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On May 24, the Texas governor signed SB 43, which amends various provisions related to residential mortgage loans, including those related to the financing of residential real estate purchases through the use of wrap mortgage loans, as well as various licensing and registration requirements. The act adds a new section related to wrap mortgage loan financing that will subject wrap loans to regulation like other mortgage loan products in order to provide certain protections for buyers and sellers, including written disclosures, tolling of limitations, closing requirements, and fiduciary duties. Among other things, the act defines certain terms, outlines exemptions, and will (i) prohibit a person from originating or making a wrap mortgage loan unless the person is licensed or registered to originate or make residential mortgage loans under certain statutory provisions, unless exempt; (ii) mandate specific disclosures related to wrap mortgages; (iii) authorize the savings and mortgage lending commissioner (commissioner) to conduct an inspection or investigation of a registered wrap lender; and (iv) authorize the commissioner to issue subpoenas and cease-and-desist orders to wrap lenders or wrap mortgage loan originators reasonably believed to have violated these provisions, and, if a violation is determined to have occurred, permits the commissioner to impose an administrative penalty of no more than $1,000 for each day of the violation. The commissioner may also seek injunctive relief. The act takes effect January 1, 2022.
On May 12, the Vermont governor signed SB 88, which amends various provisions related to insurance, banking, and securities, including those related to licensing applications and the annual renewal process. Among other things, the act (i) repeals certain licensing fees related to mortgage broker applications and loan servicer license renewals; (ii) increases the fee that licensees who do not timely file annual reports will be charged from $100 to $1,000 for each month or part of a month that the report is past due; (iii) specifies that mortgage loan originators and a licensee’s employees may work remotely provided they are assigned to a licensed location, are “adequately supervised by the licensee,” and meet any addition required conditions; and (iv) repeals certain provisions related to the surrender of a license in the event it is suspended, revoked, or terminated. The licensing amendments take effect immediately.
On May 10, the Arizona governor signed into law SB 1463, a bill that makes various changes to the Arizona Department of Insurance and Financial Institutions (DIFI). Among other things, SB 1463 (i) eliminates certain application fees for financial institutions, enterprises, money transmitters, and collection agencies; (ii) establishes nonrefundable fees for advance fee loan brokers and for premium finance company branch offices; (iii) revises the annual assessment and renewal fee structure for enterprises, consumer lenders, premium finance companies, advance fee loan brokers, and collection agencies; (iv) clarifies that licensee name change fees for financial institution and enterprise licensees do not apply to loan originators and appraiser licensees; (v) allows the Deputy Director to engage a contractor for mortgage broker license testing; (vi) stipulates that the Uniform Standards of Professional Appraisal Practice are the standards in Arizona, unless the Deputy Director objects; (vii) requires licensee applicants to pass a written examination under the supervision of DIFI; (viii) requires mortgage brokers, mortgage bankers, or commercial mortgage bankers who are licensed as exempt persons to deposit a surety bond with the Deputy Director in order to do business; (ix) defines the phrase “federally regulated appraisal management company”; (x) modifies the definitions of “consumer loan” and “control”; and (xi) stipulates that a consumer loan made pursuant to a consumer lender license is not a secondary motor vehicle finance transaction. SB 1462 goes into effect 90 days after the Arizona legislature adjourns and will be retroactive to July 1, 2020.
On May 10, the Washington governor signed into law SB 5025, a bill that increases fines for unfair methods of competition and unfair or deceptive acts or practices under the state’s Consumer Protection Improvement Act (Act). Among other things, the bill (i) increases the maximum civil penalty for persons who violate the terms of any injunction issued under the Act from $25,000 to $125,000; (ii) increases the maximum civil penalty for violations of RCW 19.86.030 or 19.86.040 to $180,000 for individuals (previously $100,000) and $900,000 for persons other than individuals (previously $500,000); (iii) increases the maximum civil penalty for violations of RCW 19.86.020 to $7,500 from $2,000; and (iv) provides that unlawful acts or practices targeting or impacting individuals or communities based on characteristics including “age, race, national origin, citizenship or immigration status, sex, sexual orientation, presence of any sensory, mental, or physical disability, religion, veteran status, or status as a member of the armed forces” carry an enhanced penalty of $5,000. Additionally, by December 1, 2022, the Washington attorney general is required to “evaluate the efficacy of the maximum civil penalty amounts established in this section in deterring violations of the consumer protection act and the difference, if any, between the current penalty amounts and the penalty amounts adjusted for inflation, and provide the legislature with a report of its findings and any recommendations.” The Act goes into effect July 25.
