Section 26-3108A, Idaho Code, and to read as follows: 11 26-3108A. LICENSE TO DO BUSINESS AS A LOAN ORIGINATOR. (1) The director 12 shall receive and act on all loan originator license applications. Applica- 13 tions shall be filed in the manner prescribed by the director, shall contain 14 such information as the director may reasonably require, shall be updated as 15 necessary to keep the information current, and shall be accompanied by an 16 application fee of two hundred dollars ($200). When an application for licen- 17 sure is denied or withdrawn, the director shall retain all fees paid by the 18 applicant. 19 (2) An application for license may be denied if the director finds that: 20 (a) The financial responsibility, character, and fitness of the license 21 applicant are not such as to warrant belief that the loan originator will 22 operate honestly and fairly within the purposes of this chapter; 23 (b) The applicant has been convicted of any felony or a misdemeanor 24 involving any aspect of the financial services business, or a court has 25 accepted a finding of guilt on the part of the applicant of any felony or 26 a misdemeanor involving any aspect of the financial services business; 27 (c) The applicant has had a license, substantially equivalent to a 28 license under this chapter and issued by any state, denied, revoked or 29 suspended under the law of such state; 30 (d) The applicant has filed an application for a license which is false 31 or misleading with respect to any material fact; 32 (e) The applicant has violated this chapter or any rule or order lawfully 33 made pursuant to this chapter; 34 (f) The applicant has violated any state or federal law, rule or regula- 35 tion pertaining to mortgage brokering, mortgage lending, or loan 36 origination activities set forth in section 26-3102, Idaho Code; or 37 (g) The applicant has not provided information on the application as rea- 38 sonably required by the director pursuant to subsection (1) of this sec- 39 tion. 40 (3) The director is empowered to conduct investigations as he may deem 41 necessary, to enable him to determine the existence of the requirements set 42 out in subsection (2) of this section. 43 (4) Upon written request, an applicant is entitled to a hearing on the 44 question of his qualifications for a license if: 45 (a) The director has notified the applicant in writing that his applica- 46 tion has been denied, or objections filed; 47 (b) The director has not issued a license within sixty (60) days after 48 the application for the license was filed. If a hearing is held, the 49 applicant and those filing objections shall reimburse, pro rata, the 50 director for his reasonable and necessary expenses incurred as a result of 51 the hearing. A request for hearing may not be made more than fifteen (15) 52 days after the director has mailed a writing to the applicant notifying 53 him that the application has been denied and stating in substance the 8 1 director's finding supporting denial of the application or that objections 2 have been filed and the substance thereof. 3 (5) A loan originator may transact business only for a mortgage broker or 4 mortgage lender licensed in accordance with the provisions of this chapter. 5 The original license issued by the department to a loan originator must be 6 provided to and be maintained by the employing mortgage broker or mortgage 7 lender at the mortgage broker's or lender's main office. A copy of the loan 8 originator's license must be displayed at the office where that loan 9 originator principally transacts business. 10 (6) Each license under this section shall remain in full force and effect 11 unless the licensee does not satisfy the renewal requirements of section 12 26-3111(4), Idaho Code, or the license is relinquished, suspended or revoked. 13 (7) A loan originator licensee under this chapter shall not engage in 14 loan origination activities at any location that is not a licensed home or 15 branch office location of the mortgage broker or mortgage lender he represents 16 or is acting on behalf of, nor shall he engage in loan origination activities 17 under any other name than that on the license. 18 (8) The director may suspend action upon a loan originator license appli- 19 cation pending resolution of any criminal charges before any court of compe- 20 tent jurisdiction against an applicant which could disqualify that applicant 21 if convicted. 22 (9) The director may suspend action upon a loan originator license appli- 23 cation pending resolution of any civil action or administrative proceeding 24 against an applicant, in which the civil action or administrative proceeding 25 involves any aspect of a financial service business and the outcome of which 26 could disqualify the applicant. 27 (10) An applicant under this section shall make complete disclosure of all 28 information required in the application. An applicant, or an individual acting 29 on behalf of the applicant, is not liable in any civil action other than a 30 civil action brought by a governmental agency, related to an alleged untrue 31 statement made pursuant to this section unless it is shown by clear and con- 32 vincing evidence that: 33 (a) The applicant, or an individual acting on behalf of the applicant, 34 knew at the time that the statement was made that it was false in any 35 material respect; or 36 (b) The applicant, or an individual acting on behalf of the applicant, 37 acted in reckless disregard as to the statement's truth or falsity. 