By: Truitt (Senate Sponsor - Wentworth) H.B. No. 2774
(In the Senate - Received from the House April 29, 2009;
May 4, 2009, read first time and referred to Committee on Business
and Commerce; May 19, 2009, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 9, Nays 0;
May 19, 2009, sent to printer.)
COMMITTEE SUBSTITUTE FOR H.B. No. 2774 By: Van de Putte
A BILL TO BE ENTITLED
AN ACT
relating to the licensing and regulation of certain persons
involved in residential mortgage lending; providing a penalty.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 156.101, Finance Code, is amended by
adding Subsection (d) to read as follows:
(d) The commissioner shall participate in the Nationwide
Mortgage Licensing System and Registry as provided by Chapter 180.
SECTION 2. Section 156.102, Finance Code, is amended by
adding Subsections (a-1) and (b-1) to read as follows:
(a-1) The finance commission may adopt rules under this
chapter as required to carry out the intentions of the federal
Secure and Fair Enforcement for Mortgage Licensing Act of 2008
(Pub. L. No. 110-289).
(b-1) The finance commission on the commissioner's
recommendation may adopt rules to promote a fair and orderly
administration of the fund consistent with the purposes of this
subchapter.
SECTION 3. The heading to Section 156.104, Finance Code, is
amended to read as follows:
Sec. 156.104. MORTGAGE INDUSTRY [BROKER] ADVISORY
COMMITTEE.
SECTION 4. Sections 156.104(a), (b), and (h), Finance Code,
are amended to read as follows:
(a) The mortgage industry [broker] advisory committee is
created to advise and assist the commissioner.
(b) The advisory committee is composed of six members [to
be] appointed by [as follows:
[(1)] the commissioner. Each of the members must be
[shall appoint four members, each of whom]:
(1) under the regulatory authority of the department
[(A) must hold a mortgage broker license];
(2) [(B) is] actively engaged in the business of
originating, brokering, or funding residential mortgage loans at
the time of appointment; and
(3) [(C) has been] primarily engaged in the business
of originating, brokering, or funding residential mortgage loans
for at least two years before the member's appointment[; and
[(2) the Texas Real Estate Commission shall appoint
two members, each of whom must hold a real estate broker or
salesperson license].
(h) In addition to other powers and duties delegated to it
by the commissioner, the advisory committee shall advise the
commissioner with respect to:
(1) the proposal and adoption of rules relating to:
(A) the licensing of mortgage brokers and loan
officers;
(B) the education and experience requirements
for licensing mortgage brokers and loan officers; and
(C) conduct and ethics of mortgage brokers and
loan officers;
[(D) continuing education for licensed mortgage
brokers and loan officers and the types of courses acceptable as
continuing education courses under this chapter; and
[(E) the granting or denying of an application or
request for renewal for a mortgage broker license or loan officer
license;]
(2) the form of or format for any applications or other
documents under this chapter; and
(3) the interpretation, implementation, and
enforcement of this chapter.
SECTION 5. Effective April 1, 2010, Section 156.104,
Finance Code, is amended by adding Subsection (b-1) to read as
follows:
(b-1) The members of the committee must include:
(1) three individuals licensed as residential
mortgage loan originators under this chapter, one of whom must hold
an active real estate broker or salesperson license issued under
Chapter 1101, Occupations Code; and
(2) three individuals licensed as residential
mortgage loan originators under Chapter 157, one of whom must hold
an active real estate broker or salesperson license issued under
Chapter 1101, Occupations Code.
SECTION 6. Section 156.202, Finance Code, is amended to
read as follows:
Sec. 156.202. EXEMPTIONS. (a) The following persons are
exempt from this chapter:
(1) any of the following entities or an employee of any
of the following entities provided the employee is acting for the
benefit of the employer:
(A) a bank, savings bank, or savings and loan
association, or a subsidiary or an affiliate of a bank, savings
bank, or savings and loan association;
(B) a state or federal credit union, or a
subsidiary, affiliate, or credit union service organization of a
state or federal credit union;
(C) an insurance company licensed or authorized
to do business in this state under the Insurance Code;
(D) a mortgage banker registered under Chapter
157;
(E) an organization that qualifies for an
exemption from state franchise and sales tax as a 501(c)(3)
organization;
(F) a Farm Credit System institution; or
(G) a political subdivision of this state
involved in affordable home ownership programs;
(2) an individual who makes a mortgage loan from the
individual's own funds to a spouse, former spouse, or persons in the
lineal line of consanguinity of the individual lending the money;
(3) an owner of real property who in any
12-consecutive-month period makes no more than five mortgage loans
to purchasers of the property for all or part of the purchase price
of the real estate against which the mortgage is secured;
(4) an individual who:
(A) makes a mortgage loan from the individual's
own funds;
(B) is not an authorized lender under Chapter
342, Finance Code; and
(C) does not regularly engage in the business of
making or brokering mortgage loans; or
(5) an individual who is an exclusive agent of a
registered financial services company under a written agreement
prohibiting the individual from soliciting, processing,
negotiating, or placing a mortgage loan with a person other than the
registered financial services company or an affiliate of that
company.
