AN
ACT Relating to standards for licensing mortgage brokers; amending RCW
19.146.010, 19.146.020, 19.146.0201, 19.146.030, 19.146.050, 19.146.060,
19.146.080, 19.146.200, 19.146.205, 19.146.210, 19.146.215, 19.146.220,
19.146.228, 19.146.235, 19.146.240, 19.146.245, 19.146.250, 19.146.260,
19.146.265, and 19.146.280; adding a new section to chapter 82.04 RCW; and
repealing RCW 19.146.090.
BE IT ENACTED BY THE
LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
19.146.010 and 1994 c 33 s 3 are each amended to read as follows:
Unless
the context clearly requires otherwise, the definitions in this section apply
throughout this chapter.
(1)
"Affiliate" means any person who directly or indirectly through one
or more intermediaries, controls, or is controlled by, or is under common
control with another person.
(2)
"Borrower" means any person who consults with or retains a mortgage
broker or loan originator in an effort to obtain or seek advice or information
on obtaining or applying to obtain a residential mortgage loan for himself,
herself, or persons including himself or herself, regardless of whether the
person actually obtains such a loan.
(3)
"Computer loan ((origination)) information systems" or
"((CLO)) CLI system" means the real estate mortgage
financing information system defined by rule of the director.
(4)
"Department" means the department of financial institutions.
(5)
"Designated broker" means a natural person designated by the
applicant for a license or licensee who meets the experience, education, and
examination requirements set forth in RCW 19.146.210(1)(e).
(6)
"Director" means the director of financial institutions.
(((6)))
(7) "Employee" means an individual who has an employment
relationship acknowledged by both the employee and the licensee, and the
individual is treated as an employee by the licensee for purposes of compliance
with federal income tax laws.
(((7)))
(8) "Independent contractor" or "person who independently
contracts" means any person that expressly or impliedly contracts to
perform mortgage brokering services for another and that with respect to its
manner or means of performing the services is not subject to the other's right
of control, and that is not treated as an employee by the other for purposes of
compliance with federal income tax laws.
(((8)))
(9) "Investigation" means an examination undertaken for the
purpose of detection of violations of this chapter or securing information
lawfully required under this chapter.
(10)
"Loan originator" means a person employed, either directly or
indirectly, or retained as an independent contractor by a person required to be
licensed as a mortgage broker, or a natural person who represents a person
required to be licensed as a mortgage broker, in the performance of any act
specified in subsection (((10))) (12) of this section.
(((9)))
(11) "Lock-in agreement" means an agreement with a borrower
made by a mortgage broker or loan originator, in which the mortgage broker or
loan originator agrees that, for a period of time, a specific interest rate or
other financing terms will be the rate or terms at which it will make a loan
available to that borrower.
(((10)))
(12) "Mortgage broker" means any person who for compensation
or gain, or in the expectation of compensation or gain (a) makes a residential
mortgage loan or assists a person in obtaining or applying to obtain a
residential mortgage loan or (b) holds himself or herself out as being able to
make a residential mortgage loan or assist a person in obtaining or applying to
obtain a residential mortgage loan.
(((11)))
(13) "Person" means a natural person, corporation, company, limited
liability corporation, partnership, or association.
(((12)))
(14) "Residential mortgage loan" means any loan primarily for
personal, family, or household use secured by a mortgage or deed of trust on
residential real estate upon which is constructed or intended to be constructed
a single family dwelling or multiple family dwelling of four or less units.
(((13)))
(15) "Third-party provider" means any person other than a
mortgage broker or lender who provides goods or services to the mortgage broker
in connection with the preparation of the borrower's loan and includes, but is
not limited to, credit reporting agencies, title companies, appraisers,
structural and pest inspectors, or escrow companies.
Sec.
2. RCW
19.146.020 and 1994 c 33 s 5 are each amended to read as follows:
(1)
Except as provided under subsections (2) and (3) of this section, the following
are exempt from all provisions of this chapter:
(a)
Any person doing business under the laws of ((this)) the state of
Washington or the United States relating to commercial banks, bank holding
companies, savings banks, trust companies, savings and loan associations,
credit unions, consumer loan companies, insurance companies, or real estate
investment trusts as defined in 26 U.S.C. Sec. 856 and the affiliates,
subsidiaries, and service corporations thereof;
(b)
An attorney licensed to practice law in this state who is not principally
engaged in the business of negotiating residential mortgage loans when such
attorney renders services in the course of his or her practice as an attorney;
(c)
Any person doing any act under order of any court, except for a person subject
to an injunction to comply with any provision of this chapter or any order of
the director issued under this chapter;
(d)
Any person making or acquiring a residential mortgage loan solely with his or
her own funds for his or her own investment without intending to resell the
residential mortgage loans;
(e)
A real estate broker or salesperson licensed by the state who obtains financing
for a real estate transaction involving a bona fide sale of real estate in the
performance of his or her duties as a real estate broker and who receives only
the customary real estate broker's or salesperson's commission in connection
with the transaction;
(f)
Any mortgage broker approved and subject to auditing by the federal national
mortgage association((, the government national mortgage association,))
or the federal home loan mortgage corporation;
(g)
The United States of America, the state of Washington, any other state, and any
Washington city, county, or other political subdivision, and any agency,
division, or corporate instrumentality of any of the entities in this
subsection (1)(g); and
(h)
A real estate broker who provides only information regarding rates, terms, and
lenders in connection with a ((CLO)) CLI system, who receives a fee
for providing such information, who conforms to all rules of the director with
respect to the providing of such service, and who discloses on a form approved
by the director that to obtain a loan the borrower must deal directly with a
mortgage broker or lender. However, a real estate broker shall not be exempt
if he or she does any of the following:
(i)
Holds himself or herself out as able to obtain a loan from a lender;
(ii)
Accepts a loan application, or submits a loan application to a lender;
(iii)
Accepts any deposit for third-party services or any loan fees from a borrower,
whether such fees are paid before, upon, or after the closing of the loan;
(iv)
Negotiates rates or terms with a lender on behalf of a borrower; or
(v)
Provides the disclosure required by RCW 19.146.030(1).
