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This topic consolidates legislative summaries of new and revised state laws pertaining to licensing, originating, and servicing mortgage loans. 

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March 15, 2019

State, Local MBAs Partner to Improve Missouri Guidelines & Lender Reviews

MBA Newslink--Mike Sorohan

What began as a simple query at the 2018 Mortgage Bankers Association Independent Mortgage Bankers Conference turned into a cooperative effort among state and local MBAs in eight Midwestern states that resulted in changes to a Missouri program making it easier for first-time home buyers to obtain mortgage financing.

The collaboration resulted in the St. Louis MBA and the Missouri Mortgage Bankers Association successfully lobbying the Missouri Housing Development Commission into changing bond requirements for its first-time home buyers program. MHDC also eased reporting requirements for applicants, allowing participating lenders to streamline the applications process and increase revenues to lenders to make it a more viable program.

"This was a major victory for us," said Joseph Bayer Jr., Executive Vice President with First Integrity Mortgage Services, St. Louis, and former President of the St. Louis MBA. "We were able to make a compelling case to MHDC, thanks to our relationships with other state and local MBAs and MHDC."

In Missouri, the "First Place" program gives first-time homebuyers and qualified veterans assistance in purchasing a home through affordable interest rates, in combination with down payment and closing costs offered by MHDC. The "Next Step" program gives first-time homebuyers as well as non-first time homebuyers the opportunity to purchase their own home with higher income limits and purchase price limits. It also gives the borrower the opportunity to receive cash assistance for down payment and closing cost assistance.

The problem, Bayer said, was twofold. Lenders participating in the program said their back-end fees and penalties (which help to fund the program) were too high, discouraging lenders from participating. Additionally, Bayer said the paperwork required from consumers to participate served as a deterrent, leaving the programs underutilized. Additionally, Bayer said, revenues were significantly lower than in other states and significantly lower than similar loan programs.

The issue percolated at the 2018 MBA IMB Conference in Amelia Island, Fla. During a roundtable discussion, Bayer ask if any other participants were having problems involving revenue and costs with their state bond programs.

Jeff Brader, Regional Vice President with Union Home Mortgage, Westerville, Ohio, and former President of the Ohio Mortgage Bankers Association, offered that they'd experienced a similar problem and had worked with the State of Ohio to find a satisfactory solution. "I met with Jeff afterward to brainstorm," Bayer said. "We discussed some specifics and strategies about how they got it to work in Ohio, and I was determined to try it in Missouri."

At the time, Bayer was President of the St. Louis MBA (the second-oldest MBA in the country). "At the next board meeting I went after this," he said. "The board agreed to try it. I worked with our lobbyist, Doug Nelson of Lathrop Gage, and took it to the state MBA and got their buy-in as well; they agreed to back us.

The next step was a meeting with representatives of the MHDC; Bayer was joined at the meeting with several St. Louis MBA Missouri MBA member companies. "The Commission heard our concerns and were receptive," he said.

At the Commission's request, and to bolster its case, the St. Louis MBA reached out to MBAs in bordering states, asking for comparative data. Seven states and several local MBAs responded; as a result, Bayer learned that of the eight states, Missouri ranked seventh in bond revenues--proof that lenders in the state were at a disadvantage.

"We offered the Commission suggestions to improve revenues for both MHDC and the participating lenders and get a better reception," Bayer said. "We argued that it would give them more business, not us."

The Commission was willing to be accommodating, but it requested more data, based on business at the lender level. That's when Bayer turned to the national MBA in Washington. "Marina Walsh [MBA Vice President of Industry Analysis] provided the information we needed in four hours," he said. "It was great--they pulled a rabbit out of the hat. They were wonderful!"

As a result, Bayer said, the Commission increased overall compensation by nearly a point and eased guidelines for lenders. Additionally, the Commission is working with the state's master servicer, based in Alabama, to reduce approval times, easing burdens for both lenders and program applicants.

The programs are definitely more consumer-friendly, Bayer said. Starting in 2019 MHDC will no longer require tax returns for any of its programs. In lieu of tax returns the lenders will sign the new lender certificate (form #520) that will state that the lender has reviewed the credit reports from all three credit bureaus and has verified that no report has any indication the borrower has incurred indebtedness to a principal residence within the past three years. Additionally, MHDC will no longer have to count the income from any non-borrowing person other than a spouse. This means boyfriends or girlfriends not on the loan will not be counted as part of the household nor will we count their income for maximum income limits. However, a spouse living in the home will be counted as well as their income even if they are being left off the loan. Only biological children or adopted children of the borrower can be counted as a household member when counting number of persons in the house.