(b) An exclusive agent described by Subsection (a)(5) is
considered an employee of the registered financial services company
for purposes of this chapter.
SECTION 7. Section 156.203, Finance Code, is amended by
adding Subsection (e) to read as follows:
(e) In addition to the disciplinary action by the
commissioner authorized under Section 156.303(a)(7), the
commissioner may collect a fee in an amount not to exceed $50 for
any returned check or credit card charge back.
SECTION 8. Section 156.204, Finance Code, is amended by
amending Subsections (a) and (c) and adding Subsection (f) to read
as follows:
(a) To be eligible to be licensed as a mortgage broker as an
individual, the individual must:
(1) be at least 18 years of age;
(2) be a citizen of the United States or a lawfully
admitted alien;
(3) maintain a physical office in this state and
designate that office in the application;
(4) provide the commissioner with satisfactory
evidence that the applicant satisfies one of the following:
(A) the individual [person] has received a
bachelor's degree in an area relating to finance, banking, or
business administration from an accredited college or university
and has 18 months of experience in the mortgage or lending field as
evidenced by documentary proof of full-time employment as a
mortgage broker or licensed loan officer with a mortgage broker or
an individual [a person] exempt under Section 156.202;
(B) the individual [person] is licensed in this
state as:
(i) an active real estate broker under
Chapter 1101, Occupations Code;
(ii) an active attorney; or
(iii) an active general lines [a local
recording agent or] insurance [solicitor or] agent or a limited
lines [for a legal reserve life] insurance agent [company under
Chapter 21, Insurance Code], or holds an equivalent insurance
license under the [Chapter 21,] Insurance Code; or
(C) the individual [person] has three years of
experience in the mortgage lending field as evidenced by
documentary proof of full-time employment as a licensed loan
officer with a mortgage broker or an individual [a person] exempt
under Section 156.202;
(5) provide the commissioner with satisfactory
evidence of:
(A) having passed an examination, offered by a
testing service or company approved by the finance commission, that
demonstrates knowledge of:
(i) the mortgage industry; and
(ii) the role and responsibilities of a
mortgage broker; and
(B) compliance with the financial requirements
of this chapter;
(6) not have been convicted of a criminal offense that
the commissioner determines directly relates to the occupation of a
mortgage broker as provided by Chapter 53, Occupations Code;
(7) satisfy the commissioner as to the individual's
good moral character, including the individual's honesty,
trustworthiness, and integrity;
(8) not be in violation of this chapter, a rule adopted
under this chapter, or any order previously issued to the
individual by the commissioner; and
(9) provide the commissioner with satisfactory
evidence that:
(A) if the individual [person] has not been
previously licensed as a mortgage broker or a loan officer under
this subchapter, the individual [person] has completed 90
[classroom] hours of education courses approved by the commissioner
under this section; or
(B) if the individual [person] has not been
previously licensed as a mortgage broker under this subchapter but
has been licensed as a loan officer under this subchapter, the
individual [person] has successfully completed an additional 30
[classroom] hours of education courses approved by the commissioner
under this section.
(c) To be eligible to be licensed as a loan officer a person
must:
(1) be an individual who is at least 18 years of age;
(2) be a citizen of the United States or a lawfully
admitted alien;
(3) designate in the application the name of the
mortgage broker sponsoring the loan officer;
(4) provide the commissioner with satisfactory
evidence that the applicant satisfies one of the following:
(A) the person [meets one of the requirements
described by Subsection (a)(4) and] has successfully completed at
least 60 [classroom] hours of education courses approved by the
commissioner; [under this section;]
(B) the person [has 18 months of experience as a
loan officer as evidenced by documentary proof of full-time
employment as a loan officer with a person exempt under Section
156.202 and] has successfully completed 30 [classroom] hours of
education courses approved by the commissioner under this section
if the applicant:
(i) has 18 months or more of experience as a
mortgage loan officer as evidenced by documentary proof of
full-time employment as a mortgage loan officer with a person
exempt under Section 156.202; or
(ii) is a person who meets the
qualifications under Subsection (a)(4)(B); or
(C) the person holds an active mortgage broker
license issued under this chapter [for applications received prior
to January 1, 2000, the mortgage broker that will sponsor the
applicant provides a certification under oath that the applicant
has been provided necessary and appropriate education and training
regarding all applicable state and federal law and regulations
relating to mortgage loans];
(5) not have been convicted of a criminal offense that
the commissioner determines directly relates to the occupation of a
loan officer as provided by Chapter 53, Occupations Code;
(6) satisfy the commissioner as to the individual's
good moral character, including the individual's honesty,
trustworthiness, and integrity;
(7) provide the commissioner with satisfactory
evidence of having passed an examination, offered by a testing
service or company approved by the finance commission, that
demonstrates knowledge of:
(A) the mortgage industry; and
(B) the role and responsibilities of a loan
officer; and
(8) not be in violation of this chapter, a rule adopted
under this chapter, or any order previously issued to the
individual by the commissioner.
