07 LC 28
3242
House
Bill 718
By:
Representative Holmes of the
61st
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Article 13 of Chapter 1 of Title 7 of the Official Code of Georgia
Annotated, relating to licensing of mortgage lenders and mortgage brokers, so as
to provide for authorization of mortgage loan officers; to provide for a
definition; to provide for procedures, conditions, and limitations; to provide
for powers, duties, and authority of the Department of Banking and Finance; to
provide for other matters relative to the foregoing; to provide an effective
date; to repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Article
13 of Chapter 1 of Title 7 of the Official Code of Georgia Annotated, relating
to licensing of mortgage lenders and mortgage brokers, is amended by revising
Code Section 7-1-1000, relating to definitions, as follows:
"7-1-1000.
(a)
This article shall be known and may be cited as the 'Georgia Residential
Mortgage Act.'
(b)
As used in this article, the term:
(1)
'Affiliate' or 'person affiliated with' means, when used with reference to a
specified person, a person who directly, indirectly, or through one or more
intermediaries controls, is controlled by, or is under common control with the
person specified. Any beneficial owner of 20 percent or more of the combined
voting power of all classes of voting securities of a person or any executive
officer, director, trustee, joint venturer, or general partner of a person is an
affiliate of such person unless the shareholder, executive officer, director,
trustee, joint venturer, or general partner shall prove that he or she in fact
does not control, is not controlled by, or is not under common control with such
person.
(2)
'Audited financial statement' means the product of the examination of financial
statements in accordance with generally accepted auditing standards by an
independent certified public accountant, which product consists of an opinion on
the financial statements indicating their conformity with generally accepted
accounting principles.
(3)
'Commitment' or 'commitment agreement' means a statement by a lender required to
be licensed or registered under this article that sets forth the terms and
conditions upon which the lender is willing to make a particular mortgage loan
to a particular borrower.
(4)
'Control,' including 'controlling,' 'controlled by,' and 'under common control
with,' means the direct or indirect possession of the power to direct or cause
the direction of the management and policies of a person, whether through the
ownership of voting securities, by contract, or otherwise.
(5)
'Executive officer' means the chief executive officer, the president, the
principal financial officer, the principal operating officer, each vice
president with responsibility involving policy-making functions for a
significant aspect of a person´s business, the secretary, the treasurer, or
any other person performing similar managerial or supervisory functions with
respect to any organization whether incorporated or unincorporated.
(6)
'Extortionate means' means the use or the threat of violence or other criminal
means to cause harm to the person, reputation of the person, or property of the
person.
(6.1)
'Georgia Residential Mortgage Act' means this article.
(7)
'License' means a license issued by the department under this article to act as
a mortgage lender or mortgage broker.
(7.1)
'Loan officer' means a person who acts as an employee and not as an independent
contractor to assist a licensee in performing one or more of the following
activities to or for a consumer: accepting or offering to accept a mortgage
loan application, soliciting a mortgage loan, negotiating the terms or
conditions of a mortgage loan, issuing mortgage loan commitments or interest
rate guarantee agreements, or advising on any aspect of a mortgage loan
transaction, whether such acts are done through contact by telephone, by
electronic means, by mail, or in person with consumers. Such term shall not
include or apply to a lender or broker who is an approved FHA Title II
supervised, nonsupervised, government, or loan correspondent mortgagee with an
audited net worth of at least $150,000.00.
(8)
'Lock-in agreement' means a written agreement whereby a lender or a broker
required to be licensed or registered under this article guarantees for a
specified number of days or until a specified date the availability of a
specified rate of interest for a mortgage loan, a specified formula by which the
rate of interest will be determined, or a specific number of discount points if
the mortgage loan is approved and closed within the stated period of
time.
(9)
'Makes a mortgage loan' means to advance funds, offer to advance funds, or make
a commitment to advance funds to an applicant for a mortgage loan.
(10)
'Misrepresent' means to make a false statement of a substantive fact.
Misrepresent may also mean to intentionally engage in any conduct which leads to
a false belief which is material to the transaction.