Bayer, who said he wanted the issue to be resolved before the end of 2018, when his term as St. Louis MBA President expired, said he was grateful to the Ohio MBA, the MBAs from Missouri border states and the national MBA for their help and cooperation, as well as local member companies that wrote letters of support.

"It's all about relationships," Bayer said. "We look forward to making 2019 a great year for homeownership in the state of Missouri."

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March 13, 2019

North Dakota Modifies Provisions Regarding Revised Uniform Law on Notarial Acts

North Dakota House Bill 1110 creates and enacts section 44-06.1-13.1 and a new section to chapter 44-06.1 of the North Dakota Century Code, relating to the adoption of the Revised Uniform Law on Notarial Acts; and to amend and reenact sections 11-18-15, 44-06.1-01, 44-06.1-03, 44-06.1-18, and 47-19-26 of the North Dakota Century Code, relating to the adoption of the Revised Uniform Law on Notarial Acts.

These provisions are effective on August 1, 2019.

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March 13, 2019

Wyoming Amends Provisions Regarding Foreclosure

Wyoming House Bill 290 modifies provisions relating to the sale and redemption of realty sold under mortgage foreclosure or execution; authorizes a certificate of sale as specified; and creates a purchaser's right of entry as specified.

  • Section 1. W.S. 1-18-103(a) is amended to read "On payment of this amount the sale and certificate granted are void and the sheriff or other officer shall issue a certificate of redemption."
  • Section 1. W.S. 1-18-103(c) is amended to read "The term "agricultural real estate" means any single parcel of land in excess of eighty (80) acres lying outside the exterior boundaries of any incorporated city, town or recorded subdivision or any property that is used substantially for agricultural purposes, which, if combined with other property in the mortgage that is used substantially for agricultural purposes, equals eighty (80) acres or more in aggregate."
  • Section 1. W.S. 1-18-111 is amended to add a new section "(b) Upon the sale of the premises, a purchaser shall have a limited right of entry to ensure the property does not significantly deteriorate during the full redemption period. As used in this subsection, "limited right of entry" means entrance into the premises which is not occupied by a legal inhabitant."

These provisions are effective on July 1, 2019.

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March 12, 2019

Nebraska Modifies Provisions Regarding Uniform Power of Attorney Act

Nebraska Legislature Bill 146 amends section 30-4020, Reissue Revised Statutes of Nebraska; to change liability provisions for refusal to accept an acknowledged power of attorney; and to repeal the original section.

These provisions are effective on September 6, 2019.

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March 12, 2019

Nebraska Amends Provisions Regarding Residential Mortgage Licensing Act

Nebraska Legislature Bill 355 makes multiple licensing requirement updates. 

  • Amends sections 45-340 and 2 45-705, Reissue Revised Statutes of Nebraska, and sections 8-2737, 45-335, 45-346, 45-346.01, 45-348, 45-727, 45-734, and 45-737,  Revised Statutes Cumulative Supplement, 2018; 
  • Changes provisions relating to licensee and authorized delegate examinations under the Nebraska Money Transmitters Act; 
  • Defines a term, updates a reference to salespersons, and changes certain license and fee provisions under the Nebraska Installment Sales Act; 
  • Changes mortgage banker license application provisions, provides for temporary powers as a mortgage loan originator licensee as prescribed, changes inactive mortgage loan originator licensee provisions, and changes certain mortgage banker licensee recordkeeping duties under the Residential Mortgage Licensing Act;
  • Provides operative dates; and 
  • Repeals the original sections.

These provisions are effective from September 6, 2019 to January 2, 2020.

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March 08, 2019

CSBS AGREES TO IMPLEMENT RECOMMENDATIONS FROM FINTECH ADVISORY PANEL

Ballard Sparh, LLP--John D. Socknat & Stacey L. Valerio

The Conference of State Bank Supervisors (CSBS) announced last week that it has agreed to implement 14 recommendations made by its Fintech Industry Advisory Panel (Advisory Panel).

The Advisory Panel was formed in 2017 to identify actionable steps for improving state licensing, regulation, and non-depository supervision and for supporting innovation in financial services. It has 33 Fintech company members that engage with the CSBS Emerging Payments and Innovation Task Force and other state regulators. The Advisory Panel has a subgroup focused on lending and another focused on payments. Both subgroups submitted reports that formed the basis of the recommendations CSBS has agreed to implement.