(f) Subsection (c) and this subsection expire January 1,
2011.
SECTION 9. Effective January 1, 2011, Section 156.204,
Finance Code, is amended by adding Subsection (c-1) to read as
follows:
(c-1) To be eligible to be licensed as a loan officer a
person must:
(1) be an individual who is at least 18 years of age;
(2) be a citizen of the United States or a lawfully
admitted alien;
(3) designate in the application the name of the
mortgage broker sponsoring the loan officer;
(4) provide the commissioner with satisfactory
evidence that the applicant satisfies one of the following:
(A) the person has successfully completed at
least 60 hours of education courses approved by the commissioner;
(B) the person has successfully completed 30
hours of education courses approved by the commissioner under this
section if the applicant has 18 months or more of experience as a
residential mortgage loan originator as evidenced by documentary
proof of full-time employment; or
(C) the person holds an active license as a
residential mortgage loan originator under Chapter 157 and has held
that license for a minimum of one year;
(5) not have been convicted of a criminal offense that
the commissioner determines directly relates to the occupation of a
loan officer as provided by Chapter 53, Occupations Code;
(6) satisfy the commissioner as to the individual's
good moral character, including the individual's honesty,
trustworthiness, and integrity;
(7) provide the commissioner with satisfactory
evidence of having passed an examination, offered by a testing
service or company approved by the finance commission, that
demonstrates knowledge of:
(A) the mortgage industry; and
(B) the role and responsibilities of a loan
officer; and
(8) not be in violation of this chapter, a rule adopted
under this chapter, or any order previously issued to the
individual by the commissioner.
SECTION 10. Section 156.205, Finance Code, is amended to
read as follows:
Sec. 156.205. FINANCIAL REQUIREMENTS [FOR A MORTGAGE
BROKER]. Financial requirements for holding a mortgage broker or
loan officer license shall be met through participation in the
fund. [(a) In this section, "net assets" means the difference
between total assets and total liabilities, as determined by
generally acceptable accounting principles, and does not include
any assets that are exempt under state or federal law. All assets
and liabilities are subject to verification by the commissioner.
[(b) A mortgage broker must maintain net assets of at least
$25,000 or a surety bond in the amount of at least $50,000. The term
of the surety bond must coincide with the term of the license. The
finance commission may adopt rules establishing the terms and
conditions of the surety bond and the qualifications of the surety.
[(c) The commissioner shall require proof of compliance
with this section at the time the mortgage broker applies for or
renews a license.]
SECTION 11. Section 156.208, Finance Code, is amended by
amending Subsections (a), (b), and (j) and adding Subsections (k)
and (l) to read as follows:
(a) A mortgage broker license issued under this chapter is
valid for a term of not more than two years and may be renewed on or
before its expiration date if the mortgage broker:
(1) pays to the commissioner a renewal fee in an amount
determined by the commissioner not to exceed $375 and a recovery
fund fee provided by Section 156.502;
(2) has not been convicted of a criminal offense the
commissioner determines is directly related to the occupation of a
mortgage broker as provided by Chapter 53, Occupations Code; and
(3) provides the commissioner with satisfactory
evidence that the mortgage broker:
(A) has attended, during the term of the current
license, 15 hours of continuing education courses that the
commissioner, in accordance with the rules adopted by the finance
commission under this section, has approved as continuing education
courses; or
(B) maintains an active license in this state as:
(i) a real estate broker;
(ii) a real estate salesperson;
(iii) an attorney; or
(iv) an active general lines insurance [a
local recording] agent or a limited lines [or] insurance [solicitor
or] agent [for a legal reserve life insurance company under Chapter
21, Insurance Code], or holds an equivalent insurance license under
the [Chapter 21,] Insurance Code.
(b) A loan officer license issued under this chapter is
valid for a term of not more than two years and may be renewed on or
before its expiration date if the loan officer:
(1) pays to the commissioner a renewal fee in an amount
determined by the commissioner not to exceed $275 [$175] and a
recovery fund fee provided by Section 156.502;
(2) has not been convicted of a criminal offense the
commissioner determines is directly related to the occupation of a
loan officer as provided by Chapter 53, Occupations Code; and
(3) provides the commissioner with satisfactory
evidence that the loan officer:
(A) has attended, during the term of the current
license, 15 hours of continuing education courses that the
commissioner, in accordance with the rules adopted by the finance
commission under this section, has approved as continuing education
courses, including courses provided by or through the licensed
mortgage broker with whom the loan officer is associated after
submission to and approval by the commission; or
(B) maintains an active license in this state as:
(i) a real estate broker;
(ii) a real estate salesperson;
(iii) an attorney; or
(iv) an active general lines insurance [a
local recording] agent or a limited lines [or] insurance [solicitor
or] agent [for a legal reserve life insurance company under Chapter
21, Insurance Code], or holds an equivalent insurance license under
the [Chapter 21,] Insurance Code.