(2)
Those persons otherwise exempt under subsection (1)(d) or (f) of this section
must comply with RCW 19.146.0201 and shall be subject to the director's
authority to issue a cease and desist order for any violation of RCW
19.146.0201 and shall be subject to the director's authority to obtain and
review books and records that are relevant to any allegation of such a
violation.
(3)
Any person otherwise exempted from the licensing provisions of this chapter may
voluntarily submit an application to the director for a mortgage broker's
license. The director shall review such application and may grant or deny
licenses to such applicants upon the same grounds and with the same fees as may
be applicable to persons required to be licensed under this chapter.
(a)
Upon receipt of a license under this subsection, such an applicant is required
to continue to maintain a valid license, is subject to all provisions of this
chapter, and has no further right to claim exemption from the provisions of
this chapter except as provided in (b) of this subsection.
(b)
Any licensee under this subsection who would otherwise be exempted from the
requirements of licensing by RCW 19.146.020 may apply to the director for
exemption from licensing. The director shall adopt rules for reviewing such
applications and shall grant exemptions from licensing to applications which
are consistent with those rules and consistent with the other provisions of
this chapter.
Sec.
3. RCW 19.146.0201
and 1994 c 33 s 6 are each amended to read as follows:
It
is ((unlawful)) a violation of this chapter for a loan
originator, mortgage broker required to be licensed under this chapter, or
mortgage broker otherwise exempted from this chapter under RCW 19.146.020(1)
(d) or (f) in connection with a residential mortgage loan to:
(1)
Directly or indirectly employ any scheme, device, or artifice to defraud or
mislead borrowers or lenders or to defraud any person;
(2)
Engage in any unfair or deceptive practice toward any person;
(3)
Obtain property by fraud or misrepresentation;
(4)
Solicit or enter into a contract with a borrower that provides in substance
that the mortgage broker may earn a fee or commission through the mortgage
broker's "best efforts" to obtain a loan even though no loan is
actually obtained for the borrower;
(5)
Solicit, advertise, or enter into a contract for specific interest rates,
points, or other financing terms unless the terms are actually available at the
time of soliciting, advertising, or contracting from a person exempt from
licensing under RCW 19.146.020(1) (f) or (g) or a lender with whom the mortgage
broker maintains a written correspondent or loan brokerage agreement under RCW 19.146.040;
(6)
Fail to make disclosures to loan applicants and noninstitutional investors as
required by RCW 19.146.030 and any other applicable state or federal law;
(7)
Make, in any manner, any false or deceptive statement or representation with
regard to the rates, points, or other financing terms or conditions for a
residential mortgage loan or engage in bait and switch advertising;
(8)
Negligently make any false statement or knowingly and willfully make
any omission of material fact in connection with any reports filed by a ((licensee,))
mortgage broker or in connection with any ((examination of the
licensee's business)) investigation conducted by the department;
(9)
Make any payment, directly or indirectly, to any appraiser of a property, for
the purposes of influencing the independent judgment of the appraiser with
respect to the value of the property;
(10)
((Fail to include the words "licensed mortgage broker" in any
advertising for the broker's services that is directed at the general public if
the person is required to be licensed under this chapter;
(11)))
Advertise any rate of interest without conspicuously disclosing the annual
percentage rate implied by such rate of interest or otherwise fail to comply
with any requirement of the truth-in-lending act, 15 U.S.C. Sec. 1601 and
Regulation Z, 12 C.F.R. Sec. 226, the Real Estate Settlement Procedures Act,
12 U.S.C. Sec. 2601 and Regulation X, 24 C.F.R. Sec. 3500, or the equal
credit opportunity act, 15 U.S.C. Sec. 1691 and Regulation B, Sec. 202.9,
202.11, and 202.12, as now or hereafter amended, in any advertising of
residential mortgage loans or any other mortgage brokerage activity;
(((12)))
(11) Fail to pay third-party providers no later than thirty days after
the recording of the loan closing documents or ninety days after completion of
the third-party service, whichever comes first, unless otherwise agreed or
unless the third-party service provider has been notified in writing that a
bona fide dispute exists regarding the performance or quality of the
third-party service;
(((13)))
(12) Collect, charge, attempt to collect or charge or use or propose any
agreement purporting to collect or charge any fee prohibited by RCW 19.146.030
or 19.146.070;
(((14)))
(13)(a) Except when complying with (b) and (c) of this subsection, to
act as a mortgage broker in any transaction (i) in which the mortgage broker
acts or has acted as a real estate broker or salesperson or (ii) in which
another person doing business under the same licensed real estate broker acts
or has acted as a real estate broker or salesperson;
(b)
Prior to providing mortgage broker services to the borrower, the mortgage
broker, in addition to other disclosures required by this chapter and other
laws, shall provide to the borrower the following written disclosure:
THIS IS TO GIVE YOU NOTICE THAT I OR ONE OF MY
ASSOCIATES HAVE/HAS ACTED AS A REAL ESTATE BROKER OR SALESPERSON REPRESENTING
THE BUYER/SELLER IN THE SALE OF THIS PROPERTY TO YOU. I AM ALSO A LICENSED
MORTGAGE BROKER, AND WOULD LIKE TO PROVIDE MORTGAGE BROKERAGE SERVICES TO YOU
IN CONNECTION WITH YOUR LOAN TO PURCHASE THE PROPERTY.