Those recommendations primarily address creating uniform definitions and practices, increasing transparency, and expanding the use of common technology among all state regulators. Among the actions CSBS has agreed to take to implement the recommendations are:

  • Developing a 50-state model law to license money services businesses
  • Creating a standardized call report for consumer finance businesses
  • Building an online database of state licensing and Fintech guidance, while encouraging a common standard
  • Developing a new technology offering, a State Examination System, to simplify examinations of nonbanks operating in more than one state
  • Expanding the use of the Nationwide Multistate Licensing System (NMLS) among all state regulators and to all nonbank industries supervised at the state level

    At the annual NMLS conference in Orlando, CSBS and the Advisory Panel's payments subgroup reported that in connection with efforts to harmonize state licensing regimes and ultimately to draft a model state law for licensing money services businesses, CSBS is conducting state surveys relating to existing state definitions and exemptions from licensure and will publish such surveys when complete.

    The CSBS initiative is undoubtedly in part a reaction to the OCC's decision to grant special purpose national bank charters to Fintech companies. Such charters would eliminate the need for Fintech companies to obtain multi-state licenses. In October 2018, CSBS filed a second lawsuit in D.C. federal district court to stop the OCC from issuing such charters.

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    March 05, 2019

    Arkansas Modifies Provisions Regarding Fair Mortgage Lending Act (Act 200)

    Arkansas Senate Bill 188 (Act 200) is an act to modify the fair mortgage lending act; and to amend certain provisions of the fair mortgage lending act to comply with recent developments in federal law; and for other purposes.

    • Includes for transitional loan officers in all existing licensing provisions
    • Updates multiple definitions
    • Updates some licensing provisions

    These provisions are effective on August 9, 2019.

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    March 04, 2019

    Montana Amends Provisions Regarding Reporting Requirements for Escrow Businesses

    AN ACT REVISING THE REGULATION OF ESCROW BUSINESSES ACT; ALLOWING ANNUAL REPORTS

    OF ESCROW BUSINESSES TO BE REVIEWED BY A CERTIFIED PUBLIC ACCOUNTANT EVERY ODD-NUMBERED YEAR; ALLOWING SERVICE BY COMMON COURIER WITH TRACKING CAPABILITY;

    AMENDING SECTIONS 32-7-115 AND 32-7-124, MCA; AND PROVIDING AN EFFECTIVE DATE.

    BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

    Section 1. Section 32-7-115, MCA, is amended to read:

    "32-7-115. Maintenance of records. (1) A licensee shall establish and maintain the books, accounts, and records necessary to enable the department at any time to determine whether the escrow transactions performed by the licensee comply with the provisions of this part. The books, accounts, and records must be maintained in accordance with generally accepted accounting principles and good business practice.   

    (2) A licensee shall establish and maintain the following records concerning general accounts:

    (a) a general record reflecting the assets, liabilities, capital, income, and expense of the business,

    maintained in accordance with generally accepted accounting principles;

    (b) a cash receipt and disbursement journal; and

    (c) a reconciliation of monthly statements to the general record.

    (3) The records referred to in subsections (1) and (2) must be reconciled at least once each month with the bank statements reflecting each escrow account.

    (4) A licensee shall preserve for at least 3 years after the close of any escrow:

    (a) all bank statements reflecting each escrow account and records of monthly reconciliations of the

    statements to the general record;

    (b) all canceled checks drawn on each escrow account;

    (c) any additional records reflecting banking transactions regarding each escrow account, including

    copies of all receipts for funds transferred from other accounts into each escrow account;

    (d) all statements of account;

    (e) all escrow instructions and amendments to them; and

    (f) all additional records pertinent to each escrow transaction.

    (5) A licensee shall file annually with the department by a date set by the department by rule a statement of the licensee's financial condition as of December 31 of the preceding calendar year and its transactions and escrow activities during that preceding calendar year concerning consumers in this state. The financial statement must be certified reviewed by an independent public accountant every odd-numbered year and must be in a form and contain the information that the department requires."

    Section 2. Section 32-7-124, MCA, is amended to read:

    "32-7-124. Hearings -- penalties. (1) The department may impose a civil penalty not to exceed $1,000 for each violation if the department finds, after providing a 14-day written notice of alleged violations and opportunity for administrative hearing, that any person, any licensee, or any officer, agent, employee, or representative of the person or licensee, whether licensed or unlicensed, has:

    (a) violated any of the provisions of this part;

    (b) failed to comply with the rules or orders promulgated by the department;

    (c) failed or refused to make required reports to the department;

    (d) furnished false information to the department; or

    (e) operated without a required license.

    (2) The department may issue an order requiring restitution to parties and reimbursement of the

    department's costs of bringing an administrative action. In addition, the department may issue an order revoking, conditioning, or suspending the right of the licensee, directly or through another, to engage in escrow business activities in this state.