(j) The commissioner may deny the renewal of a mortgage
broker license or a loan officer license if:
(1) the mortgage broker or loan officer is in
violation of this chapter, a rule adopted under this chapter, or any
order previously issued to the individual by the commissioner;
(2) the mortgage broker or loan officer is in default
in the payment of any administrative penalty, fee, charge, or other
indebtedness owed under this title; [or]
(3) during the current term of the license, the
commissioner becomes aware of any fact that would have been grounds
for denial of an original license if the fact had been known by the
commissioner on the date the license was granted; or
(4) the mortgage broker or loan officer is in default
on a student loan administered by the Texas Guaranteed Student Loan
Corporation, pursuant to Section 57.491, Education Code.
(k) In addition to the disciplinary action by the
commissioner authorized under Section 156.303(a)(7), the
commissioner may collect a fee in an amount not to exceed $50 for
any returned check or credit card charge back.
(l) Subsections (a) and (b) and this subsection expire
January 1, 2011.
SECTION 12. Effective January 1, 2011, Section 156.208,
Finance Code, is amended by adding Subsections (a-1) and (b-1) to
read as follows:
(a-1) A mortgage broker license issued under this chapter is
valid for a term of not more than two years and may be renewed on or
before its expiration date if the mortgage broker:
(1) pays to the commissioner a renewal fee in an amount
determined by the commissioner not to exceed $375 and a recovery
fund fee provided by Section 156.502;
(2) has not been convicted of a criminal offense the
commissioner determines is directly related to the occupation of a
mortgage broker as provided by Chapter 53, Occupations Code; and
(3) provides the commissioner with satisfactory
evidence that the mortgage broker has attended, during the term of
the current license, continuing education courses in accordance
with the applicable requirements of Chapter 180.
(b-1) A loan officer license issued under this chapter is
valid for a term of not more than two years and may be renewed on or
before its expiration date if the loan officer:
(1) pays to the commissioner a renewal fee in an amount
determined by the commissioner not to exceed $275 and a recovery
fund fee provided by Section 156.502;
(2) has not been convicted of a criminal offense the
commissioner determines is directly related to the occupation of a
loan officer as provided by Chapter 53, Occupations Code; and
(3) provides the commissioner with satisfactory
evidence that the loan officer has attended, during the term of the
current license, continuing education courses in accordance with
the applicable requirements of Chapter 180.
SECTION 13. The heading to Section 156.212, Finance Code,
is amended to read as follows:
Sec. 156.212. MAINTENANCE AND LOCATION OF OFFICES[; DISPLAY
OF LICENSE CERTIFICATES].
SECTION 14. Section 156.214(b), Finance Code, as added by
Chapter 228 (H.B. 1716), Acts of the 80th Legislature, Regular
Session, 2007, is amended to read as follows:
(b) To be eligible to register as a registered financial
services company, a person must:
(1) be a depository institution exempt from this
chapter under Section 156.202(1)(A) or (B) and chartered and
regulated by the Office of Thrift Supervision or the Office of the
Comptroller of the Currency, or be a subsidiary or affiliate of the
institution;
(2) provide the commissioner with satisfactory
evidence of an undertaking of accountability in a form acceptable
to the commissioner, supported by a surety bond equal to $1 million
to cover the person's responsibility for mortgage broker activities
of each exclusive agent;
(3) provide a business plan satisfactory to the
commissioner that sets forth the person's plan to provide education
to its exclusive agents, handle consumer complaints relating to its
exclusive agents, and supervise the mortgage broker activities of
its exclusive agents;
(4) pay an annual registration fee in an amount
determined as follows [of the lesser of]:
(A) if the registered financial services company
has 2,000 or fewer exclusive agents acting in this state, an amount
equal to the lesser of:
(i) one-half of the license fee for a loan
officer under Section 156.203(c)(1), multiplied by the number of
exclusive agents under contract to act for the person in this state;
or
(ii) [(B)] $200,000;
(B) if the registered financial services company
has at least 2,001 but not more than 2,500 exclusive agents acting
in this state, $225,000;
(C) if the registered financial services company
has at least 2,501 but not more than 3,000 exclusive agents acting
in this state, $250,000;
(D) if the registered financial services company
has at least 3,001 but not more than 5,000 exclusive agents acting
in this state, $300,000; or
(E) if the registered financial services company
has at least 5,001 exclusive agents acting in this state, $350,000;
and
(5) designate an officer of the person to be
responsible for the activities of the exclusive agents.
