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Effective January 1, 2018, no person shall directly or indirectly act as a lead generator without obtaining a license under Section 36-a-489, unless he or she is exempt under the statute.

Bankers Advisory, Compliance Monitor--Elizabeth Dailey

Power of Sale Location

Nevada has amended its provision regarding the location requirement of Trustee’s Power of Sales. The previous provision required that, in counties with populations of less than 100,000, sales were required to be held at the courthouse in the county where the property is located. In counties with populations exceeding 100,000, sales were to be made at the public location in the county designated by the governing body of the county for that purpose.

The new provision provides that all sales, regardless of county population, shall now be made at the public location in the county designated by the governing body of the county for that purpose. This provision is effective immediately.

For the full text of Senate Bill 267 please refer to https://legiscan.com/NV/text/SB267/id/1619424/Nevada-2017-SB267-Enrolled.pdf.

Domestic Relations

Nevada has amended its domestic relations provisions to remove references to specific gender. These provisions are effective as of July 1, 2017.

All references to “male and female person” have been replaced with “two persons regardless of gender.” All references to “the husband and wife of” have been replaced with “married to.” References to “father” have been changed to “parent no. 1,” while references to “mother” have been replaced with “parent no. 2.”

For the full text of Assembly Bill 229 please refer to https://legiscan.com/NV/text/AB229/id/1619901/Nevada-2017-AB229-Enrolled.pdf.

Fees Collected by County Recorders

Nevada has revised its provisions regarding fees that may be collected by a county recorder. These provisions are effective as of October 1, 2017.

One amended provision provides that a county recorder shall charge a flat fee of $25 to record a document. The old provision provided that the cost to record a document was $10 for the first page and $1 for each additional page. However, a new, separate provision specifies that a county recorder shall charge only $10 for recording notices or certificates of location of a mining claim.

Another amendment provides that county recorders may charge and collect, in addition to any fee that he is otherwise authorized to charge and collect, and additional fee up to $5 for recording a document or any other writing, including a notice, deed, conveyance, map, or chart. The previous provision provided that this additional fee was not to exceed $3.

A fee provision allowing a county recorder to charge and collect and additional fee of up to $25 for recording a document that does not meet the standards set forth in subsection 3 of NRS 247.110 has been rescinded.

Another newly enacted provision provides that a county recorder has the discretion to accept and record a document that does not meet the formatting requirements set forth in subsection 3, paragraphs (a) through (g).

For the full text of Assembly Bill 169 please refer to https://www.leg.state.nv.us/Session/79th2017/Bills/AB/AB169_EN.pdf.

Foreclosure

Nevada has enacted provisions regarding foreclosure of real property owned by certain military personnel. These provisions are effective immediately.

The new provision provides that, if a borrower is a service member or a dependent of a service member, no person is authorized to initiate a foreclosure sale against that person’s property during any period that the service member is on active duty or deployment or for a period of one year immediately following the end of such active duty or deployment.

In any civil action for a foreclosure sale involving a failure to make a payment that is filed against an active service member or his or her dependent, the court is permitted to either stay the proceedings in the action until at least one year after the end of the service member’s active duty or deployment or adjust the obligation to preserve the interests of the parties. This provision does not apply if the court determines that the ability of the service member or his dependent to make the payment is not materially affected by the active duty or deployment. This provision only applies to a residential mortgage loan secured by the service member or his dependent prior to the active duty or deployment.

Any person who knowingly initiates or directs another person to initiate a foreclosure sale in violation of these provisions is guilty of a misdemeanor and may be liable for actual damages, reasonable attorney’s fees, and other costs incurred by the injured party. Trustees who initiate foreclosure sales at the direction or authorization of another person are exempt from this provision.

A definitions section has also been enacted, defining such relevant terms as “service member,” “residential mortgage loan,” “foreclosure sale,” “active duty,” and “employment.”

For the full text of Senate Bill 33 please refer to https://www.leg.state.nv.us/Session/79th2017/Bills/SB/SB33_EN.pdf.

The Iowa Department of Commerce, Division of Banking, has enacted licensing provisions regarding mortgage bankers, mortgage brokers, real estate closing agents, and mortgage loan originators. These provisions are effective as of July 1, 2017.

Mortgage Banker, Mortgage Broker, and Real Estate Closing Agent Requirements

The first new provision in the section provides that any officer, director, or individual having control over an applicant for a license to operate as a mortgage banker, mortgage broker, or real estate closing agent is required to provide fingerprints, authorize a fingerprint background check through NMLS, and pay any required fees needed to conduct a national criminal history background check through the FBI.