38 SECTION 8. That Section 26-3109, Idaho Code, be, and the same is hereby 39 amended to read as follows: 40 26-3109. REVOCATION OR SUSPENSION OF LICENSE. (1) If the department has 41 reason to believe that grounds exist for revocation or suspension of a 42 license, the department may initiate a contested case against a mortgage 43bankerbroker,ormortgagebrokerlender or loan originator, and any partner, 44 officer, director, manager, member, employee or agent whose activities consti- 45 tute the basis for revocation or suspension, in accordance with chapter 52, 46 title 67, Idaho Code. The director may, after proceedings pursuant to chapter 47 52, title 67, Idaho Code, suspend the license for a period not to exceed six 48 (6) months, or revoke the license, if he finds that: 49 (a) The licensee or any partner, officer, director, manager, member, 50 employee or agent of the licensee has violated this chapter or any rule or 51 order lawfully made pursuant to this chapter; or 52 (b) The licensee or any partner, officer, director, manager, member, 53 employee or agent of the licensee has violated anyother laws of this9 1 state,or federal laws, rule or regulationspertaining tothemortgage 2bankingbrokering,ormortgagebrokeringlending, or loan origination 3 activities set forth in section 26-3102, Idaho Code; or 4 (c) Facts or conditions exist which would clearly have justified the 5 director in refusing to grant a license had these facts or conditions been 6 known to exist at the time the license was issued; or 7 (d) The licensee or any partner, officer, director, manager, member, 8 employee or agent of the licensee has been convicted of any felony or a 9 misdemeanor involving any aspect of the financial services business, or a 10 court has accepted a finding of guilt on the part of the licensee or part- 11 ner, officer, director, manager, member, employee or agent of the licen- 12 see, of any felony or a misdemeanor involving any aspect of the financial 13 services business; or 14 (e) The licensee or any partner, officer, director, manager, member, 15 employee or agent of the licensee has had a license substantially equiva- 16 lent to a license under this chapter, and issued by another state, denied, 17 revoked or suspended under the laws of such state; or 18 (f) The licensee has filed an application for a license which as of the 19 date the license was issued, or as of the date of an order denying, sus- 20 pending or revoking a license, was incomplete in any material respect or 21 contained any statement that was, in light of the circumstances under 22 which it was made, false or misleading with respect to any material fact; 23 or 24 (g)The licensee fails to maintain a net worth of ten thousand dollars25($10,000)The mortgage broker or mortgage lender licensee has employed, or 26 has entered into a contractual relationship with, any person who performs 27 loan origination activities for the licensee without first obtaining a 28 loan originator license under this chapter; or 29 (h) The mortgage broker or mortgage lender licensee has failed to notify 30 the director of the employment or termination of, or the entering into or 31 termination of a contractual relationship with, a licensed loan originator 32 pursuant to section 26-3111(2), Idaho Code; or 33 (i) The mortgage broker or mortgage lender licensee has failed to super- 34 vise diligently and control the mortgage-related activities of a loan 35 originator employed by the licensee. 36 (2) If the director finds that probable cause for revocation of a license 37 exists and that enforcement of this chapter and the public interest require 38 immediate suspension of the license pending investigation, he may, after a 39 hearing upon five (5) days' written notice, enter an order suspending the 40 license for not more than thirty (30) days. 41 (3) Any licensee may relinquish the license by notifying the department 42 in writing of its relinquishment, but this relinquishment shall not affect his 43 liability for acts previously committed, and may not occur after the filing of 44 a complaint for revocation of the license. 45 (4) The director may, in his discretion, reinstate a license, terminate a 46 suspension, or grant a new license to a person whose license has been revoked 47 or suspended if no fact or condition then exists which clearly would justify 48 the department in refusing to grant a license. 49 SECTION 9. That Section 26-3110, Idaho Code, be, and the same is hereby 50 amended to read as follows: 51 26-3110. SURETY BONDS AND CONTINUING EDUCATION. (1) All mortgage broker 52 and mortgage lender licensees, with or without an office located in this 53 state, shall maintain a surety bond to the state of Idaho in accordance with 10 1 this section. The bond to be maintained shall be in the amount oftentwenty- 2 five thousand dollars ($1025,000). This amount shall be increased by addi- 3 tional sums of ten thousand dollars ($10,000) for each licensed branch office. 