On April 27, the Oklahoma governor signed SB 261, which creates the Oklahoma Student Borrower’s Bill of Rights Act and outlines new provisions for student loan servicers. Among other things, the act prohibits student loan servicers from (i) directly or indirectly defrauding or misleading student loan borrowers; (ii) engaging in unfair or deceptive practices, such as “misrepresenting the amount, nature or terms of any fee or payment due or claimed to be due on a student education loan, the terms and conditions of the loan agreement or the borrower’s obligations under the loan”; (iii) obtaining property by fraud or misrepresentation; (iv) incorrectly applying or failing to apply a borrower’s loan payments to an outstanding balance; (v) providing inaccurate information to a credit bureau about a borrower; (vi) failing to report a borrower’s favorable and unfavorable payment history at least once a year except in the case of loan rehabilitation; (vii) refusing to communicate with a borrower’s authorized representative; (viii) making false statements or misrepresenting by omission any material facts in connection with a government investigation; (ix) failing to inform borrowers of their federal income repayment options prior to offering deferment or forbearance; and (x) failing to inform borrowers if their loan does not qualify for a loan forgiveness program. The act takes effect November 1.
On April 21, the governor of Oklahoma signed SB 796, which amends the loan finance charge limit for supervised lenders. Specifically, a loan finance charge “may not exceed the equivalent of the greater of either” 25 percent per year on an unpaid principal balance or: (i) 32 percent annually on unpaid principal of $7,000 or less; (ii) 23 percent annually on unpaid principal that is greater than $7,000 but does not exceed $11,000; and (iii) 20 percent annually on unpaid principal of more than $11,000. The act also allows lenders to charge a closing fee of up to $28.85. The act takes effect November 1.
The North Dakota governor also signed into law SB 2103 on April 16, which, when it takes effect on August 1, imposes limits on charges that licensed money brokers can assess, including a 36 percent annual interest rate limit on installment loans, and caps nonpayment or late payment fees at five percent for loans greater than $50,000. The act also includes additional restrictions for loans of less than $2,000, including that (i) the maximum term for an installment loan may not exceed 36 months and balloon payments are prohibited; (ii) existing loan balances may be refinanced into a new loan, provided it is less than $2,000 and “the combination of any refinance fees along with any fees collected as part of the original loans” do “not exceed one hundred dollars per calendar year”; and (iii) licensees may not contract for or receive charges exceeding $100 for a loan extension or payment deferment.
On April 13, the Maryland governor signed SB 251, which amends provisions related to licensing requirements for nondepository institutions. Among other things, the act (i) eliminates certain paper licenses for collection agencies, credit services, lenders, installment lenders, mortgage lenders, mortgage loan originators, sales finance companies, check cashing services, money transmission businesses, and debt management services; (ii) provides for the licensing of certain persons for certain activities through NMLS; (iii) outlines specific information to be included on NMLS-provided licenses; (iv) requires certain licensing information be conspicuously posted (with certain exceptions) at a licensee’s licensed location and on websites and software applications; (v) allows for the surrender of a license through NMLS in accordance with a process established by the state Commissioner of Financial Regulation; and (vi) requires notification to the Commissioner of certain licensee actions. The act takes effect October 1.
Recently, the California legislature introduced AB 1177—the California Public Banking Option Act—which would, if enacted, establish the Public Banking Opinion Board and task the Board with designing, implementing, and overseeing a program for consumers in the state who lack access to traditional banking services. Specifically, the bill would create the BankCal Program, which would protect unbanked and underbanked consumers from predatory, discriminatory, and costly alternatives by providing “access to voluntary, zero-fee, zero-penalty, federally insured transaction account and debit card services at no cost to account holders.”