    (3) All hearing schedules and orders must be mailed to the person or licensee by certified mail to the address for which the license was issued or, in the case of an unlicensed business, to the last-known address of record.

    (4) For purposes of this part, the department is considered to have complied with the requirements of law concerning service of process upon mailing by certified mail by sending by common courier with tracking capability any notice required under this part, postage prepaid and addressed to:

    (a) the last-known address of the licensee's registered agent for service of process on file with the department;

    (b) the last-known address of the licensee on file with the department for an in-state licensee; or

    (c) the last-known address of an unlicensed person.

    (5) In a judicial action, suit, or proceeding arising under this part or any administrative rule adopted

    pursuant to this part between the department and a licensee who does not maintain a physical office in this state, venue is in the district court of Lewis and Clark County.

    (6) The provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, apply to a contested case brought under this part." Section 3. Effective date. [This act] is effective October 1, 2019.

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    March 01, 2019

    California AG seeks to strengthen the California Consumer Privacy Act

    Buckley Sandler, LLP--InfoBytes Blog

    On February 25, the California Attorney General announced a legislative proposal that would amend several aspects of the California Consumer Privacy Act (CCPA). The CCPA was originally enacted in June 2018 (covered by a Buckley Special Alert) and subsequently amended in September 2018 (covered by InfoBytes here). The CCPA, which carries an effective date of January 1, 2020, on most provisions, sets forth various requirements for businesses that collect, transfer, or sell a consumer’s personal information. Under SB 561, which was introduced on February 22, the law would be amended to (i) expand the right of California citizens to bring private legal actions, removing aspects of the law that provided exclusivity to the AG; (ii) remove provisions that would allow companies to request guidance from the California AG on how to comply with the law, instead allowing the AG to publish general guidance; and (iii) would allow enforcement actions to be brought immediately, removing the 30-day cure window.

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    March 01, 2019

    Arkansas enacts legislation modifying Fair Mortgage Lending Act

    Buckley Sandler, LLP--InfoBytes Blog

    On February 26, the Arkansas Governor signed SB 188, which amends certain provisions of the state’s Fair Mortgage Lending Act (the Act) to comply with recent developments in federal law. Among other things, the amendments, which take effect 90 days after adjournment, include (i) modifying the Act’s definition of an “applicant” and “licensee” to now include transitional loan officers; (ii) specifying that an “exempt person” must comply with outlined compensation limits, mortgage banker affiliation disclosures, and loan term negotiation restrictions; (iii) defining a “transitional loan officer” to mean “an individual who, in exchange for compensation as an employee of, or who otherwise receives compensation or remuneration from, a mortgage broker or mortgage banker, is authorized to act as a loan officer subject to a transitional loan officer license,” with term limits of no more greater than 120 days and is not subject to commissioner reapplication, renewal, or extension requirements; and (iv) outlining transitional loan officer termination conditions and employment restrictions. The amendments also address audited financial statement requirements for mortgage bankers and servicers, and state that transitional loan officers may now be subject to criminal background investigations should the state join a multistate automated licensing system.

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    March 01, 2019

    Wyoming is second state to create fintech sandbox

    Buckley Sandler, LLP--InfoBytes Blog

    On February 19, the Wyoming Governor signed HB 57, which creates a fintech sandbox program in the state for companies to test innovative financial products and services. Wyoming is the second state to introduce a regulatory sandbox program, following Arizona’s sandbox introduction last March. (Previously covered by InfoBytes here.) Under the “Financial Technology Sandbox Act” (the Act), the state’s sandbox will be open to innovative financial products and services, including those focused on blockchain and cryptocurrencies, and will allow testing of these products for up to two years with the possibility of an additional 12 month extension before requiring participants to apply for formal licensure. Additionally, under certain conditions, the Act—which grants various supervisory and enforcement power to the state banking commissioner and the secretary of state, including revocation and suspension rights—will authorize (i) limited waivers of specified statutes or rules, and (ii) reciprocity agreements with other regulators. The Act takes effect January 1, 2020.

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    February 28, 2019

    California Legislation Would Make CCPA Even Worse for Businesses

    Ballard Spahr LLP--Taylor R. Steinbacher 

    New proposed legislation in California, backed by state Attorney General (“AG”) Xavier Becerra, would amend the new California Consumer Privacy Act (“CCPA”) to make it easier for private plaintiffs and public officials to sue for violations while further increasing regulatory uncertainty and compliance costs for businesses. Specifically, SB 561 would expand the CCPA’s private right of action, remove the Act’s public enforcement “cure” provision, and eliminate the ability of affected companies to seek compliance guidance from the AG.