(11)
'Mortgage broker' means any person who directly or indirectly solicits,
processes, places, or negotiates mortgage loans for others, or offers to
solicit, process, place, or negotiate mortgage loans for others or who closes
mortgage loans which may be in the mortgage broker´s own name with funds
provided by others and which loans are assigned within 24 hours of the funding
of the loans to the mortgage lenders providing the funding of such
loans.
(12)
'Mortgage lender' means any person who directly or indirectly makes, originates,
or purchases mortgage loans or who services mortgage loans.
(13)
'Mortgage loan' means a loan or agreement to extend credit made to a natural
person, which loan is secured by a deed to secure debt, security deed, mortgage,
security instrument, deed of trust, or other document representing a security
interest or lien upon any interest in one-to-four family residential property
located in Georgia, regardless of where made, including the renewal or
refinancing of any such loan.
(14)
'Person' means any individual, sole proprietorship, corporation, limited
liability company, partnership, trust, or any other group of individuals,
however organized.
(15)
'Registrant' means any person required to register pursuant to Code Sections
7-1-1001 and 7-1-1003.2.
(16)
'Residential property' means improved real property used or occupied, or
intended to be used or occupied, as the principal residence of a natural person.
Such term does not include rental property or second homes.
(17)
'Service a mortgage loan' means the collection or remittance for another or the
right to collect or remit for another of payments of principal, interest, trust
items such as insurance and taxes, and any other payments pursuant to a mortgage
loan.
(18)
'Ultimate equitable owner' means a natural person who, directly or indirectly,
owns or controls an ownership interest in a corporation or any other form of
business organization, regardless of whether such natural person owns or
controls such ownership interest through one or more natural persons or one or
more proxies, powers of attorney, nominees, corporations, associations, limited
liability companies, partnerships, trusts, joint-stock companies, other entities
or devices, or any combination thereof."
SECTION
2.
Said
article is further amended by revising paragraph (11) of Code Section 7-1-1001,
relating to exemption for certain persons and entities, as follows:
"(11)
A natural person
who is not a
loan officer and who is employed by a
licensed mortgage broker, a licensed mortgage lender, or any person exempted
from the licensing requirements of this article when acting within the scope of
employment and under the supervision of the licensee or exempted person as an
employee and not as an independent contractor. To be exempt, a natural person
must be employed by only one such employer and must be at all times eligible for
employment in compliance with the provisions and prohibitions of Code Section
7-1-1004. All
employees, including loan officers, must be at all times eligible for employment
in compliance with the provisions and prohibitions of Code Section
7-1-1004;".
SECTION
3.
Said
article is further amended by inserting new subsections (d), (e), (f), and (g)
at the end of Code Section 7-1-1002, relating to prohibition of transaction of
business without a license, to read as follows:
"(d)(1)
On or after July 1, 2007, it is unlawful for any natural person to act as a loan
officer without first obtaining authorization from the department. The
department may provide for a phase-in of currently qualified persons. Loan
officers may obtain authorization by:
(A)
Providing to their employer a background check, dated within 90 days from date
of initial employment from the Georgia Crime Information Center, which shows no
offenses prohibited in Code Section 7-1-1004; and
(B)
Providing to their employer certification of the education or experience
required by Georgia law and regulation. Such requirements shall include at
least one year of experience immediately preceding July 1, 2007, performing one
or more duties of a loan officer for a licensee or exemptee. In the
alternative, satisfactory completion of a minimum of eight hours of education in
accordance with education requirements for licensed mortgage brokers shall
satisfy the loan officer education requirements of this subparagraph. Providers
of education shall be approved by the department and may not certify
satisfactory completion of loan officer education requirements until such loan
officer has passed a test reflecting comprehension of the material.
(2)
An employer shall provide a current list to the department of all loan officers
who have met the requirements of this subsection. Employers shall be required
to check the department´s website to verify that no disqualifying final
orders have been issued against any prospective loan officer.
(3)
It is unlawful for any person to employ or compensate a loan officer unless the
loan officer has met the requirements for being authorized by the department as
provided in this subsection.