SECTION 15. Section 156.301, Finance Code, is amended by
adding Subsection (h) to read as follows:
(h) The commissioner may require reimbursement in an amount
not to exceed $325 for each examiner a day for on-site examination
or investigation of a mortgage broker if records are located out of
state or if the review is considered necessary beyond the routine
examination process.
SECTION 16. Section 156.302(a), Finance Code, is amended to
read as follows:
(a) The commissioner, after notice and opportunity for
hearing, may impose an administrative penalty on a person licensed
under this chapter who violates this chapter or a rule or order
adopted under this chapter.
SECTION 17. Section 156.303, Finance Code, is amended by
amending Subsections (a), (e), (g), (h), and (j) and adding
Subsection (a-1) to read as follows:
(a) The commissioner may order disciplinary action against
a licensed mortgage broker or a licensed loan officer when the
commissioner, after notice and opportunity for [a] hearing, has
determined that the person:
(1) obtained a license, including a renewal of a
license, under this chapter through a false or fraudulent
representation or made a material misrepresentation in an
application for a license or for the renewal of a license under this
chapter;
(2) published or caused to be published an
advertisement related to the business of a mortgage broker or loan
officer that:
(A) is misleading;
(B) is likely to deceive the public;
(C) in any manner tends to create a misleading
impression;
(D) fails to identify as a mortgage broker or
loan officer the person causing the advertisement to be published;
or
(E) violates federal or state law;
(3) while performing an act for which a license under
this chapter is required, engaged in conduct that constitutes
improper, fraudulent, or dishonest dealings;
(4) entered a plea of guilty or nolo contendere to, or
is convicted of, a criminal offense that is a felony or that
involves fraud or moral turpitude in a court of this or another
state or in a federal court;
(5) failed to use a fee collected in advance of closing
of a mortgage loan for a purpose for which the fee was paid;
(6) charged or received, directly or indirectly, a fee
for assisting a mortgage applicant in obtaining a mortgage loan
before all of the services that the person agreed to perform for the
mortgage applicant are completed, and the proceeds of the mortgage
loan have been disbursed to or on behalf of the mortgage applicant,
except as provided by Section 156.304;
(7) failed within a reasonable time to honor a check
issued to the commissioner after the commissioner has mailed a
request for payment by certified mail to the person's last known
business address as reflected by the commissioner's records;
(8) paid compensation to a person who is not licensed
or exempt under this chapter for acts for which a license under this
chapter is required;
(9) induced or attempted to induce a party to a
contract to breach the contract so the person may make a mortgage
loan;
(10) published or circulated an unjustified or
unwarranted threat of legal proceedings in matters related to the
person's actions or services as a mortgage broker or loan officer,
as applicable;
(11) established an association, by employment or
otherwise, with a person not licensed or exempt under this chapter
who was expected or required to act as a mortgage broker or loan
officer;
(12) aided, abetted, or conspired with a person to
circumvent the requirements of this chapter;
(13) acted in the dual capacity of a mortgage broker or
loan officer and real estate broker, salesperson, or attorney in a
transaction without the knowledge and written consent of the
mortgage applicant or in violation of applicable requirements under
federal law;
(14) discriminated against a prospective borrower on
the basis of race, color, religion, sex, national origin, ancestry,
familial status, or a disability;
(15) failed or refused on demand to:
(A) produce a document, book, or record
concerning a mortgage loan transaction conducted by the mortgage
broker or loan officer for inspection by the commissioner or the
commissioner's authorized personnel or representative;
(B) give the commissioner or the commissioner's
authorized personnel or representative free access to the books or
records relating to the person's business kept by an officer,
agent, or employee of the person or any business entity through
which the person conducts mortgage brokerage activities, including
a subsidiary or holding company affiliate; or
(C) provide information requested by the
commissioner as a result of a formal or informal complaint made to
the commissioner;
(16) failed without just cause to surrender, on
demand, a copy of a document or other instrument coming into the
person's possession that was provided to the person by another
person making the demand or that the person making the demand is
under law entitled to receive;
(17) disregarded or violated this chapter, a rule
adopted by the finance commission under this chapter, or an order
issued by the commissioner under this chapter; or
(18) provided false information to the commissioner
during the course of an investigation or inspection.
(a-1) The commissioner may also order disciplinary action
after notice and opportunity for hearing against a licensed
mortgage broker or a licensed loan officer if the commissioner
becomes aware during the term of the license of any fact that would
have been grounds for denial of an original license if the fact had
been known by the commissioner on the date the license was issued.
