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Massachusetts Broadens Licensees Subject To Record Keeping Requirements, Allows For Electronic Records
This week, the Massachusetts Consumer Affairs and Business Regulation Office, Division of Banks, released final amendments to the state’s licensee record keeping rules, intended to, among other things, “modernize the regulations that address electronic records.” The final amended regulations expand the state’s licensee record keeping requirements to include any person registered as a third party loan servicer, a check seller, or a foreign transmittal agency. The final amendments require licensed debt collectors and third party loan servicers to maintain records—including “a complete customer account history for each transaction”—for at least two years, and all other licensees to maintain records for at least three years. The amended regulations allow licensees to store books, records, and accounts as electronic records provided the electronic records are accessible for immediate examination through equipment available to the Commissioner of the Division of Banks or the Commissioner’s designees, and provided the licensee indicates in NMLS how its books, records, and accounts will be stored and made accessible to the Commissioner. The amended regulations become effective June 6, 2014.
Louisiana Expands Collection Of Data From Licensed Consumer Lenders
On May 28, Louisiana Governor Bobby Jindal signed SB 241, which expands the information and data the Commissioner of Financial Institutions can collect from licensed non-mortgage consumer lenders. Effective August 1, 2014, the Commissioner is authorized to collect from all such licensees information concerning the operation, function, and extent of all consumer loan activities, including: (i) the total number and dollar amount of consumer loans originated; (ii) the total number and dollar amount of consumer loans outstanding; (iii) the aggregate amount of fees earned including interest, service charges, late fees, origination fees, documentation fees, and insufficient funds fees; (iv) the total number of consumer loans in default or collection status and the balance of those loans as of the reporting date; and (v) the total number of consumer loans reduced to judgment and the principal amount of those judgments. Licensed companies will be required to report this information by March 1 of each year for the prior calendar year.
Maryland Expedites Licensing For Certain Mortgage Loan Originators
On May 15, Maryland Governor Martin O’Malley signed SB 1091, which expedites mortgage loan originator licensing in that state by requiring the Commissioner of Financial Regulation to waive the state’s criminal history records check for any applicant who was employed as a registered mortgage loan originator within 45 days before the date of application for a Maryland license. The change takes effect October 1, 2014. The bill is less sweeping than the version initially introduced, which would have allowed the Commissioner to issue transitional licenses to individuals licensed under the laws of another state.
New York DFS Superintendent Promises Scrutiny Of Nonbank Servicer Affiliates, Previews Originator Licensing Changes
On May 20, New York DFS Superintendent Benjamin Lawsky spoke during the Mortgage Bankers Association’s National Secondary Market Conference and extended his recent focus on nonbank mortgage servicers. As detailed in excerpts from the remarks he delivered, Mr. Lawsky specifically addressed concerns about ancillary services offered by nonbank mortgage servicer affiliates—e.g. vacant property inspections, short sales marketed through online auctions, foreclosure sales, and debt collection. He asserted that such arrangements put borrowers and investors at risk of becoming “fee factories” and promised to expand DFS’s investigation of ancillary services. Though not reflected in the excerpts released by the DFS, Mr. Lawsky also previewed changes intended to streamline the DFS’s application process for mortgage originator licenses and branch locations in an effort to reduce burden on licensees and improve processing times.
OCC Integrates Interagency Rules, Proposes Integrated Licensing Rules
On May 16, the OCC issued a final rule to integrate its interagency rules, which would combine, without any substantive amendments, rules related to consumer protection in insurance sales, BSA compliance, management interlocks, appraisals, disclosure and reporting of CRA-related agreements, and the FCRA. On May 21, the OCC issued a notice of proposed rulemaking to integrate the OCC’s licensing rules. The OCC states that for many of the licensing rules, the proposal incorporates the licensing provisions for federal savings associations into the existing national bank rule, but in other cases, the proposal includes separate rules for national banks and federal savings associations because the rules do not apply to both charters, are better organized as separate rules, or are difficult to integrate because of their differences and complexity. Some rules that would continue to apply only to national banks are revised to be consistent with the changes proposed for federal savings associations. The OCC also proposes substantive changes to certain licensing rules to “eliminate unnecessary requirements, promote fairness in supervision, and further the safe and sound operation of the institutions the OCC supervises.”
California DBO Announces New Online Portal For Certain Licensees
On May 19, the California Department of Business Oversight announced it will transition certain license application and maintenance functions to a new online system. Beginning June 18, 2014, companies and individuals seeking licensure under the California Finance Lenders Law, the California Deferred Deposit Transaction Law, and the Escrow Law will visit a new online self-service portal to (i) submit applications for licensure; (ii) view the status of their license application; (iii) submit Annual Report information; and (iv) update contact information. Later this year licensees will be able to pay application, renewal, and qualification fees using this portal.