(e)
The authorization of a loan officer shall not be effective during any period
when the loan officer is not employed by a mortgage broker or mortgage lender
licensed under this article. When a loan officer ceases to be employed by a
mortgage broker or mortgage lender licensed under this article, the loan officer
and the mortgage broker or mortgage lender licensed under this article by whom
that person is employed shall promptly notify the department in writing. When a
loan officer is to be employed, the employer shall promptly notify the
department of the hiring and certify to the employee´s qualifications as
provided in this Code section. A loan officer shall not be employed
simultaneously by more than one mortgage broker or mortgage lender licensed
under this article.
(f)
Each mortgage broker or mortgage lender licensed under this article shall
maintain on file with the department a list of all loan officers who are
qualified and employed with the mortgage broker or mortgage lender. The
department shall maintain on its website the ongoing list of all authorized loan
officers."
SECTION
4.
Said
article is further amended by revising subsections (c), (d), and (i) of Code
Section 7-1-1004, relating to requirements relative to licensees and
registrants, as follows:
"(c)
The department may establish by rule or regulation minimum education or
experience requirements for an applicant for a mortgage broker license or
renewal of such a license
or for an
authorized loan officer.
(d)
The department may not issue or may revoke a license
or
authorization if it finds that the
applicant or licensee, or any person who is a director, officer, partner, agent,
employee, or ultimate equitable owner of 10 percent or more of the applicant or
licensee or any individual who directs the affairs or establishes policy for the
applicant or licensee, has been convicted of a felony involving moral turpitude
in any jurisdiction or of a crime which, if committed within this state, would
constitute a felony involving moral turpitude under the laws of this state. For
the purposes of this article, a person shall be deemed to have been convicted of
a crime if such person shall have pleaded guilty to a charge thereof before a
court or federal magistrate or shall have been found guilty thereof by the
decision or judgment of a court or federal magistrate or by the verdict of a
jury, irrespective of the pronouncement of sentence or the suspension thereof,
and regardless of whether first offender treatment without adjudication of guilt
pursuant to the charge was entered, unless and until such plea of guilty, or
such decision, judgment, or verdict, shall have been set aside, reversed, or
otherwise abrogated by lawful judicial process or until probation, sentence, or
both probation and sentence of a first offender have been successfully completed
and documented or unless the person convicted of the crime shall have received a
pardon therefor from the President of the United States or the governor or other
pardoning authority in the jurisdiction where the conviction was had or shall
have received an official certification or pardon granted by the State Board of
Pardons and Paroles which removes the legal disabilities resulting from such
conviction and restores civil and political rights in this
state."
"(i)
The department may not issue a license to and may revoke a license from an
applicant or licensee if such person employs any other person against whom a
final cease and desist order has been issued within the preceding three years,
if such order was based on a violation of Code Section 7-1-1013 or based on the
conducting of a mortgage business without a required license
or
authorization, or whose license has been
revoked within three years of the date such person was hired. Each applicant
and licensee shall, before hiring an employee, examine the department´s
public records to determine that such employee is not subject to the type of
cease and desist order described in this subsection."
SECTION
5.
Said
article is further amended by revising subsection (b) of Code Section 7-1-1005,
relating to renewal of licenses and registrations, as follows:
"(b)
Any licensee or registrant making proper application, including all supporting
documents,
list of loan
officers, moneys owed to the department,
and all applicable fees required by this article and any regulations promulgated
by the department, for a license or registration renewal to operate during the
following license year and filing the application prior to April 1 shall be
permitted to continue to operate pending final approval or disapproval of the
application for the license or registration renewal for the following year if
final approval or disapproval is not granted prior to July 1."
SECTION
6.
Said
article is further amended by revising Code Section 7-1-1011, relating to annual
fees, as follows:
"7-1-1011.