YOU ARE NOT REQUIRED TO USE ME AS A MORTGAGE BROKER IN
CONNECTION WITH THIS TRANSACTION. YOU ARE FREE TO COMPARISON SHOP WITH OTHER
MORTGAGE BROKERS AND LENDERS, AND TO SELECT ANY MORTGAGE BROKER OR LENDER OF
YOUR CHOOSING; and
(c)
A real estate broker or salesperson licensed under chapter 18.85 RCW who also
acts as a mortgage broker shall carry on such mortgage brokerage business
activities and shall maintain such person's mortgage brokerage business records
separate and apart from the real estate brokerage activities conducted pursuant
to chapter 18.85 RCW. Such activities shall be deemed separate and apart even
if they are conducted at an office location with a common entrance and mailing
address, so long as each business is clearly identified by a sign visible to
the public, each business is physically separated within the office facility,
and no deception of the public as to the separate identities of the brokerage
business firms results. This subsection (((14))) (13)(c) shall
not require a real estate broker or salesperson licensed under chapter 18.85
RCW who also acts as a mortgage broker to maintain a physical separation within
the office facility for the conduct of its real estate and mortgage brokerage
activities where the director determines that maintaining such physical
separation would constitute an undue financial hardship upon the mortgage
broker and is unnecessary for the protection of the public; or
(((15)))
(14) Fail to comply with any provision of RCW 19.146.030 through ((19.146.090))
19.146.080 or any rule adopted under those sections.
Sec.
4. RCW
19.146.030 and 1994 c 33 s 18 are each amended to read as follows:
(1)
((Upon)) Within three business days following receipt of a loan
application ((and before the receipt of)) or any moneys from a
borrower, a mortgage broker shall provide to each borrower a full written
disclosure containing an itemization and explanation of all fees and costs that
the borrower is required to pay in connection with obtaining a residential
mortgage loan, and specifying the fee or fees which inure to the benefit of the
mortgage broker and other such disclosures as may be required by rule. A good
faith estimate of a fee or cost shall be provided if the exact amount of the
fee or cost is not determinable. This subsection shall not be construed to
require disclosure of the distribution or breakdown of loan fees, discount, or
points between the mortgage broker and any lender or investor.
(2)
The written disclosure shall contain the following information:
(a)
The annual percentage rate, finance charge, amount financed, total amount of
all payments, number of payments, amount of each payment, amount of points or
prepaid interest and the conditions and terms under which any loan terms may
change between the time of disclosure and closing of the loan; and if a
variable rate, the circumstances under which the rate may increase, any
limitation on the increase, the effect of an increase, and an example of the
payment terms resulting from an increase. Disclosure in compliance with the
requirements of the Truth-in-Lending Act, 15 U.S.C. Sec. 1601 and Regulation Z,
12 C.F.R. Sec. 226, as now or hereafter amended, shall be deemed to comply with
the disclosure requirements of this subsection;
(b)
The itemized costs of any credit report, appraisal, title report, title
insurance policy, mortgage insurance, escrow fee, property tax, insurance,
structural or pest inspection, and any other third-party provider's costs
associated with the residential mortgage loan. Disclosure through good faith
estimates of settlement services and special information booklets in compliance
with the requirements of the Real Estate Settlement Procedures Act, 12 U.S.C.
Sec. 2601, and Regulation X, 24 C.F.R. Sec. 3500, as now or hereafter amended,
shall be deemed to comply with the disclosure requirements of this subsection;
(c)
If applicable, the cost, terms, duration, and conditions of a lock-in agreement
and whether a lock-in agreement has been entered, and whether the lock-in
agreement is guaranteed by the mortgage broker or lender, and if a lock-in
agreement has not been entered, disclosure in a form ((approved by)) acceptable
to the director that the disclosed interest rate and terms are subject to
change;
(d)
A statement that if the borrower is unable to obtain a loan for any reason, the
mortgage broker must, within five days of a written request by the borrower,
give copies of any appraisal, title report, or credit report paid for by the
borrower to the borrower, and transmit the appraisal, title report, or credit
report to any other mortgage broker or lender to whom the borrower directs the
documents to be sent;
(e)
((The name of the lender and the nature of the business relationship between
the lender providing the residential mortgage loan and the mortgage broker, if
any: PROVIDED, That this disclosure may be made at any time up to the time the
borrower accepts the lender's commitment)) Whether and under what
conditions any lock-in fees are refundable to the borrower; and
(f)
A statement providing that moneys paid by the borrower to the mortgage broker
for third-party provider services are held in a trust account and any moneys
remaining after payment to third-party providers will be refunded.
(3)
If subsequent to the written disclosure being provided under this section, a
mortgage broker enters into a lock-in agreement with a borrower or represents
to the borrower that the borrower has entered into a lock-in agreement, then no
less than three business days thereafter including Saturdays, the mortgage
broker shall deliver or send by first-class mail to the borrower a written
confirmation of the terms of the lock-in agreement, which shall include a copy
of the disclosure made under subsection (2)(c) of this section.