Court Rules Commercial Real Estate Broker Can't Collect Commission Because Of Involvement Of Unlicensed Salesperson
Last month, the U.S. District Court for the Eastern District of Virginia held that a state-licensed real estate company was unable to collect its commission on a real estate lease transaction because a key employee involved in the lease transaction was not licensed as a real estate sales person. The real estate company, which is appealing the decision, sued a property owner last year for breach of contract after the property owner refused to pay a $6.6 million commission on a transaction the real estate company negotiated as the exclusive leasing agent for the property owner. The property owner originally asserted that the total commission owed was substantially lower, based on what it claimed were oral agreements that were reflected in the written submissions made to the tenant. However, during discovery in the case, the property owner learned at least one of the real estate companys employees involved in the leasing transaction was not licensed as real estate salesperson or broker and asserted that as such, the real estate company is not entitled to receive any commission. As the court explained, Virginia law requires that every employee or independent contractor who acts as a salesperson for a brokerage firm, such as [the real estate company in this case], holds a license as a real estate salesperson or broker[] and that [n]o individual shall act as a broker without a real estate broker's license from the Board. The company did not contest that the employee at issue was unlicensed, but rather argued that the employee did not engage in activities that required licensing. In the companys view, state law requires a license only to make an offer to lease or to negotiate or enter into a lease, and that in this case the formal lease offers were made by and in the name of the property owner, not the real estate company or any of its employees. The court rejected the companys interpretation of the statute, explaining that such a narrow, hyper-formalistic reading of the licensing requirements would effectively eliminate the need for a license by most persons centrally involved in a leasing transaction on behalf of an owner. The court reasoned that the statutes definitions, as reflected in the range of activities a licensee is authorized to perform and the limited scope of services an unlicensed person can provide, are clearly intended to capture the realities and breadth of activities that make up the leasing process, not the specific, more formal events necessary to consummate a transaction. The court held that even though the company was licensed as a real estate broker, it was prohibited from receiving any commission it otherwise would be entitled to receive under its agreement with the property owner because the individual employee lacked the required license. The court acknowledged that there is no explicit statute or judicial decision that imposes such a prohibition under Virginia law, but concluded easily based on public policy that an individuals failure to have a license precludes the company from receiving any commission in this case. The court explained that (i) the companys license did not cover the individual; (ii) the company certified that its covered employees would hold the required license, and (iii) the company had a statutory duty to ensure that its services were carried out in accordance with the state licensing requirements. The company recently filed a notice that it is appealing the case to the Fourth Circuit; briefing has not yet commenced.
Maryland Adds Training, Disclosure Requirements For Money Transmitters
On May 5, Maryland Governor Martin O’Malley signed HB 723, which requires state licensed money transmitters to (i) provide on transmittal forms a clear, concise, and conspicuous fraud warning that includes a toll-free telephone number for individuals to call to report fraud or suspected fraud; (ii) provide annual training to agents related to financial abuse and financial exploitation of elders; and (iii) allow an individual to voluntarily be disqualified from sending or receiving money transmissions in the state for a specified period of time. The changes, which take effect October 1, 2014, do not apply to a licensee or an agent that engages (i) in selling or issuing stored value devices, traveler’s checks, or money orders, or providing bill payer services, as long as the licensee or agent does not engage in any other business regulated under the money transmission law; or (ii) in the business of money transmission solely through the Internet.
Missouri Division Of Finance Transitions Mortgage Company Licensing To NMLS
Recently, the Missouri Division of Finance announced that all mortgage company and branch licenses issued through the Division will transition to the Nationwide Mortgage Licensing System (NMLS). All currently licensed companies must transition their licenses to the NMLS by October 1, 2014, and effective June 2, 2014, new company license applicants must request licensure through the NMLS. The NMLS will host a transition training webinar on June 5, 2014 for all currently licensed mortgage companies.
New York AG Action Targets Out-Of-State Retail Installment Obligation Finance Companies
On April 30, New York Attorney General (AG) Eric Schneiderman announced that four out-of-state companies alleged to have financed retail installment obligations (RIOs) at rates in excess of the state’s usury cap agreed to recast the RIOs at a rate of not more than 16% and provide repayment or credits to impacted New York consumers. The settlements are the latest in a series of actions in New York targeting out-of-state or online lenders and finance companies that make loans in New York without obtaining a license to operate in that state.
The companies financed elective medical and surgical procedures through RIOs offered by medical providers to patients, an activity the AG believes required the companies to obtain a state license to operate as sales finance companies or lenders. The AG’s Health Care Bureau initiated the investigation after it received complaints about an online lead generation site. As described in the AG’s release, that lead generator requested information regarding a consumer’s employment and credit history, automatically set the APR and RIO repayment terms, and submitted the completed application to sales finance companies. The AG explains that once a finance company agreed to purchase the RIO, the medical provider and the patient both signed a financing agreement that the medical provider immediately assigned to the finance company. The finance company then transferred the funds to the medical provider who agreed to accept less than their usual and customary fees in exchange for upfront payments from the finance company. The patient, however, would be required to repay to the financier full fees plus interest, which in this case allegedly exceeded the statutory usury cap, up to 55% in some instances. State law restricts unlicensed lenders to charging an APR of up to 16%, and establishes criminal penalties for unlicensed lenders that charge interest at a rate exceeding 25% APR.
In addition to revising existing loans and providing approximately $230,000 in remediation to 317 consumers, the agreements require the companies to (i) collectively pay $35,000 in penalties; (ii) cease all conduct as unlicensed sales finance companies in New York; and (iii) notify any consumer reporting agencies to which they gave consumer information to delete all references to the transactions from customers’ credit records. The agreements do not include any criminal penalties.
In addition to extending the state’s licensing enforcement focus, this is at least the second financial services case initiated in recent months by the AG’s Health Care Bureau. In June 2013, the AG announced a settlement with a credit card issuer related to alleged illegal deferred interest products offered through medical provider offices.