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Financial Services Law Insights and Observations


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  • California says all CFL licensees should use NMLS

    On October 25, the California Department of Business Oversight (DBO) published proposed regulations that (i) require all licensees under the California Financing Law (CFL) to register through NMLS; and (ii) establishes regulatory requirements for the oversight of Property Assessed Clean Energy (PACE) program administrators. Currently, under the CFL, some licensees engaged in residential mortgage origination and brokering are already licensed through the NMLS, while other lenders and brokers not engaged in the business of making or brokering loans secured with residential real property or financing PACE transactions are not on NMLS. According to the initial statement of reasons, the proposed regulations would amend existing licensing rules to transition all licensees under the CFL to registration through NMLS. Moreover, the proposed regulations implement AB 1284—which was signed into law on October 4, 2017, and, beginning January 1, 2019, requires a private entity that administers a PACE program on behalf of a public agency to be licensed under the CFL—and make conforming changes to the existing rules under the CFL. According to the DBO, the objectives of the proposed regulations “are to protect property owners who are offered PACE financing from deception, misrepresentations, or misunderstandings, to promote transparency in PACE financing, to provide oversight of persons soliciting property owners, and to facilitate a fair marketplace where the financing option can provide benefits to both property owners and the environment.” Comments on the proposed regulations are due by December 9.

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  • Texas adopts licensing requirements for MLOs

    On August 16, the Finance Commission of Texas adopted provisions to amend various licensing requirements for residential mortgage loan originators (MLOs) regulated by the state’s Office of Consumer Credit Commissioner (OCCC), and implement licensing provisions in HB 1442, which took effect September 1. The amendments adopted by the Commission in August “maintain the current one-year term, the current December 31 expiration date, and the current reinstatement period from January 1 through the last day of February.” The Commission further clarified that these amendments apply to MLOs regulated by the OCCC, not just those applying for licensure. The amendments took effect September 5.

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  • Indiana issues rule providing temporary authority for mortgage loan originators

    On August 28, the Indiana Department of Financial Institutions published in the Indiana Register an emergency rule providing 120-day temporary authority for certain mortgage loan originators (MLOs) to originate loans in Indiana without a state license, pursuant to Section 106 of the Economic Growth, Regulatory Relief, and Consumer Protection Act. The new rule provides that in order to be eligible for temporary authority to operate, an MLO, among other things, must have been licensed as an MLO in another state continuously during the past 30 days or operating as a registered MLO for a depository institution continuously for the past year. The rule permits an eligible MLO applicant to engage in mortgage transactions while their application is pending for licensure for up to 120 days or upon approval of the licensing application, whichever is sooner, beginning November 24.

    Licensing State Issues State Regulators Mortgages EGRRCPA Mortgage Licensing Mortgage Origination

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  • NYDFS fines non-licensed student loan servicer for alleged TILA disclosure violations

    On August 15, NYDFS announced a settlement with a student loan servicer and its parent company to resolve allegations that the companies failed to comply with state financial services law requirements when servicing, purchasing, and originating student financing agreements. According to the consent order, the student loan servicer—which, among other things, services student financing agreements that constitute retail installment obligations within the meaning of N.Y. Banking Law § 491(6-a)—allegedly engaged in the business of a sales finance company without being licensed by NYDFS and failed to follow the E-Sign Act’s disclosure requirements. NYDFS also claimed the companies failed to disclose to consumers (i) their right to receive non-electronic TILA disclosures; (ii) how to withdraw consent for notice by electronic means; and (iii) the method for requesting paper copy TILA disclosures. Furthermore, the companies also allegedly failed to provide consumers with a statement of the “requirements for access to and retention of TILA disclosures provided to them electronically.” In addition, NYDFS stated that the parent company provided New York consumers with promissory notes containing clauses purportedly allowing for the capitalization/compounding of interest under certain circumstances, which violated state banking laws, even though the companies contended they did not actually capitalize interest.

    In addition to paying a $203,000 civil penalty and $33,309 in disgorgement, the student loan servicer will apply for a sales finance company license and a student loan servicer license, and the companies will correct issues concerning their capitalization of interest as well as remove incorrect information from their loan documents.

    According to NYDFS, New York’s student loan servicer licensing law, which requires companies servicing student loans held by state residents to meet new standards, takes effect October 9.

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  • NYDFS proposes student loan servicers regulation

    On July 31, NYDFS published a notice of proposed rulemaking in the New York State Register. The proposed rule would implement legislation related to the supervision, regulation, and licensing of private student loan servicers passed in March as part of the state’s FY 2020 budget. As previously covered by InfoBytes, unless exempt from certain provisions, student loan servicers must comply with the requirements set forth in the amendments to the banking law and be licensed by NYDFS in order to service student loans owned by residents of New York. Entities exempt from the licensing requirements include servicers of federal student loans, banking organizations, foreign banking organizations, national banks, federal savings associations, federal credit unions, or any bank or credit union organized under the laws of any other state.

    Among other things, the proposed regulation outlines servicing standards, examination guidelines, cybersecurity compliance requirements, and definitions for the terms “unfair” and “abusive.” A list of prohibited practices is also provided, which includes: (i) employing schemes to defraud or mislead borrowers; (ii) engaging in unfair, deceptive, abusive, or predatory acts or practices; (iii) “misapplying payments to the outstanding balance of any student loan or to any related interest or fees”; (iv) making false statements or omissions connected to information provided to a government agency; (v) failing to promptly respond to communications received from NYDFS; and (vi) failing to provide responses to consumer complaints.