(e) The commissioner, after giving notice and an
opportunity for hearing, may impose against a person who violates a
cease and desist order an administrative penalty in an amount not to
exceed $1,000 for each day of the violation. In addition to any
other remedy provided by law, the commissioner may institute in
district court a suit for injunctive relief and to collect the
administrative penalty. A bond is not required of the commissioner
with respect to injunctive relief granted under this subsection.
[A penalty collected under this subsection shall be deposited in
the fund.]
(g) If a person fails to pay an administrative penalty that
has become final or fails to comply with an order of the
commissioner that has become final, in addition to any other remedy
provided under law the commissioner, on not less than 10 days'
notice to the person, may without a prior hearing suspend the
person's mortgage broker license or loan officer license. The
suspension shall continue until the person has complied with the
[cease and desist] order or paid the administrative penalty.
During the period of suspension, the person may not originate a
mortgage loan and all compensation received by the person during
the period of suspension is subject to forfeiture as provided by
Section 156.406(b).
(h) An order of suspension under Subsection (g) may be
appealed. An appeal is a contested case governed by Chapter 2001,
Government Code. A hearing of an appeal of an order of suspension
issued under Subsection (g) shall be held not later than the 30th
[15th] day after the date of receipt of the notice of appeal. The
appellant shall be provided at least three days' notice of the time
and place of the hearing.
(j) The [On notice and opportunity for hearing, the]
commissioner may, on not less than 10 days' notice to the person,
suspend a person's license without a prior hearing under this
chapter if an indictment or information is filed or returned
alleging that the person committed a criminal offense involving
fraud, theft, or dishonesty. The suspension continues until the
criminal case is dismissed or the person is acquitted. A person may
appeal the suspension in accordance with Subsection (h).
SECTION 18. Section 156.401(a), Finance Code, is amended to
read as follows:
(a) The commissioner may employ an enforcement staff to
investigate and prosecute complaints made against persons licensed
under this chapter. The commissioner may employ a hearings officer
to conduct hearings under this section. The commissioner may
collect and deposit any court costs collected pursuant to a final
order.
SECTION 19. Section 156.501, Finance Code, is amended by
amending Subsections (a) and (b) and adding Subsections (d), (e),
and (f) to read as follows:
(a) The commissioner shall establish, administer, and
maintain a mortgage broker recovery fund as provided by this
subchapter. The amounts received by the commissioner for deposit
in the fund shall be held by the commissioner in trust for carrying
out the purposes of the fund.
(b) Subject to this subsection, the [The] fund shall be used
to reimburse residential mortgage loan applicants for actual
damages incurred because of [aggrieved persons to whom a court
awards actual damages because of certain] acts committed by a
mortgage broker or loan officer who was licensed under this chapter
when the act was committed. The use of the fund is limited to
reimbursement for out-of-pocket losses caused by an act by a
mortgage broker or loan officer that constitutes a violation of
Section 156.303(a)(2), (3), (5), (6), (8), (9), (10), (11), (12),
(13), or (16) or 156.304. Payments from the fund may not be made to
a lender who makes a mortgage loan originated by the mortgage broker
or loan officer or who acquires a mortgage loan originated by the
mortgage broker or loan officer.
(d) The fund may be used at the discretion of the
commissioner to reimburse expenses incurred to secure and destroy
residential mortgage loan documents that have been abandoned by a
current or former individual or entity under the regulatory
authority of the department.
(e) Payments from the fund shall be reduced by the amount of
any recovery from the mortgage broker or loan officer or from any
surety, insurer, or other person or entity making restitution to
the applicant on behalf of the mortgage broker or loan officer.
(f) The commissioner, as manager of the fund, is entitled to
reimbursement for reasonable and necessary costs and expenses
incurred in the management of the fund, including costs and
expenses incurred with regard to applications filed under Section
156.504.
SECTION 20. Section 156.502(a), Finance Code, is amended to
read as follows:
(a) On an application for an original license or for renewal
of a license issued under this chapter, the applicant, in addition
to paying the original application fee or renewal fee, shall pay a
fee in an amount determined by the commissioner, not to exceed $20
[fee]. The fee shall be deposited in the fund.
SECTION 21. Section 156.502(b), Finance Code, is amended to
read as follows:
(b) If the balance remaining in the fund at the end of a
calendar year [after 2010] is more [less] than $3.5 million, the
amount of money in excess of that amount shall be available to the
commissioner to offset the expenses of participating in and sharing
information with the Nationwide Mortgage Licensing System and
Registry in accordance with Chapter 180 [$500,000, each mortgage
broker and loan officer licensed under this chapter, on the next
renewal of the license, shall pay, in addition to any other required
fees, the lesser of a $10 fee or a pro rata share of the amount
necessary to bring the fund to $1 million. The fee shall be
deposited in the fund].