(4)
((A violation of the Truth-in-Lending Act, Regulation Z, the Real Estate
Settlement Procedures Act, and Regulation X is a violation of this section for
purposes of this chapter.
(5))) A
mortgage broker shall not charge any fee that inures to the benefit of the
mortgage broker if it exceeds the fee disclosed on the written disclosure
pursuant to this section, unless (a) the need to charge the fee was not
reasonably foreseeable at the time the written disclosure was provided and (b)
the mortgage broker has provided to the borrower, no less than three business
days prior to the signing of the loan closing documents, a clear written
explanation of the fee and the reason for charging a fee exceeding that which
was previously disclosed. However, if the borrower's closing costs, excluding
prepaid escrowed costs of ownership as defined by rule, does not exceed the
total closing costs in the most recent good faith estimate, no other
disclosures shall be required by this subsection.
Sec.
5. RCW
19.146.050 and 1987 c 391 s 7 are each amended to read as follows:
All
moneys received by a mortgage broker from a borrower for payment of third-party
provider services shall be deemed as held in trust immediately upon receipt by
the mortgage broker. A mortgage broker shall deposit, prior to the end of
the ((next)) third business day following receipt of such
trust funds, all ((moneys received from borrowers for third-party
provider services)) such trust funds in a trust account of a
federally insured financial institution located in this state. All trust
account funds collected under this chapter must remain on deposit in a trust
account in the state of Washington until disbursement. The trust account
shall be designated and maintained for the benefit of borrowers. Moneys
maintained in the trust account shall be exempt from execution, attachment, or
garnishment. A mortgage broker shall not in any way encumber the corpus of the
trust account or commingle any other operating funds with trust account funds.
Withdrawals from the trust account shall be only for the payment of bona fide
services rendered by a third-party provider or for refunds to borrowers. The
director shall make rules which: (1) Direct mortgage brokers how to handle
checks and other instruments that are received by the broker and that combine
trust funds with other funds; and (2) permit transfer of trust funds out of the
trust account for payment of other costs only when necessary and only with the
prior express written permission of the borrower. Any interest earned on
the trust account shall be refunded or credited to the borrowers at closing. Trust
accounts that are operated in a manner consistent with this section and any
rules adopted by the director, are considered exempt from taxation under
chapter 82.04 RCW.
Sec.
6. RCW
19.146.060 and 1994 c 33 s 20 are each amended to read as follows:
(1)
A mortgage broker shall use generally accepted accounting principles.
(2)
Except as otherwise provided in subsection (3) of this section, a
mortgage broker shall maintain accurate((,)) and current((,
and readily available)) books and records which shall be readily
available at the mortgage broker's usual business location until at least ((four
years)) twenty-five months have elapsed following the effective
period to which the books and records relate.
(3)
Where a mortgage broker's usual business location is outside of the state of
Washington, the mortgage broker shall, as determined by the director by rule,
either maintain its books and records at a location in this state, or reimburse
the director for his or her expenses, including but not limited to
transportation, food, and lodging expenses, relating to any examination or
investigation resulting under this chapter.
(4)
"Books and records" includes but is not limited to:
(a)
Copies of all advertisements placed by or at the request of the mortgage broker
which mention rates or fees. In the case of radio or television
advertisements, or advertisements placed on a telephonic information line or
other electronic source of information including but not limited to a computer
data base or electronic bulletin board, a mortgage broker shall keep copies of
the precise script for the advertisement. All advertisement records shall
include for each advertisement the date or dates of publication and name of
each periodical, broadcast station, or telephone information line which
published the advertisement or, in the case of a flyer or other material distributed
by the mortgage broker, the dates, methods, and areas of distribution; and
(b)
Copies of all documents, notes, computer records if not stored in printed form,
correspondence or memoranda relating to a borrower from whom the mortgage
broker has accepted a deposit or other funds, or accepted a residential
mortgage loan application or with whom the mortgage broker has entered into an
agreement to assist in obtaining a residential mortgage loan.
Sec.
7. RCW
19.146.080 and 1987 c 391 s 10 are each amended to read as follows:
Except
as otherwise required by the United States Code or the Code of Federal
Regulations, now or as amended, if a borrower is unable to obtain a loan
for any reason and the borrower has paid for an appraisal, title report, or
credit report in full, the mortgage broker shall give a copy of the
appraisal, title report, or credit report to the borrower and transmit the
originals to any other mortgage broker or lender to whom the borrower directs
that the documents be transmitted. Regardless of whether the borrower has
obtained a loan, the mortgage broker must provide the copies or transmit
the documents within five days after the borrower has made the request in
writing.
Sec.
8. RCW
19.146.200 and 1994 c 33 s 7 are each amended to read as follows:
(1)
A person may not engage in the business of a mortgage broker, except as an
employee of a person licensed or exempt from licensing, without first obtaining
and maintaining a license under this chapter. However, a person who
independently contracts with a licensed mortgage broker need not be licensed if
the licensed mortgage broker and the independent contractor have on file with
the director a binding written agreement under which the licensed mortgage
broker assumes responsibility for the independent contractor's violations of
any provision of this chapter or rules adopted under this chapter; and if the
licensed mortgage broker's bond or other security required under this chapter
runs to the benefit of the state and any person who suffers loss by reason of
the independent contractor's violation of any provision of this chapter or
rules adopted under this chapter.