The second adopted provision concerns changes in a licensee’s business. The provision states that when a change of control of a licensee is proposed, the party that assuming control of the licensee is required to give notice to the superintendent through the NMLS at least sixty days before the proposed change takes effect. Further, the party must furnish the superintendent with the same information required of initial applicants for a license, along with the appropriate fee. The party may be required to provide fingerprints, authorize a fingerprint background check through NMLS, and pay the appropriate fees for the purpose of conducting a national criminal history background check through the FBI. The superintendent shall approve or deny the request in accordance with the provisions of Iowa Code section 535B.5 and rule 187—18.4(17A, 535B).

MLO Requirements

This section was amended to eliminate the provision stating that mortgage loan originators who have passed the Iowa originator test are exempt from taking the Iowa state component of the SAFE mortgage loan originator test. Also eliminated from this section is the requirement that applicants who are waiting on the NMLS’s completion of the implementation of the electronic fingerprint capture program must submit to a criminal background check by providing a fingerprint card.

Added to this section is the requirement that an applicant who has completed twenty hours of pre-licensure education must retake those twenty hours of pre-licensure education if the individual fails to acquire a valid state license or federal registration as an MLO within three years from either the date of federal compliance with 12 U.S.C. 5104(c) or the last date of licensure or registration as an MLO.

For the full text of these provisions please refer to https://www.legis.iowa.gov/docs/aco/arc/3080C.pdf, https://www.legis.iowa.gov/docs/aco/arc/3081C.pdf

The Minnesota legislature passed House File 46, a bill concerning the recording of documents relating to real property. The amendments therein set forth new requirements and clarifications concerning the filing of certificates of value, recording, registration, use of electronic documents and other provisions affecting real estate.

Electronic Documents

Concerning the recording of electronic documents, the amendments clarify that an electronic signature satisfies the requirement that a document contain original signatures and additionally clarifies when an electronic document delivered to a recorder’s office in recordable form is considered recorded.

Certificate of Real Estate Value

The changes include an addition to Section 272.115, Subd. 7 which clarifies that a “certificate of real estate value is not required when the transfer is made by a deed in fulfillment of a contract for deed when the deed refers to a recorded contract for deed by document number or book and page and the consideration paid for the real estate described in the contract for deed.”

Determination of Boundaries

Section 508.671 includes amendments concerning the process to determine the boundaries between registered land which shares one or more boundaries with unregistered land.

An owner of registered land may now apply by a duly verified petition to have the boundary lines judicially determined, regardless of having one or more common boundary with registered or unregistered land. Additionally, an owner of unregistered land may now apply to have the boundary lines of the unregistered parcel judicially determined, provided the request affects adjoining parcels of registered land.

A petition for boundary determination must include a legal description of the adjoining lands, be recorded with the registrar of titles, be entered on the certificate title or recorded with the county recorded in the case of unregistered land and entered in the tract index.

The resulting order must be entered on all affected certificates of title and in the tract index for the affected abstract land. Additionally, a certified copy of the plat of the survey shall be filed with the registrar of titles and if boundaries on unregistered land are affected, also filed with the country recorder.

Directive by Examiner

Section 508A.71 Subd. 3 has been amended to clarify that by a written directive, the examiner of titles may order “the deletion of easements or other non fee interests which are terminated by their own terms or by written instrument” at the request of a registered owner or other person in interest.

Standard Documents

Section 508A.82 Subd. 1 regarding the fees charged by the registrar of title has been amended to reflect “for any certified copy of a certificate of title that states the date it is verified through, $10,” which previously read “for each certificate showing condition of the register, $50.”

View the full House File 46:

https://www.revisor.mn.gov/bills/bill.php?b=House&f=HF46&ssn=0&y=2017

Bankers Advisory, Compliance Monitor--Zachary Pearlstein

The state of Oklahoma has recently enacted Senate Bill No. 467 regarding the Consumer Credit Code and the Department of Consumer Credit, with an effective date of July 1, 2018.

In the state of Oklahoma, the Department of Consumer Credit receives funds from a variety of fees and civil penalties. These fees and penalties are collected pursuant to the following: the Uniform Consumer Credit Code, the Credit Services Organization Act, the Oklahoma Pawnshop Act, the Precious Metal and Gem Dealer Licensing Act, the Oklahoma Rental-Purchase Act, the Oklahoma Health Spa Act, the Oklahoma Secure and Fair Enforcement for Mortgage Licensing Act and the Deferred Deposit Lending Act.