SECTION 22. Section 156.503, Finance Code, is amended to
read as follows:
Sec. 156.503. STATUTE OF LIMITATIONS. (a) An application
for the recovery of actual damages [action for a judgment that
subsequently results in an order for collection] from the fund
under Section 156.504 may not be filed [instituted] after the
second anniversary of the date of the alleged act or omission
causing the actual damages or the date the act or omission should
reasonably have been discovered.
(b) This section does not apply to a subrogation claim
brought by the commissioner for recovery of money paid out of the
fund [on which the cause of action accrues].
SECTION 23. Section 156.504, Finance Code, is amended to
read as follows:
Sec. 156.504. PROCEDURE FOR RECOVERY. (a) To recover from
the fund, a residential mortgage loan applicant must file a written
sworn application with the commissioner in the form prescribed by
[An aggrieved person who recovers against a mortgage broker or loan
officer licensed under this chapter a valid court judgment for
conduct described by Section 156.501 that occurred on or after
January 1, 2000, after final judgment has been entered, execution
returned nulla bona, and a judgment lien perfected, may file a
verified claim in the court in which the judgment was entered and,
on 20 days' written notice to] the commissioner [and to the judgment
debtor, may apply to the court for an order directing payment from
the fund of any unpaid judgment amount], subject to Section
156.503. A person who knowingly makes a false statement in
connection with applying for money out of the fund may be subject to
criminal prosecution under Section 37.10, Penal Code.
(b) The residential mortgage loan applicant [On the hearing
on the application, the aggrieved person] is required to show:
(1) that the applicant's claim [judgment] is based on
facts allowing recovery under Section 156.501; and
(2) that the applicant:
(A) [person] is not a spouse of the licensed
mortgage broker or loan officer;
(B) is not a child, parent, grandchild,
grandparent, or sibling, including relationships by adoption, of
the licensed mortgage broker or loan officer;
(C) is not a person sharing living quarters with
the licensed mortgage broker or loan officer or a current or former
employer, employee, or associate of the licensed mortgage broker or
loan officer;
(D) is not a person who has aided, abetted, or
participated other than as a victim with the [of the debtor, or the
personal representative of the spouse, and that the person is not]
licensed [as a] mortgage broker or loan officer in any activity that
is illegal under Section 156.303(a)(2), (3), (5), (6), (8), (9),
(10), (11), (12), (13), or (16) or Section 156.304 or is not the
personal representative of a licensed mortgage broker or loan
officer; and
(E) is not licensed as a mortgage broker or loan
officer under this chapter who is seeking to recover any
compensation in the transaction or transactions for which the
application for payment is made[;
[(3) that based on the best available information, the
judgment debtor lacks sufficient attachable assets in this state or
any other state to satisfy the judgment and the surety bond required
by Section 156.205 is not sufficient to satisfy the judgment; and
[(4) the amount that may be realized from the sale of
property or other assets liable to be sold or applied in
satisfaction of the judgment and the balance remaining due on the
judgment after application of the amount that may be realized].
(c) On receipt of the verified application, the
commissioner's staff shall:
(1) notify each appropriate license holder and the
issuer of any surety bond issued in connection with their licenses;
and
(2) investigate the application and issue a
preliminary determination, giving the applicant, the license
holder, and any surety an opportunity to resolve the matter by
agreement or to dispute the preliminary determination.
(d) If the preliminary determination under Subsection
(c)(2) is not otherwise resolved by agreement and is not disputed by
written notice to the commissioner before the 31st day after the
notification date, the preliminary determination automatically
becomes final and the commissioner shall make payment from the
fund, subject to [A recovery on the judgment against a single
defendant made before payment from the fund shall be applied first
by the creditor to actual damages.
[(d) The court shall make an order directed to the
commissioner requiring payment from the fund of the amount the
court finds to be payable on the claim, pursuant to and in
accordance with the limitations contained in this subchapter, if
the court is satisfied, on the hearing, of the truth of all matters
required to be shown by the aggrieved person under Subsection (b)
and that the aggrieved person has satisfied all of the requirements
of this section.
[(e) When the commissioner receives notice of entry of a
final judgment and a hearing is scheduled under this section, the
commissioner may notify the attorney general of the commissioner's
desire to enter an appearance, file a response, appear at the court
hearing, defend the action, or to take any other appropriate
action. In taking any action described by this subsection, the
commissioner and the attorney general shall act only to protect the
fund from spurious or unjust claims or to ensure compliance with the
requirements for recovery under this subchapter.
[(f) The commissioner may relitigate any issue material and
relevant in the hearing on the application that was determined in
the underlying action on which the judgment in favor of the
applicant was based.
[(g) If the court finds that the aggregate amount of claims
against a licensed mortgage broker or loan officer exceeds] the
limits of [contained in] Section 156.505.