Among other things, the bill would (i) impose a mandate requiring employers and hiring entities to maintain payroll direct deposit arrangements to allow workers to participate in the program; (ii) require landlords to allow tenants to pay rents and security deposits by electronic funds transfers from a BankCal account; (iii) require the Board to contract with and coordinate financial services vendors for the program and build an expansive financial services network of participating ATMs, banks and credit union branches, and other in-network partners to allow account holders to load or withdraw funds from their BankCal accounts without paying fees; (iv) require the Board to establish a no-fee process to allow all account holders to arrange for payments to a registered payee using a preauthorized electronic fund transfer from a BankCal account; and (v) require the Board to “determine the criteria for certification of lenders of consumer credit” to maximize consumer protection and protect account holders from unfair and deceptive practices, including those that “steer consumers into unnecessary, more costly, or higher risk products that do not match their financial needs.” Furthermore, the Board would be tasked with studying whether additional services may be beneficial to account holders to maximize the purposes of the program.
On April 1, the Arkansas governor signed SB 149, which amends provisions related to licensing requirements under the state’s Fair Mortgage Lending Act (FMLA). Among other things, the act (i) modifies certain definitions, including expanding the definition of a mortgage servicer to include a person that makes a payment to a borrower in the case of a home equity conversion mortgage or a reverse mortgage; (ii) clarifies the qualifications for licensure under the FMLA and outlines licensing renewal requirements; (iii) provides a process for the Arkansas Securities Commissioner to allow loan officers to work from a location that is not licensed as the principal place of business or branch office; (iv) modifies the process concerning notice of a change in name or address; and (v) requires licensees to establish and enforce written cybersecurity policies and procedures that comply with the FMLA and any regulations or orders promulgated thereunder. The act takes effect 90 days after adjournment of the legislature.
On April 6, the New York Governor signed S297B into law, which addresses the permanent discontinuance of LIBOR for specified contracts, securities, and other instruments that are economically tied to LIBOR. Among other things, S297B stipulates that contracts using LIBOR as a benchmark that do not contain adequate interest rate fallback provisions (or contain a fallback provision “that result[s] in a benchmark replacement, other than a recommended benchmark replacement, that is based in any way on any LIBOR value”) will automatically convert to the “recommended benchmark replacement”—currently the secured overnight financing rate (SOFR)—when LIBOR is no longer available. As previously covered by InfoBytes, all sterling, euro, Swiss franc and Japanese yen settings, and one-week and two-month U.S. dollar settings will cease immediately after December 31, 2021, while all remaining U.S. dollar settings will cease immediately after June 30, 2023. Of note, S297B will not override LIBOR replacements that are mutually agreed upon by contracting parties, and provides a safe harbor from liability for parties that use a recommended benchmark replacement. Further, parties are also prohibited from discharging or refusing to perform contractual obligations or declaring a breach of contract as a result of the discontinuance of LIBOR or the use of a replacement.
Find continuing InfoBytes coverage on LIBOR here.
- Daniel R. Alonso to moderate an interactive roundtable at the Latin Lawyer and GIR Connect: Anti-Corruption & Investigations Conference
- APPROVED Checkpoint Webcast: You have license renewal questions, we have answers
- Jonice Gray Tucker to discuss “Fintech trends” at the BIHC Network Elevating Black Excellence Regional Summit
- Jeffrey P. Naimon to discuss "Truth in lending” at the American Bar Association National Institute on Consumer Financial Services Basics
- Daniel R. Alonso to discuss anti-money-laundering at FELABAN Spanish-language webinar “Perspective for banks: LAFT, FINCEN, OFAC, Cryptocurrency”
- Daniel R. Alonso to discuss "What’s new in BSA/AML compliance?" at the Institute of International Bankers Regulatory Compliance Seminar
- Marshall T. Bell and John R. Coleman to speak at 2021 AFSA Annual Meeting
- Jon David D. Langlois to discuss "Regulatory update: What you need to know under the new boss; It won’t be the same as the old boss" at the IMN Residential Mortgage Service Rights Forum (East)
- Daniel R. Alonso to discuss internal investigations at the Institute of Internal Auditors of Argentina Spanish-language webinar
- Benjamin B. Klubes to discuss “Creating a Fantastic Workplace Culture”
- John R. Coleman and Amanda R. Lawrence to discuss “Consumer financial services government enforcement actions – The CFPB and beyond” at the Government Investigations & Civil Litigation Institute Annual Meeting
- Jonice Gray Tucker to discuss "Consumer financial services" at the Practising Law Institute Banking Law Institute
- Jonice Gray Tucker to discuss “Regulators always ring twice: Responding to a government request” at ALM Legalweek