The updated provisions state that 90% of the fees and penalties collected by the Department of Consumer Credit pursuant to these Acts must be deposited in the Consumer Credit Administrative Expenses Revolving Fund. The remaining 10% of fees and penalties collected under these Acts must be deposited in the General Revenue Fund of the State Treasury.

The regulations specifically exempt certain fees from these provisions. The provisions do not apply to fees received for the Oklahoma Mortgage Broker and Mortgage Loan Originator Recovery Fund, or fees received from deferred deposit lenders for consumer counseling services.

Finally, the Bill allows the Administrator of Consumer Credit to reduce annual license fees for a specified renewal period. If he or she chooses to do so, he or she must notify licensees of an annual license fee reduction before November 1 of the renewal period for that license.

Bankers Advisory, Compliance Monitor--Julio Suarez

MARYLAND ADOPTS AMENDMENTS CHANGING SURETY BOND LIABILITY

Effective June 1, 2017, Maryland passed an act that will change the mechanics of surety bonds filed in tandem with applications to become a debt collection licensee in the state of Maryland. Specifically, they amend the list of obligees and further detail/delineate surety liability limitations.

Previously, a surety bond acted as a legal guarantee between the principal and the individual obligee, providing that, if the conditions were not fulfilled by the principal, the surety company would pay the obligee in accordance with the guarantee. With the amendments added to the act, the State Collection Agency Licensing Board (the board) is now to be one of the named obligees, acting on behalf and for the benefit of the state.

The amendments also clear up the impact bond modifications have on the relationship between the bond and its surety liability. The amendment dictates that the liability of the surety is: (1) continuous; (2) non-aggregating regardless of any bond renewals, replacements, continuance or modifications; and (3) will be considered a continuous obligation regardless of changes in the penal sum. Furthermore, the surety liability is not impacted by the bankruptcy of the licensee or an act of bad faith – such as misrepresentation – by the licensee.

For a full reading of the amendments, you may follow this link: http://mgaleg.maryland.gov/2017RS/bills/sb/sb0924t.pdf

MARYLAND ADOPTS AMENDMENTS TO THE MARYLAND PERSONAL INFORMATION PROTECTION ACT

Effective January 1, 2018, Maryland amended certain provisions of the Maryland Personal Information Protection Act. Specifically, the amendments changed what information is covered and the steps a compromised business must take post-discovery of a breach.

The data covered under the Act includes all data in electronic or optical form. Captured data must be protected from breaches. Therefore, under the amendments, the data must be encrypted and rendered indecipherable without the cryptographic key. Protected data includes personal information such as the: (1) individual’s name; (2) individual’s personal identification numbers such as his or her tax identification number (TIN); (3) individual’s address; and (4) individual’s email. However, not all data falls under the protection of the Act. The Act specifically omits data that is publicly available or has had its protection privileges explicitly waived by the individual for disclosure to third parties.

Should there be a breach, an investigation must ensue. The breached party must determine whether there is a “likelihood that personal information of the individual has been or will be misused as a result of the breach.” At the conclusion of the aforementioned investigation, the business should notify the individual of the breach – if it has found the likelihood of the information compromised to meet the standard – as soon as possible, but at the latest 45 days from the conclusion of the investigation. The only exception to this is if there is a police investigation ongoing, in which case the breached party must inform the individual within 30 days at the conclusion of the police investigation.

For a full reading of the amendments, you may follow this link: http://mgaleg.maryland.gov/2017RS/chapters_noln/Ch_518_hb0974E.pdf

MARYLAND ADOPTS AMENDMENTS AFFECTING MORTGAGES AND DEEDS OF TRUST RECORDING

Effective October, 1 2017, Maryland adopted several amendments affecting mortgages and deeds of trust recording prerequisites. Most of these changes are minor textually but are important as they may have broad impact.

First, a deed other than a mortgage, deeds of trust and an assignment/release of a mortgage or deed of trust may not be recorded unless an attorney or a party named in the instrument certifies it. The certification must state that the certifying party is also the party responsible for the preparation of the instrument. Barring this certification, a recordation of the instrument may not occur.

Second, the amendments define limitations as to which individual constitutes an “attorney.” Previously, any attorney at law was sufficient to meet this standard. However, after the changes, an attorney at law must be admitted to the Maryland Bar in order to be able to be considered a proper certifying party.

Last, mortgages, deeds of trusts, and assignments/releases of mortgages and deeds of trusts do not require a certification. So long as the instruments were prepared by an attorney or a party mentioned within the instrument, the document may be recorded without any certification requirements.