(e) If the preliminary determination under Subsection
(c)(2) is disputed by the applicant, the license holder, or any
surety by written notice to the commissioner before the 31st day
after the notification date, the matter shall be set for a hearing
governed by Chapter 2001, Government Code, and the hearing rules of
the finance commission [, the court shall reduce proportionately
the amount the court finds payable on the claim].
SECTION 24. Section 156.505, Finance Code, is amended to
read as follows:
Sec. 156.505. RECOVERY LIMITS. (a) A person entitled to
receive payment out of the fund is entitled to receive
reimbursement of actual, out-of-pocket damages[, reasonable
attorney's fees, and court costs as determined by the court] as
provided by this section.
(b) A payment from the fund may be made [only pursuant to a
court order] as provided by Section 156.504 and this section. A
payment for claims:
(1) arising out of the same transaction, including
[attorney's fees,] interest, [and court costs,] is limited in the
aggregate to $25,000, regardless of the number of claimants; and
(2) [based on judgments] against a single person
licensed as a mortgage broker or loan officer under this chapter
arising out of separate transactions, including interest, is
limited in the aggregate to $50,000 until the fund has been
reimbursed for all amounts paid.
(c) In the event there are concurrent claims under
Subsections (b)(1) and (2) that exceed the amounts available under
the fund, the commissioner shall prorate recovery based on the
amount of damage suffered by each claimant.
SECTION 25. Section 156.506, Finance Code, is amended by
amending Subsections (a) and (c) and adding Subsection (a-1) to
read as follows:
(a) The commissioner may revoke a license issued under this
chapter on proof that the commissioner has made a payment from the
fund of any amount toward satisfaction of a claim [judgment]
against a [person licensed as a] mortgage broker or loan officer
under this chapter.
(a-1) The commissioner may seek to collect from a mortgage
broker or loan officer the amount paid from the fund on behalf of
the mortgage broker or loan officer and any costs associated with
investigating and processing the claim against the fund or with
collection of reimbursement for payments from the fund, plus
interest at the current legal rate until the amount has been repaid
in full. Any amount, including interest, recovered by the
commissioner shall be deposited to the credit of the fund.
(c) A person on whose behalf payment was made from the fund
is not eligible to receive a new license under this chapter until
the person has repaid in full, plus interest at the current legal
rate, the amount paid from the fund on the person's behalf and any
costs associated with investigating and processing the claim
against the fund or with collection of reimbursement for payments
from the fund.
SECTION 26. Section 156.507, Finance Code, is amended to
read as follows:
Sec. 156.507. SUBROGATION. When the commissioner has paid
an applicant [a judgment creditor] an amount from the fund under
Section 156.504 [as directed by the court], the commissioner is
subrogated to all of the rights of the applicant [judgment
creditor] to the extent of the amount paid. The applicant [judgment
creditor] shall assign all of the applicant's [creditor's] right,
title, and interest in [the judgment up to the amount paid by the
commissioner, and that amount has priority for repayment in the
event of] any subsequent [recovery on the] judgment against the
license holder, up to the[. Any] amount paid[, including interest,
recovered] by the commissioner. Any amount, including interest,
recovered by the commissioner on the assignment [judgment] shall be
deposited to the credit of the fund.
SECTION 27. Section 156.508, Finance Code, is amended to
read as follows:
Sec. 156.508. FAILURE TO COMPLY WITH SUBCHAPTER OR RULE
ADOPTED BY THE FINANCE COMMISSION. The failure of an applicant
under Section 156.504 [aggrieved person] to comply with a provision
of this subchapter relating to the fund or with a rule adopted by
the finance commission relating to the fund constitutes a waiver of
any rights under this subchapter.
SECTION 28. Sections 156.212(c) and (d) and 156.502(c),
Finance Code, are repealed.
SECTION 29. The provisions of this Act or the applications
of those provisions are severable as provided by Section
311.032(c), Government Code. If the Secretary of Housing and Urban
Development determines that any provision of this Act fails to meet
the requirements of the federal Secure and Fair Enforcement for
Mortgage Licensing Act of 2008 (Pub. L. No. 110-289), that
provision of this Act shall be held invalid; however, the remainder
of this Act or the application of the provision to other persons or
circumstances is not affected.
SECTION 30. To the extent of any conflict, this Act prevails
over another Act of the 81st Legislature, Regular Session, 2009,
relating to nonsubstantive additions to and corrections in enacted
codes.
SECTION 31. (a) Subject to Subsection (b) of this section,
this Act takes effect September 1, 2009.
(b) Sections 1, 2, and 18 of this Act take effect only if
House Bill 10 or another similar bill of the Regular Session of the
81st Legislature relating to the licensing of residential mortgage
loan originators is enacted and becomes law. If House Bill 10 or
another similar bill of the Regular Session of the 81st Legislature
relating to the licensing of residential mortgage loan originators
does not become law, Sections 1, 2, and 18 of this Act do not take
effect.
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