4 The bond shall be a continuing obligation of the issuing surety. The surety's 5 liability under the bond for any claims made thereunder either individually or 6 in the aggregate shall in no event exceed the face amount of the bond issued. 7 The bond shall be issued by a surety authorized to do business in the state of 8 Idaho. The licensee shall place the bond, including any and all riders and 9 endorsements executed subsequent to the effective date of the bond,shall be10placedon file with the department. In lieu of the bonds required by this sec- 11 tion, a certificate of deposit issued by an Idaho bank and made payable to the 12 director may be provided to the director in the same principal amount as 13 required for bonds. The interest on the certificate of deposit shall be pay- 14 able to the licensee. The certificate of deposit shall be maintained at all 15 times during which the licensee is authorized to conduct mortgage brokering or 16 mortgage lending activities under this chapter, and must provide that it will 17 remain in effect for at least three (3) years following discontinuance of 18 operations unless released earlier by the director. 19 (2) All loan originator licensees under this chapter, whether operating 20 within or outside of the state of Idaho, shall maintain a surety bond to the 21 state of Idaho in accordance with this section. The bond to be maintained 22 shall be in the amount of ten thousand dollars ($10,000). The surety's liabil- 23 ity under the bond for any claims made thereunder either individually or in 24 the aggregate shall in no event exceed the face amount of the bond issued. The 25 bond shall be issued by a surety authorized to do business in the state of 26 Idaho. The licensee shall place the bond, including any and all riders and 27 endorsements executed subsequent to the effective date of the bond, on file 28 with the department. In lieu of the bond required by this section, a certifi- 29 cate of deposit issued by an Idaho bank and made payable to the director may 30 be provided to the director in the same principal amount as required for a 31 bond. The interest on the certificate of deposit shall be payable to the 32 licensee. The certificate of deposit shall be maintained at all times during 33 which the licensee is authorized to conduct loan origination activities under 34 this chapter, and must provide that it will remain in effect for at least 35 three (3) years following discontinuance of operations unless released earlier 36 by the director. 37 (3) In the event that a licensee under this chapter, or any employee or 38 agent ofasuch licensee, has violated any of the provisions of this chapter 39 or of a rule or order lawfully made pursuant to this chapter, or federal law 40 or regulation pertaining totheloan origination, mortgagebankinglending or 41 mortgage brokering activities set forth in section 26-3102, Idaho Code, and 42 has damaged any person by such violation, then the bond shall be forfeited and 43 paid by the surety to the state of Idaho for the benefit of any person so dam- 44 aged. 45 (4) (a) The director may adopt rules to require continuing education of 46 licensees under this chapter for the purpose of enhancing the professional 47 competence and the professional responsibility of all licensees. The rules 48 may include, but shall not be limited to, criteria for the content of con- 49 tinuing education courses, the accreditation of continuing education spon- 50 sors and programs, the computation of continuing education credits, and 51 general compliance with this subsection. 52 (b) Continuing professional education requirements shall be determined by 53 the director, provided however, the requirements shall not exceed twenty 54 (20) credit hours within a two (2) year period. 55 (c) The director may require accredited sponsors of continuing education 11 1 programs to file information, in a manner prescribed by the director, 2 regarding the contents and materials of proposed courses to satisfy the 3 education requirements with the director for review and approval. The 4 director may set fees for the initial and continuing review of courses for 5 which credit hours will be granted. The initial filing fee for review of 6 materials shall not exceed five hundred dollars ($500) and the fee for 7 continued review shall not exceed two hundred fifty dollars ($250) per 8 annum per course offered. 9 SECTION 10. That Section 26-3111, Idaho Code, be, and the same is hereby 10 amended to read as follows: 11 26-3111. RECORDS -- ANNUAL REPORTS -- RENEWAL OF LICENSE. (1) Every 12 licensee shall maintain records, including financial records, in conformity 13 with generally accepted accounting principles, in a manner that will enable 14 the director to determine whether the licensee is complying with the provi- 15 sions of this chapter. The recordkeeping system of a licensee shall be suffi- 16 cient if he makes the required information reasonably available. The records 17 need not be kept in the place of business where residential mortgage loans are 18 made, if the director is given free access to the records wherever located. 