For a full reading of the amendments, you may follow this link: http://mgaleg.maryland.gov/2017RS/chapters_noln/Ch_520_hb0595T.pdf

MARYLAND ADOPTS THE UNIFORM ELECTRONIC LEGAL MATERIALS ACT

Effective October 1, 2017, Maryland enacted the Maryland Uniform Electronic Legal Materials Act. This Act essentially makes uniform electronic documentation of certain state legal documents and databases. For an exhaustive list of what documents fall within the definition of “legal materials” under the Act, please use the link at the end of this article. The following are the most important changes brought by the adoption of the Act.

First, determining whether a legal material is published solely electronically or in two or more mediums is pivotal. A legal material that is published solely electronically is deemed official and must be authenticated. Authentication requires the publisher to provide a method for the reader to determine that the current version he or she is accessing is unaltered.

Second, a legal material that is authenticated is presumed to be accurate. However, a party may contest the authenticity of the material by a “preponderance of the evidence” (this is legal language for more likely than not, or 51% likelihood).

Last, should a legal material be deemed official, the publisher must take steps to secure and preserve the material; this includes creating backups, ensuring integrity of the record and delivering a copy to the state archives.

For a full reading of the Act, you may follow this link:

http://mgaleg.maryland.gov/2017RS/chapters_noln/Ch_553_hb0165T.pdf

Amends Nevada's Deceptive Trade Practices Act to prohibit the charging of fees to update or change a consumer's records, including billing or credit information. Effective July 1, 2017.

Requires an HOA to provide notice, via certified mail, to each holder of a recorded security interest encumbering a home, of the HOA's intent to enter a unit that is vacant but not in the foreclosure process to abate a nuisance or maintain the unit's exterior. If the HOA enters or modifies a property for these purposes, it can impose the costs upon the homeowner and will have a corresponding lien that is superior in interest to a first deed of trust. Effective October 1, 2017.

Nevada has revised its provisions regarding fees that may be collected by a county recorder. These provisions are effective as of October 1, 2017.

• A county recorder shall charge a flat fee of $25 to record a document. 
• County recorders may charge and collect, in addition to any fee that he is otherwise authorized to charge and collect, and additional fee up to $5 for recording a document or any other writing, including a notice, deed, conveyance, map, or chart. 
• County recorder to charge and collect and additional fee of up to $25 for recording a document that does not meet the standards set forth in subsection 3 of NRS 247.110 has been rescinded.
• County recorder has the discretion to accept and record a document that does not meet the formatting requirements set forth in subsection 3, paragraphs (a) through (g).

Bankers Advisory, Compliance Monitor--Elizabeth Dailey

Iowa has modified several minor provisions under the Consumer Credit Code. These provisions are effective as of July 1, 2017.

Duties and Powers of Superintendent

The first amended provision is Section 524.213. This section modifies the rule that directors shall not be paid an interest rate on deposits by a state bank of which he or she is a director by adding that any waiver of customary charges related to deposit accounts shall not violate this restriction.

Officers and Directors

Section 533.205 has been modified to allow a state credit union to pay an overdraft of a director, officer, or employee of the credit union when the overdraft is paid pursuant to an overdraft protection plan or courtesy pay program.

For the full text of Senate File 502 please refer to https://www.legis.iowa.gov/docs/publications/LGE/87/SF502.pdf

Authorizing a secured party to petition a circuit court for leave to immediately commence an action to foreclose a mortgage or deed of trust on residential property if the property is vacant and abandoned under specified circumstances; requiring a secured party to send a copy of a specified petition to specified persons under specified circumstances; requiring a court to rule on a specified petition promptly after the petition is filed; applying the Act prospectively; etc.

Bankers Advisory, Compliance Monitor--Ryan Peters

The General Assembly of North Carolina has enacted Senate Law 2017-10, which streamlines mortgage notice requirements, effective immediately.

North Carolina G.S. § 45-91 requires that any fee incurred by the servicer must be:

• Assessed within 45 days of the date on which the fee was incurred, and;
• Explained clearly and conspicuously in a statement mailed to the borrower at the borrower’s last known address within 30 days after assessing the fee, provided the servicer shall not be required to take any action in violation of the provisions of the federal bankruptcy code.

Senate Law 2017-10 modifies North Carolina G.S. § 45-91 to state that the servicer shall not be required to send such a statement if the fee is included in a periodic statement sent to the borrower that complies with paragraphs (b), (c), and (d) of 12 C.F.R. § 1026.41, or if the fee “results from a service that is affirmatively requested by the borrower, is paid for by the borrower at the time the service is provided, and is not charged to the borrower’s loan account.”

For the full text of Senate Law 2017-10, please refer to: http://www.ncleg.net/Sessions/2017/Bills/Senate/PDF/S131v7.pdf