(2)
A person may not bring a suit or action for the collection of compensation as a
mortgage broker unless the plaintiff alleges and proves that he or she was a
duly licensed mortgage broker, or exempt from the license requirement of this
chapter, at the time of offering to perform or performing any such an act or service
regulated by this chapter. This subsection does not apply to suits or actions
for the collection or compensation for services performed prior to the
effective date of section 5, chapter 468, Laws of 1993.
(3)
The license must be prominently displayed in the mortgage broker's place of
business.
Sec.
9. RCW
19.146.205 and 1994 c 33 s 8 are each amended to read as follows:
(1)
Application for a mortgage broker license under this chapter shall be in
writing and in the form prescribed by the director. ((Unless waived by the
director,)) The application shall contain at least the following
information:
(a)
The name, address, date of birth, and social security number of the applicant,
and any other names, dates of birth, or social security numbers previously used
by the applicant, unless waived by the director;
(b)
If the applicant is a partnership or association, the name, address, date of
birth, and social security number of each general partner or principal of the
association, and any other names, dates of birth, or social security numbers
previously used by the members, unless waived by the director;
(c)
If the applicant is a corporation, the name, address, date of birth, and social
security number of each officer, director, registered agent, and each principal
stockholder, and any other names, dates of birth, or social security numbers
previously used by the officers, directors, registered agents, and principal
stockholders unless waived by the director;
(d)
The street address, county, and municipality where the principal business
office is to be located;
(e)
((Submission of)) The name, address, date of birth, and social security
number of the applicant's designated broker, and any other names, dates of
birth, or social security numbers previously used by the designated broker and
a complete set of the designated broker's fingerprints taken by an
authorized law enforcement officer; and
(f)
Such other information regarding the applicant's or designated broker's
background, financial responsibility, experience, character, and general
fitness as the director may require by rule.
(2)
The director may exchange fingerprint data with the federal bureau of
investigation.
(3)
At the time of filing an application for a license under this chapter, each
applicant shall pay to the director the appropriate application fee in an
amount determined by rule of the director in accordance with RCW 43.24.086 to
cover, but not exceed, the cost of processing and reviewing the application.
The director shall deposit the moneys in the banking examination fund, unless
the consumer services account is created as a dedicated, nonappropriated account,
in which case the director shall deposit the moneys in the consumer services
account.
(((3)))
(4)(a) Each applicant for a mortgage broker's license shall file and
maintain a surety bond, in an amount of not greater than sixty thousand dollars
nor less than twenty thousand dollars which the director deems adequate to
protect the public interest, executed by the applicant as obligor and by a
surety company authorized to do a surety business in this state as surety. The
bonding requirement as established by the director may take the form of a
uniform bond amount for all licensees or the director may establish by rule a
schedule establishing a range of bond amounts which shall vary according to the
annual average number of loan originators or independent contractors of a
licensee. The bond shall run to the state of Washington as obligee, and shall
run first to the benefit of the borrower and then to the benefit of the
state and any person or persons who suffer loss by reason of the applicant's or
its loan originator's violation of any provision of this chapter or rules
adopted under this chapter. The bond shall be conditioned that the obligor as
licensee will faithfully conform to and abide by this chapter and all rules
adopted under this chapter, and shall reimburse all persons who suffer loss by
reason of a violation of this chapter or rules adopted under this chapter. Borrowers
shall be given priority over the state and other persons. The state and other
third parties shall be allowed to receive distribution pursuant to a valid
claim against the remainder of the bond. In the case of claims made by any
person or entity who is not a borrower, no final judgment may be entered prior
to one hundred eighty days following the date the claim is filed. The bond
shall be continuous and may be canceled by the surety upon the surety giving
written notice to the director of its intent to cancel the bond. The
cancellation shall be effective thirty days after the notice is received by the
director. Whether or not the bond is renewed, continued, reinstated, reissued,
or otherwise extended, replaced, or modified, including increases or decreases
in the penal sum, it shall be considered one continuous obligation, and the
surety upon the bond shall not be liable in an aggregate or cumulative amount
exceeding the penal sum set forth on the face of the bond. In no event shall
the penal sum, or any portion thereof, at two or more points in time be added
together in determining the surety's liability. The bond shall not be liable
for any penalties imposed on the licensee, including, but not limited to, any
increased damages or attorneys' fees, or both, awarded under RCW 19.86.090.
The applicant may obtain the bond directly from the surety or through a group
bonding arrangement involving a professional organization comprised of mortgage
brokers if the arrangement provides at least as much coverage as is required
under this subsection.
(b)
In lieu of a surety bond, the applicant may, upon approval by the director,
file with the director a certificate of deposit, an irrevocable letter of
credit, or such other instrument as approved by the director by rule, drawn in
favor of the director for an amount equal to the required bond.
(c)
In lieu of the surety bond or compliance with (b) of this subsection, an
applicant may obtain insurance or coverage from an association comprised of
mortgage brokers that is organized as a mutual corporation for the sole purpose
of insuring or self-insuring claims that may arise from a violation of this
chapter. An applicant may only substitute coverage under this subsection for
the requirements of (a) or (b) of this subsection if the director, with the
consent of the insurance commissioner, has authorized such association to
organize a mutual corporation under such terms and conditions as may be imposed
by the director to ensure that the corporation is operated in a financially
responsible manner to pay any claims within the financial responsibility limits
specified in (a) of this subsection.
Sec.