19 The records pertaining to any loan need not be preserved for more thanfive20 three (53) years after making the final entry relating to the loan. 21 (2) Any mortgage broker or mortgage lender licensee who employs or con- 22 tracts with a loan originator licensee, for the purpose of conducting loan 23 origination activities, shall: 24 (a) Notify the director of the employment of, or contractual relationship 25 with, a loan originator licensee within thirty (30) days of such employ- 26 ment or contract. Notification shall be made in a manner prescribed by the 27 director; 28 (b) Notify the director of the termination of employment of, or contrac- 29 tual relationship with, a loan originator licensee within thirty (30) days 30 of such termination. Notification shall be made in a manner prescribed by 31 the director; and 32 (c) Maintain any records relating to the employment of, or contractual 33 relationship with, a loan originator licensee, for a period not to exceed 34 three (3) years. 35 (3) On or before August 31 of each year, every mortgage broker and mort- 36 gage lender licensee under this chapter shall pay an annual license renewal 37 fee of one hundred fifty dollars ($1500), and file with the director a renewal 38 form containing such information as the director may require and a composite 39 annual report for the residential mortgage loans made or brokered by him. 40 (4) On or before October 31 of each year, every loan originator licensee 41 under this chapter shall pay an annual license renewal fee of one hundred dol- 42 lars ($100), and file with the director a renewal form containing such infor- 43 mation as the director may require. 44 SECTION 11. That Section 26-3112, Idaho Code, be, and the same is hereby 45 amended to read as follows: 46 26-3112. EXAMINATION AND INVESTIGATIONS. (1) The director shall examine 47 periodically at intervals he deems appropriate, the loans and business 48 records of each licensee. In addition, for the purpose of discovering viola- 49 tions of the provisions of this chapter or securing information lawfully 50 required, the director may at any time investigate the loans, business, books 51 and records of any such licensee. For these purposes, he shall have free and 12 1 reasonable access to the offices, places of business, and books and records of 2 the licensee. The director, for purposes of examination of licensees herein, 3 shall be paid the actual cost of examination by the licensee, within thirty 4 (30) days of the examination. 5 (2) If a licensee's records are located outside this state, the licensee 6 shall have the option to make them available to the director at a convenient 7 location within this state, or pay the reasonable and necessary expenses for 8 the director or his representative to examine them at the place where they are 9 maintained. The director may designate representatives, including comparable 10 officials of the state in which the records are located, to inspect them on 11 his behalf. 12 (3) For the purposes of this section, the director may administer oaths 13 or affirmations, and upon his own motion or upon request of any party, may 14 subpoena witnesses, compel their attendance, adduce evidence, and require the 15 production of any matter which is relevant to the investigation, including the 16 existence, description, nature, custody, condition, and location of any books, 17 documents, or other tangible things and the identity and location of persons 18 having knowledge of relevant facts, or any other matter reasonably calculated 19 to lead to the discovery of admissible evidence. 20 (4) Upon failure to obey a subpoena or to give testimony and upon reason- 21 able notice to all persons affected thereby the director may apply to the dis- 22 trict court for an order compelling compliance. 23 SECTION 12. That Section 26-3114, Idaho Code, be, and the same is hereby 24 amended to read as follows: 25 26-3114. PROHIBITED PRACTICES OF MORTGAGE BROKERS AND MORTGAGE LENDERS. 26 No mortgage broker or mortgage lender licensee or person required under this 27 chapter to haveasuch license shall: 28 (1) Obtain any exclusive dealing or exclusive agency agreement from any 29 borrower; 30 (2) Delay closing of any residential mortgage loan for the purpose of 31 increasing interest, costs, fees, or charges payable by the borrower; 32 (3) Accept any fees at closing which were not previously disclosed fully 33 to the borrower; 34 (4) Obtain any agreement or instrument in which blanks are left to be 35 filled in afterexecutionsigning by a borrower; 36 (5) Engage in any misrepresentation in connection with a residential 37 mortgage loan; 38 (6) Make payment, whether directly or indirectly, of any kind to any in- 39 house or fee appraiser for the purpose of influencing the independent judgment 40 of the appraiser with respect to the value of any real estate which is to be 41 covered by a residential mortgage loan; 42 (7) Make any false promises likely to influence or persuade, or pursue a 43 course of misrepresentations and false promises through loan originators or 44 other agents,solicitors,or through advertising or otherwise; 45 (8) Misrepresent, circumvent or conceal, through whatever subterfuge or 46 device, any of the material particulars or the nature thereof, regarding a 47 residential mortgage loan transaction;to which it is a party;nor 48 (9) Enter into any agreement, with or without the payment of a fee, to 49 fix in advance a particular interest rate or other term in a residential mort- 50 gage loan unless written confirmation of the agreement is delivered to the 51 borrower as required by rule pursuant to this chapter. 