    The CCPA is a sweeping new privacy law which goes into effect in January 2020. It gives California residents substantial control over personal data held by certain California businesses, requiring disclosure of what personal information the business collects, how that information is used or sold, and allowing consumers to control or delete that information upon request. It currently allows private plaintiffs to seek statutory damages of up to $750 per violation for certain violations, and it allows the AG to seek civil penalties of up to $2,500 for most violations, and up to $7,500 for violations found to be intentional.

    SB 561 would make three key changes to the Act:

    • Expanding the private right of action—As written, the Act appears to provide a private right of action only when a consumer’s personal information was subject to an avoidable data breach. However, some speculated that allegedly ambiguous language in the statute could support a private right of action for any violation. SB 561 would resolve this ambiguity by expressly providing a broad private right of action to any consumer “whose rights under this title are violated.”
    • Removal of the public enforcement cure period—Currently, the Act provides that the AG may only bring an action after a business fails to cure an alleged violation within thirty days after being notified of alleged noncompliance. SB 561 removes this notification requirement, allowing the AG to bring enforcement actions immediately.
    • Elimination of AG compliance opinions—As of now, the Act provides a mechanism to seek a legal opinion from the Attorney General about compliance with the Act. SB 561 does away with this right, and instead provides that the AG may publish materials giving businesses and others general guidance on how to comply with the Act.

    In announcing his support of SB 561, Attorney General Becerra said that the amendments are needed to eliminate the requirement that his office provide compliance advice to businesses “at taxpayers’ expense,” and to nullify a “free pass” for businesses to cure violations before enforcement could occur. This statement suggests that the AG is likely to be active in enforcing the CCPA once it goes into effect next year.

    Businesses should continue to monitor legislative activity and rulemakingconcerning the CCPA, as further amendments and the final implementing regulations are likely forthcoming soon. Given the approaching effective date and the possibility that it will not be extended by further amendments or the implementing regulations, there may not be a great deal of time in which to comply with revised requirements.

    On March 20, 2019, from 12 p.m. to 1 p.m. ET, Ballard Spahr attorneys will hold a webinar, “The California Consumer Privacy Act: What Comes Next?” The webinar registration form is available here.

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    February 27, 2019

    CA bill introduced to require non-retail businesses to allow customers to choose among refund methods

    Ballard Spahr LLP--Scott M. Pearson

    A bill (AB 1428) has been introduced in the California Assembly that would apply to a “business” that uses prepaid cards to make refunds to customers located in California.  The bill would require such a business to allow the customer to choose whether to get the refund by prepaid card, check, or a refund back to the original form of payment.

    For purposes of this requirement, a “business” is defined as “a proprietorship, partnership, corporation, or other form of commercial enterprise” but does not include “a retail establishment or restaurant.”  The term “customer” is not defined.  As a result, the bill could be read to apply to refunds to business entities.

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    February 22, 2019

    New Hampshire One Step Closer to Judicial Foreclosure Law

    DSNews--Stephanie Bacot

    The process of foreclosure varies from state to state, but in general, there are two different procedures in place, judicial foreclosure or nonjudicial foreclosure, both resulting in a foreclosure sale. New Hampshire is one of the few states that still allow non-judicial foreclosures but that could change soon if HB 270 bill is passed into law.

    The bill requires that mortgage foreclosures be commenced by civil actions brought in superior court and also modifies the period of redemption for a mortgage. The House of Representatives in the state recently passed the bill after several cycles of reconsideration. The bill will now be voted on in the state Senate before it is made into a law.

    If the law comes to pass, it is designed to keep homeowners from being blindsided by foreclosure and avoid title discrepancies.

    Rep. David Woodbury, D-New Boston told the New Hampshire Business Review that the bill “changes that burden of proof from the homeowner to the bank.”

    According to representatives who voted for the bill, during the last recession, things got messy with homes being sold off to a variety of real estate trusts without sufficient documentation that the entity filing the foreclosure actually owned the home. Others disagreed, arguing there was no testimony that foreclosures in this state are done improperly.

    Both sides of the argument have concerns. If the bill is passed into law, “all future mortgages will cost more money. If you delay foreclosures, it increases costs and that costs gets passed on,” Rep. John Hunt, R-Rindge told the New Hampshire Business Review.

    If it becomes law New Hampshire will leave behind these remaining states that are predominantly nonjudicial foreclosure: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Georgia, Idaho, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, and Wyoming.

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