10. RCW
19.146.210 and 1994 c 33 s 10 are each amended to read as follows:
(1)
The director shall issue and deliver a mortgage broker license to an applicant
if, after investigation, the director makes the following findings:
(a)
The applicant has paid the required license fees;
(b)
The applicant has complied with RCW 19.146.205;
(c)
Neither the applicant ((nor)), any of its principals ((has)),
or the designated broker have had a license issued under this chapter or
any similar state statute suspended or revoked within five years of the filing
of the present application;
(d)
Neither the applicant ((nor)), any of its principals ((has)),
or the designated broker have been convicted of a gross misdemeanor
involving dishonesty or financial misconduct or a felony within seven years of
the filing of the present application;
(e)
((Either the applicant or one of its principals, who may be designated by
the applicant)) The designated broker, (i) has at least two years of
experience in the residential mortgage loan industry or has completed the
educational requirements established by rule of the director and (ii) has
passed a written examination whose content shall be established by rule of the
director; and
(f)
The applicant has demonstrated financial responsibility, character, and general
fitness such as to command the confidence of the community and to warrant a
belief that the business will be operated honestly, fairly, and efficiently
within the purposes of this chapter.
(2)
If the director does not find the conditions of subsection (1) of this section
have been met, the director shall not issue the license. The director shall
notify the applicant of the denial and return to the applicant the bond or
approved alternative and any remaining portion of the license fee that exceeds
the department's actual cost to investigate the license.
(3)
The director shall issue a license under this chapter to any licensee issued a
license under chapter 468, Laws of 1993, that has a valid license and is
otherwise in compliance with the provisions of this chapter.
(4)
A license issued pursuant to this chapter is valid from the date of issuance
with no fixed date of expiration.
(5)
A licensee may surrender a license by delivering to the director written notice
of surrender, but the surrender does not affect the licensee's civil or
criminal liability arising from acts or omissions occurring before such
surrender.
(6)
To prevent undue delay in the issuance of a license and to facilitate the
business of a mortgage broker, an interim license with a fixed date of
expiration may be issued when the director determines that the mortgage broker
has substantially fulfilled the requirements for licensing as defined by rule.
Sec.
11. RCW
19.146.215 and 1994 c 33 s 11 are each amended to read as follows:
((Either
the applicant or one of its principals, who may be designated by the applicant,
and every branch manager)) The designated broker of every licensee
shall complete an annual continuing education requirement, which the director
shall define by rule.
Sec.
12. RCW
19.146.220 and 1996 c 103 s 1 are each amended to read as follows:
(1)
The director shall enforce all laws and rules relating to the licensing of
mortgage brokers, grant or deny licenses to mortgage brokers, and hold
hearings.
(2)
The director may impose the following sanctions:
(a)
Deny applications for licenses for: (i) Violations of orders, including cease
and desist orders issued under this chapter; or (ii) any violation of RCW
19.146.050 or 19.146.0201 (1) through (9);
(b)
Suspend or revoke licenses for:
(i)
False statements or omission of material information on the application that,
if known, would have allowed the director to deny the application for the
original license;
(ii)
Failure to pay a fee required by the director or maintain the required bond;
(iii)
Failure to comply with any directive or order of the director; or
(iv)
Any violation of RCW 19.146.050, 19.146.060(3), 19.146.0201 (1) through
(9) or (((13))) (12), 19.146.205(((3))) (4), or
19.146.265;
(c)
Impose fines on the licensee, employee or loan originator of the licensee, or
other person subject to this chapter for:
(i)
Any violations of RCW 19.146.0201 (1) through (9) or (((13))) (12),
19.146.030 through ((19.146.090)) 19.146.080, 19.146.200,
19.146.205(((3))) (4), or 19.146.265; or
(ii)
Failure to comply with any directive or order of the director;
(d)
Issue orders directing a licensee, its employee or loan originator, or other
person subject to this chapter to:
(i)
Cease and desist from conducting business in a manner that is injurious to the
public or violates any provision of this chapter; or
(ii)
Pay restitution to an injured borrower; or
(e)
Issue orders removing from office or prohibiting from participation in the
conduct of the affairs of a licensed mortgage broker, or both, any officer,
principal, employee, or loan originator of any licensed mortgage broker or any
person subject to licensing under this chapter for:
(i)
Any violation of 19.146.0201 (1) through (9) or (((13))) (12),
19.146.030 through ((19.146.090)) 19.146.080, 19.146.200,
19.146.205(((3))) (4), or 19.146.265; or
(ii)
False statements or omission of material information on the application that,
if known, would have allowed the director to deny the application for the
original license;
(iii)
Conviction of a gross misdemeanor involving dishonesty or financial misconduct
or a felony after obtaining a license; or
(iv)
Failure to comply with any directive or order of the director.
(3)
Each day's continuance of a violation or failure to comply with any directive
or order of the director is a separate and distinct violation or failure.
(4)
The director shall establish by rule standards for licensure of applicants
licensed in other jurisdictions. ((Every licensed mortgage broker that does
not maintain a physical office within the state must maintain a registered
agent within the state to receive service of any lawful process in any judicial
or administrative noncriminal suit, action, or proceeding, against the licensed
mortgage broker which arises under this chapter or any rule or order under this
chapter, with the same force and validity as if served personally on the
licensed mortgage broker. Service upon the registered agent shall be effective
if the plaintiff, who may be the director in a suit, action, or proceeding
instituted by him or her, sends notice of the service and a copy of the process
by registered mail to the defendant or respondent at the last address of the
respondent or defendant on file with the director. In any judicial action,
suit, or proceeding arising under this chapter or any rule or order adopted
under this chapter between the department or director and a licensed mortgage
broker who does not maintain a physical office in this state, venue shall be
exclusively in the superior court of Thurston county.))