52 SECTION 13. That Chapter 31, Title 26, Idaho Code, be, and the same is 13 1 hereby amended by the addition thereto of a NEW SECTION, to be known and des- 2 ignated as Section 26-3114A, Idaho Code, and to read as follows: 3 26-3114A. PROHIBITED PRACTICES OF LOAN ORIGINATORS. No loan originator 4 licensee or person required under this chapter to have such license shall: 5 (1) Be employed simultaneously by more than one (1) mortgage broker or 6 mortgage lender licensed under this chapter; 7 (2) Enter into concurrent contractual relationships for delivery of loan 8 origination services to more than one (1) licensee under this chapter; 9 (3) Obtain any exclusive dealing or exclusive agency agreement from any 10 borrower; 11 (4) Delay closing of any residential mortgage loan for the purpose of 12 increasing interest, costs, fees, or charges payable by the borrower; 13 (5) Accept any fees at closing which were not previously disclosed fully 14 to the borrower; 15 (6) Obtain any agreement or instrument in which blanks are left to be 16 filled in after signing by a borrower; 17 (7) Engage in any misrepresentation in connection with a residential 18 mortgage loan; 19 (8) Make payment, whether directly or indirectly, of any kind to any in- 20 house or fee appraiser for the purpose of influencing the independent judgment 21 of the appraiser with respect to the value of any real estate which is to be 22 covered by a residential mortgage loan; 23 (9) Make any false promises likely to influence or persuade, or pursue a 24 course of misrepresentations and false promises through agents, solicitors, 25 advertising or otherwise; 26 (10) Misrepresent, circumvent or conceal, through whatever subterfuge or 27 device, any of the material particulars or the nature thereof, regarding a 28 residential mortgage loan transaction; nor 29 (11) Enter into any agreement, with or without the payment of a fee, to 30 fix in advance a particular interest rate or other term in a residential mort- 31 gage loan unless written confirmation of the agreement is delivered to the 32 borrower as required by rule pursuant to this chapter. 33 SECTION 14. That Section 26-3116, Idaho Code, be, and the same is hereby 34 amended to read as follows: 35 26-3116. INITIAL LICENSING AND COMPLIANCE. A person who conducts any of 36 the activities set forth in subsections (178) and (189) of section 26-3102, 37 Idaho Code, on the effective date of this act shall, within sixty (60) days 38 following the effective date of this act, apply to the department for a 39 license. 40 SECTION 15. That Chapter 31, Title 26, Idaho Code, be, and the same is 41 hereby amended by the addition thereto of a NEW SECTION, to be known and des- 42 ignated as Section 26-3116A, Idaho Code, and to read as follows: 43 26-3116A. INITIAL LOAN ORIGINATOR LICENSING. A person who conducts any of 44 the activities set forth in section 26-3102(20), Idaho Code, shall have sixty 45 (60) days to apply to the department for a loan originator license following 46 the effective date of the loan originator licensing provisions of this chapter 47 and, notwithstanding the provisions of section 26-3108A, Idaho Code, shall pay 48 an initial one (1) time reduced loan origination license application fee of 49 one hundred dollars ($100). 14 1 SECTION 16. This act shall be in full force and effect on and after July 2 1, 2004, provided however, that the loan originator licensing requirements set 3 forth in Section 7 of this act shall not become effective until the succeeding 4 January 1 following the legislative session in which the Legislature grants to 5 the Department of Finance a specific appropriation and approval of additional 6 department staffing for implementation of the loan originator licensing provi- 7 sions of this act and the Director of the Department of Finance files with the 8 Secretary of State certification that such appropriation and approval require- 9 ments have been satisfied.
Revised Statement of Purpose STATEMENT OF PURPOSE RS 14141 The purpose of this legislation is to establish licensing and educational requirements for all persons who originate residential mortgage loans and are not regulated under other laws of the state. This bill will provide for greater consumer protection. The bill also defines the relationship between a mortgage broker/banker and loan originators, making that relationship the same as described under Idaho Code as a real estate broker and sales associates and insurance broker and sales associates. The bill allows for continuing education requirements. FISCAL NOTE This bill is revenue neutral, calling for the establishment of license fees at a level to cover all administrative costs to the Department of Finance. It increases existing licensing fees to mortgage brokers. Contact: Name: Senator John W. Goedde Phone: 208-332-1000 STATEMENT OF PURPOSE/FISCAL NOTE S 1389 REVISED REVISED REVISE