    Generally, the requirements will take effect October 9, with the exception of a phased-in transition period for certain cybersecurity provisions related to 23 NYCRR Part 500 that gives student loan servicers until April 9, 2020 to comply. Comments on the proposed regulation are due September 30.

    Licensing State Issues State Legislation Student Loan Servicer NYDFS Student Lending

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  • Rhode Island requires virtual currency business activity to be licensed

    On July 15, the Rhode Island governor signed HB 5847, which adds virtual currency to the existing electronic money transmission and sale of check license law and adds additional provisions clarifying the licensing process. Specifically, the bill renames Chapter 19-14.3 of Rhode Island’s General Laws titled, “Sale of Checks and Electronic Money Transfers” to “Currency Transmission” and includes within the definition of currency transmission, virtual currency. The bill defines virtual currency as a, “digital representation of value that: (A) [i]s used as a medium of exchange, unit of account, or store of value; and (B) [i]s not legal tender, whether or not denominated in legal tender.” Among other things, the bill excludes from the definition of virtual currency a “[n]ative digital token used in a proprietary blockchain service platform.” Subject to certain exceptions, the bill requires a person engaging in currency transmission business activity to be licensed with the state. Additionally, the bill, among other things, (i) requires virtual currency licensees to provide resident users of their services specified disclosures; (ii) subjects applicants and licensees to mandatory compliance programs and monitoring; and (iii) prohibits licensees from engaging in unfair, deceptive, or fraudulent practices. The act is effective January 1, 2020.

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  • Delaware authorizes participation in multi-state automated licensing system

    On June 27, the Delaware Governor signed HB 199, which, among other provisions, authorizes the Delaware State Bank Commissioner to participate in a multi-state automated licensing system that will assist in the facilitation of the application and licensing process for mortgage loan brokers, licensed lenders, mortgage loan originators, money transmitters, check cashers, and motor vehicle sales finance companies. The new legislation also permits the State Bank Commissioner to share information collected and maintained with other participating states “for the purpose of licensing, regulating, or supervising that same applicant or licensee under a statute similar to this chapter, if that state could have obtained that same information directly from the applicant or licensee under its own law.” The amendments become effective immediately.

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  • Alaska amends provisions regarding mortgage licensing exemptions

    On June 28, the Alaska governor signed HB 104, which provides limited exemptions from the state’s licensing requirements for qualifying mortgage lenders, mortgage brokers, and mortgage loan originators. Specifically, the amended exemptions include (i) bona fide nonprofit organizations, as well as employees acting as mortgage loan originators for public or charitable purposes; (ii) individuals operating as registered mortgage loan originators on behalf of exempt depository institutions and their subsidiaries, or institutions regulated by the Farm Credit Administration; (iii) certain sellers who self-finance five or fewer sales and are in compliance with the Act’s requirements; and (iv) employees of exempt federal, state, or local government agencies. Section AS 06.60.015(b)(4) is retroactively effective July 1, 2008. Sections 2, 6, and 7 are effective immediately, with the remainder of HB 104 taking effect January 1, 2020.

    Licensing State Issues State Legislation Mortgages

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  • Hawaii approves temporary authority to act as a registered mortgage loan originator

    On June 7, the Hawaii governor signed HB 988, which provides 120-day temporary authority for certain mortgage loan originators to originate loans in Hawaii without a state license. Pursuant to Section 106 of the Economic Growth, Regulatory Relief, and Consumer Protection Act, the bill allows a federally-registered mortgage loan originator (MLO) holding an MLO license in another state while employed by a Hawaii-licensed mortgage company, to have temporary authority to act as a state-licensed MLO for a period not to exceed 120 days while the MLO’s Hawaii license application is pending. MLOs with temporary authority are subject to the applicable laws of Hawaii to the same extent as persons licensed by Hawaii. The bill is effective on November 24.

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  • Maine adopts legislation to license and regulate student loan servicers

    On June 20, the Maine governor signed LD 995, which establishes a student loan bill of rights to license and regulate student loan servicers. Notably, supervised financial organizations, financial institution holding companies, mutual holding companies, and their wholly owned subsidiaries are exempt from the entire requirements of the bill; and licensed banks, credit unions, and their wholly owned subsidiaries, as well as certain Maine financial institutions, are exempt from the licensing requirements.

    The bill requires that any student loan servicer who is not exempt from the provisions of the bill—defined as, “a person, wherever located, responsible for the servicing of a student education loan to a student loan borrower”—obtain a license from the Superintendent of Consumer Credit Protection within the Department of Professional and Financial Regulation. Licenses may be renewed for 24-month periods, and renewal applications must be filed on or before September 1 of the year in which the license expires (or will be subject to a late fee); if not renewed, a license will expire on September 30 of the odd-numbered year following its issuance. Student loan servicers under contract with the U.S. Department of Education will be automatically issued limited, irrevocable licenses.

    The bill requires non-exempt student loan servicers, including licensed banks or credit unions and their wholly owned subsidiaries, to comply with certain requirements, including (i) responses to written inquires; (ii) application of payments; and (iii) repayment program evaluations. Additionally, the bill prohibits student loan servicers from, among other things, (i) engaging in unfair or deceptive practices; (ii) misapplying payments; (iii) failing to report payment histories to credit bureaus; and (iv) failing to respond within 15 days to borrower complaints submitted to the servicer by the student loan ombudsman. Violations of the bill are considered an unfair trade practice under the Maine Unfair Trade Practices Act. The bill gives the Superintendent the authority to conduct investigations and examinations and requires the Superintendent to adopt rules implementing the legislation. The law is effective January 1, 2020.

    Licensing State Issues State Legislation Student Loan Servicer Student Lending

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