Sec.
13. RCW
19.146.228 and 1994 c 33 s 9 are each amended to read as follows:
The
director shall establish fees by rule in accordance with RCW 43.24.086
sufficient to cover, but not exceed, the costs of administering this chapter.
These fees may include:
(1)
An annual assessment paid by each licensee on or before a date specified by
rule;
(2)
An ((examination)) investigation fee to cover the costs of any ((examination))
investigation of the books and records of a licensee or other person
subject to this chapter; and
(3)
An application fee to cover the costs of processing applications made to the
director under this chapter.
Mortgage
brokers shall not be charged investigation fees for the processing of
complaints when the investigation determines that no violation of this chapter
occurred or when the mortgage broker provides a remedy satisfactory to the
complainant and the director and no order of the director is issued. All
moneys, fees, and penalties collected under the authority of this chapter shall
be deposited into the banking examination fund, unless the consumer services
account is created as a dedicated, nonappropriated account, in which case all
moneys, fees, and penalties collected under this chapter shall be deposited in
the consumer services account.
Sec.
14. RCW
19.146.235 and 1994 c 33 s 17 are each amended to read as follows:
For
the purposes of investigating complaints arising under this chapter, the
director may at any time, either personally or by a designee, examine the
business, including but not limited to the books, accounts, records, and files
used therein, of every licensee and of every person engaged in the business of
mortgage brokering, whether such a person shall act or claim to act under or
without the authority of this chapter. For that purpose the director and
designated representatives shall have access during regular business hours to
the offices and places of business, books, accounts, papers, records, files,
safes, and vaults of all such persons. The director or designated person may
((require)) direct or order the attendance of and examine under
oath all persons whose testimony may be required about the loans or the business
or subject matter of any such examination or investigation, and may
direct or order such person to produce books, accounts, records, files, and any
other documents the director or designated person deems relevant to the
inquiry. If a person who receives such a directive or order does not attend
and testify, or does not produce the requested books, records, files, or other
documents within the time period established in the directive or order, then
the director or designated person may issue a subpoena requiring attendance or
compelling production of books, records, files, or other documents. No
person subject to examination or investigation under this chapter shall
withhold, abstract, remove, mutilate, destroy, or secrete any books, records,
computer records, or other information.
Once
during the first two years of licensing, the director may visit, either
personally or by designee, the licensee's place or places of business to
conduct a compliance examination. The director may examine, either personally
or by designee, a sample of the licensee's loan files, interview the licensee
or other designated employee or independent contractor, and undertake such
other activities as necessary to ensure that the licensee is in compliance with
the provisions of this chapter. For those licensees issued licenses prior to
March 21, 1994, the cost of such an examination shall be considered to have
been prepaid in their license fee. After this one visit within the two-year
period subsequent to issuance of a license, the director or a designee may
visit the licensee's place or places of business only to ensure that corrective
action has been taken or to investigate a complaint.
Sec.
15. RCW
19.146.240 and 1994 c 33 s 21 are each amended to read as follows:
(1)
The director or any person injured by a violation of this chapter may
bring an action against the surety bond or approved alternative of the licensed
mortgage broker who committed the violation or who employed or engaged the loan
originator who committed the violation.
(2)
((A)) (a) The director or any person who is damaged by the
licensee's or its loan originator's violation of this chapter, or rules adopted
under this chapter, may bring suit upon the surety bond or approved alternative
in the superior court of any county in which jurisdiction over the licensee may
be obtained. Jurisdiction shall be exclusively in the superior court. Any
such action must be brought not later than one year after the alleged violation
of this chapter or rules adopted under this chapter. Except as provided in
subsection (2)(b) of this section, in the event valid claims of
borrowers against a bond or deposit exceed the amount of the bond or
deposit, each borrower claimant shall only be entitled to a pro rata
amount, based on the amount of the claim as it is valid against the bond or
deposit, without regard to the date of filing of any claim or action. If,
after all valid borrower claims are paid, valid claims by nonborrower claimants
exceed the remaining amount of the bond or deposit, each nonborrower claimant
shall only be entitled to a pro rata amount, based on the amount of the claim
as it is valid against the bond or deposit, without regard to the date of the
filing or any claim or action. A judgment arising from a violation of this
chapter or rule adopted under this chapter shall be entered for actual damages
and in no case be less than the amount paid by the borrower to the licensed
mortgage broker plus reasonable attorneys' fees and costs. In no event shall
the surety bond or approved alternative provide payment for any trebled or
punitive damages.
(b)
Borrowers shall be given priority over the director and other persons in
distributions in actions against the surety bond. The director and other third
parties shall then be entitled to distribution to the extent of their claims as
found valid against the remainder of the bond. In the case of claims made by
any person or entity who is not a borrower, no final judgment may be entered
prior to one hundred eighty days following the date the claim is filed. This
provision regarding priority shall not restrict the right of any claimant to
file a claim within one year.
(3)
The remedies provided under this section are cumulative and nonexclusive and do
not affect any other remedy available at law.
Sec.
16. RCW
19.146.245 and 1994 c 33 s 22 are each amended to read as follows:
A
licensed mortgage broker is liable for any conduct violating this chapter by the
designated broker, a loan originator, or other licensed mortgage
broker while employed or engaged by the licensed mortgage broker. ((In
addition, a branch office manager is liable for any conduct violating this
chapter by a loan originator or other licensed mortgage broker employed or
engaged at the branch office.))