(a)
The department may, by regulation, prescribe annual fees to be paid by
licensees,
and
registrants,
and persons
required to be authorized under this
article, which fees shall be set at levels
necessary to defray costs and expenses incurred by the state in providing the
examinations and supervision required by this article and which fees may vary
according to whether a person is a
licensee,
or
registrant, or
person required to be authorized under this
article or is a mortgage broker or a
mortgage lender and according to the class of license issued to a mortgage
broker or mortgage lender.
(b)(1)
As used in this subsection, the term 'collecting agent' means the person listed
as the secured party on a security deed or other loan document that establishes
a lien on the residential real property taken as collateral at the time of the
closing of the mortgage loan transaction.
(2)
There shall be imposed on the closing of every mortgage loan subject to
regulation under this article which, as defined in Code Section 7-1-1000,
includes all mortgage loans, whether or not closed by a licensee or registrant,
a fee of $6.50. The fee shall be paid by the borrower to the collecting agent
at the time of closing of the mortgage loan transaction. The collecting agent
shall remit the fee to the department at the time and in the manner specified by
regulation of the department. Revenue collected by the department pursuant to
this subsection shall be deposited in the general fund of the
state.
(3)
The fee imposed by this subsection shall be a debt from the borrower to the
collecting agent until such assessment is paid and shall be recoverable at law
in the same manner as authorized for the recovery of other debts. Any
collecting agent who neglects, fails, or refuses to collect the fee imposed by
this subsection shall be liable for the payment of the fee."
SECTION
7.
Said
title is further amended by revising Code Section 7-1-1013, relating to the
prohibition of certain acts, as follows:
"7-1-1013.
It
is prohibited for any person transacting a mortgage business in or from this
state, including any person required to be
licensed,
or
registered, or
authorized under this article and any
person exempted from the licensing or registration requirements of this article
under Code Section 7-1-1001, to:
(1)
Misrepresent the material facts, make false statements or promises, or submit
false statements or documents likely to influence, persuade, or induce an
applicant for a mortgage loan, a mortgagee, or a mortgagor to take a mortgage
loan, or, through agents or otherwise, pursue a course of misrepresentation by
use of fraudulent or unauthorized documents or other means to the department or
anyone;
(2)
Misrepresent or conceal or cause another to misrepresent or conceal material
factors, terms, or conditions of a transaction to which a mortgage lender or
broker is a party, pertinent to an applicant or application for a mortgage loan
or a mortgagor;
(3)
Fail to disburse funds in accordance with a written commitment or agreement to
make a mortgage loan;
(4)
Improperly refuse to issue a satisfaction of a mortgage loan;
(5)
Fail to account for or deliver to any person any personal property obtained in
connection with a mortgage loan such as money, funds, deposit, check, draft,
mortgage, or other document or thing of value which has come into the possession
of the mortgage lender or broker and which is not the property of the mortgage
lender or broker, or which the mortgage lender or broker is not in law or at
equity entitled to retain;
(6)
Engage in any transaction, practice, or course of business which is not in good
faith or fair dealing, or which operates a fraud upon any person, in connection
with the attempted or actual making of, purchase of, transfer of, or sale of any
mortgage loan;
(7)
Engage in any fraudulent home mortgage underwriting practices;
(8)
Induce, require, or otherwise permit the applicant for a mortgage loan or
mortgagor to sign a security deed, note, loan application, or other pertinent
financial disclosure documents with any blank spaces to be filled in after it
has been signed, except blank spaces relating to recording or other incidental
information not available at the time of signing;
(9)
Make, directly or indirectly, any residential mortgage loan with the intent to
foreclose on the borrower´s property. For purposes of this paragraph, there
is a presumption that a person has made a residential mortgage loan with the
intent to foreclose on the borrower´s property if the following
circumstances can be demonstrated:
(A)
Lack of substantial benefit to the borrower;
(B)
Lack of probability of full payment of the loan by the borrower;
and
(C)
A significant proportion of similarly foreclosed loans by such
person;
(10)
Provide an extension of credit or collect a mortgage debt by extortionate means;
or
(11)
Purposely withhold, delete, destroy, or alter information requested by an
examiner of the department or make false statements or material
misrepresentations to the department."
SECTION
8.