Sec.
17. RCW
19.146.250 and 1993 c 468 s 16 are each amended to read as follows:
No
license issued under the provisions of this chapter shall authorize any person
other than the person to whom it is issued to do any act by virtue thereof nor
to operate in any other manner than under his or her own name except:
(1)
A licensed mortgage broker may operate or advertise under a name other than the
one under which the license is issued by obtaining the written consent of the
director to do so; and
(2)
A broker may establish one or more branch offices under a name or names
different from that of the main office if the name or names are approved by the
director, so long as each branch office is clearly identified as a branch or
division of the main office. ((No broker may establish branch offices under
more than three names.)) Both the name of the branch office and of the
main office must clearly appear on the sign identifying the office, if any, and
in any advertisement or on any letterhead of any stationery or any forms, or
signs used by the mortgage firm on which either the name of the main or branch
offices appears.
Sec.
18. RCW
19.146.260 and 1994 c 33 s 23 are each amended to read as follows:
((Every
licensed mortgage broker must have and maintain an office in this state, or
within thirty miles of the border of this state, accessible to the public and
which shall serve as his or her office for the transaction of business. The
broker's license must be prominently displayed.)) Every licensed mortgage
broker that does not maintain a physical office within the state must maintain
a registered agent within the state to receive service of any lawful process in
any judicial or administrative noncriminal suit, action, or proceeding against
the licensed mortgage broker which arises under this chapter or any rule or order
under this chapter, with the same force and validity as if served personally on
the licensed mortgage broker. Service upon the registered agent shall not be
effective unless the plaintiff, who may be the director in a suit, action, or
proceeding instituted by him or her, no later than the next business day sends
notice of the service and a copy of the process by registered mail to the
defendant or respondent at the last address of the respondent or defendant on
file with the director. In any judicial action, suit, or proceeding arising
under this chapter or any rule or order adopted under this chapter between the
department or director and a licensed mortgage broker who does not maintain a
physical office in this state, venue shall be exclusively in the superior court
of the Thurston county.
Sec.
19. RCW
19.146.265 and 1994 c 33 s 24 are each amended to read as follows:
A
licensed mortgage broker may apply to the director for authority to establish
one or more branch offices under the same or different name as the main office
upon the payment of a fee as prescribed by the director by rule. Provided
that the applicant is in good standing with the department, as defined in rule
by the director, the director shall promptly issue a duplicate
license for each of the branch offices showing the location of the main office
and the particular branch. Each duplicate license shall be prominently
displayed in the office for which it is issued. ((Each branch office shall
be required to have a branch manager who meets the experience and educational
requirements for branch managers as established by rule of the director.))
Sec.
20. RCW
19.146.280 and 1994 c 33 s 26 are each amended to read as follows:
(1)
There is established the mortgage brokerage commission consisting of five
commission members who shall act in an advisory capacity to the director on
mortgage brokerage issues.
(2)
The director shall appoint the members of the commission, weighing the recommendations
from professional organizations representing mortgage brokers. At least three
of the commission members shall be mortgage brokers ((required to apply for
a mortgage brokers license)) licensed under this chapter and at
least one shall be exempt from licensure under RCW 19.146.020(1)(f). No
commission member shall be appointed who has had less than five years'
experience in the business of residential mortgage lending. In addition, the
director or a designee shall serve as an ex officio, nonvoting member of the
commission. Voting members of the commission shall serve for two-year terms
with three of the initial commission members serving one-year terms. The
department shall provide staff support to the commission.
(3)
The commission may establish a code of conduct for its members. Any
commissioner may bring a motion before the commission to remove a commissioner
for failing to conduct themselves in a manner consistent with the code of
conduct. The motion shall be in the form of a recommendation to the director
to dismiss a specific commissioner and shall enumerate causes for doing so.
The commissioner in question shall recuse himself or herself from voting on any
such motion. Any such motion must be approved unanimously by the remaining four
commissioners. Approved motions shall be immediately transmitted to the
director for review and action.
(4)
Members of the commission shall be reimbursed for their travel expenses
incurred in carrying out the provisions of this chapter in accordance with RCW
43.03.050 and 43.03.060. All costs and expenses associated with the commission
shall be paid from the banking examination fund, unless the consumer services
account is created as a dedicated, nonappropriated account, in which case all
costs and expenses shall be paid from the consumer services account.
(((4)))
(5) The commission shall advise the director on the characteristics and
needs of the mortgage brokerage profession.
(((5)))
(6) The department, in consultation with other applicable agencies of
state government, shall conduct a continuing review of the number and type of
consumer complaints arising from residential mortgage lending in the state.
The department shall report its findings to the senate committee on ((labor
and commerce)) financial institutions and house of representatives
committee on financial institutions and insurance along with recommendations
for any changes in the licensing requirements of this chapter, ((no later
than December 1, 1996)) biennially by December 1st of each even-numbered
year.
NEW
SECTION. Sec. 21. A
new section is added to chapter 82.04 RCW to read as follows:
This
chapter shall not apply to amounts received from trust accounts that are
operated in a manner consistent with RCW 19.146.050 and any rules adopted by
the director of financial institutions.
NEW
SECTION. Sec. 22. If
any provision of this act or its application to any person or circumstance is
held invalid, the remainder of the act or the application of the provision to
other persons or circumstances is not affected.
NEW SECTION. Sec. 23. RCW 19.146.090 and
1987 c 391 s 11 are each repealed.