Said
article is further amended by revising Code Section 7-1-1018, relating to cease
and desist orders, as follows:
"7-1-1018.
(a)
Whenever it shall appear to the department that any person required to be
licensed,
authorized, or registered or required to
file a notification statement under this article or employed by a licensee or
registrant pursuant to Code Section 7-1-1001 or who would be covered by the
prohibitions in Code Section 7-1-1013 has violated any law of this state or any
order or regulation of the department, the department may issue an initial
written order requiring such person to cease and desist immediately from such
unauthorized practices. Such cease and desist order shall be final 20 days
after it is issued unless the person to whom it is issued makes a written
request within such 20 day period for a hearing. The hearing shall be conducted
in accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure
Act.' A cease and desist order to an unlicensed
or
unauthorized person that orders them to
cease doing a mortgage business without the appropriate license
or department
authorization shall be final 30 days from
the date of issuance, and there shall be no opportunity for an administrative
hearing. If the proper license or evidence of exemption or valid employment
status during the time of the alleged offense is delivered to the department
within the 30 day period, the order shall be rescinded by the department. If a
cease and desist order is issued to a person who has been sent a notice of bond
cancellation and if the bond is reinstated or replaced and such documentation is
delivered to the department within the 30 day period following the date of
issuance of the order, the order shall be rescinded. If the notice of
reinstatement of the bond is not received within the 30 days, the license shall
expire at the end of the 30 day period and the person shall be required to make
a new application for license and pay the applicable fees. In the case of an
unlawful purchase of mortgage loans, such initial cease and desist order to a
purchaser shall constitute the knowledge required under subsection (b) of Code
Section 7-1-1002 for any subsequent violations.
(b)
Whenever a person shall fail to comply with the terms of an order of the
department which has been properly issued under the circumstances, the
department, upon notice of three days to such person, may, through the Attorney
General, petition the principal court for an order directing such person to obey
the order of the department within the period of time as shall be fixed by the
court. Upon the filing of such petition, the court shall allow a motion to show
cause why it should not be granted. Whenever, after a hearing upon the merits
or after failure of such person to appear when ordered, it shall appear that the
order of the department was properly issued, the court shall grant the petition
of the department.
(c)
Any person who violates the terms of any order issued pursuant to this Code
section shall be liable for a civil penalty not to exceed $1,000.00. Each day
during which the violation continues shall constitute a separate offense. In
determining the amount of penalty, the department shall take into account the
appropriateness of the penalty relative to the size of the financial resources
of such person, the good faith efforts of such person to comply with the order,
the gravity of the violation, the history of previous violations by such person,
and such other factors or circumstances as shall have contributed to the
violation. The department may at its discretion compromise, modify, or refund
any penalty which is subject to imposition or has been imposed pursuant to this
Code section. Any person assessed as provided in this subsection shall have the
right to request a hearing into the matter within ten days after notification of
the assessment has been served upon the person involved; otherwise, such penalty
shall be final except as to judicial review as provided in Code Section
7-1-90.
(d)
Initial judicial review of the decision of the department entered pursuant to
this Code section or Code Section 7-1-1017 shall be available solely in the
superior court of the county of domicile of the department.
(e)
All penalties and fines recovered by the department as authorized by subsection
(g) of this Code section shall be paid into the state treasury to the credit of
the general fund; provided, however, that the department at its discretion may
remit such amounts recovered, net of the cost of recovery, if it makes an
accounting of all such costs and expenses of recovery in the same manner as
prescribed for judgments received through derivative actions pursuant to the
provisions of Code Section 7-1-441.
(f)
For purposes of this Code section, the term 'person' includes any officer,
director, employee, agent, or other person participating in the conduct of the
affairs of the person subject to the orders issued pursuant to this Code
section.
(g)
In addition to any other administrative penalties authorized by this article,
the department may, by regulation, prescribe administrative fines for violations
of this article and of any rules promulgated by the department pursuant to this
article."
SECTION
9.
This
Act shall become effective on July 1, 2007.
SECTION
10.
All
laws and parts of laws in conflict with this Act are repealed.
