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Kentucky enacts mortgage loan industry regulation bill
On April 8, the Kentucky governor signed HB 643, which relates to regulating mortgage lenders. Among other things, the bill: (i) permits employees of a licensee to engage in the mortgage lending process from an alternate location if certain conditions are met; (ii) requires supervision and control of employees acting as mortgage loan originators; (iii) establishes requirements for licensees that allow employees to engage in the mortgage lending process from alternate work locations; (iv) prohibits records from being maintained at an alternate work location; and (v) permits mortgage loan companies and mortgage loan brokers to utilize third-party secure storage facilities if certain conditions are met.
Kansas amends mortgage licensing provisions
On April 7, the Kansas governor signed HB 2568, which updates the Kansas Mortgage Business Act by amending certain mortgage licensing provisions. Among other things, the bill: (i) authorizes certain mortgage business to be conducted at remote locations; (ii) establishes procedures and requirements for license and registration renewal or reinstatement; (iii) adjusts surety bond requirements; (iv) provides for evidence of solvency and net worth; and (v) requires notice to the Commissioner when adding or closing any branch office. Additionally, the bill replaces the current requirements for licenses and renewal applications and also sets the expiration date for licenses and registration on December 31 of each year. A license or registration will be renewed without assessment of a late fee by filing a complete renewal application and nonrefundable renewal fee with the Commissioner by December 1 of each year. The bill is effective July 1.
Idaho updates licensing provisions for debt collection agencies
On March 31, the Idaho governor signed HB 610, which amends existing law to revise certain requirements for collection agencies and applicants for licensure. The amendments remove the prior requirement that applicants and licensees must designate an experienced individual to serve as in charge of the licensee’s collection agency business. Additionally, the bill now permits collection agencies to collect incidental charges if they are included in the contract between the creditor and the debtor, with some exceptions. The bill also establishes licensing efficiencies by requiring the use of an “electronic system of licensing as prescribed by the director” and permitting the reinstatement of an expired license. The bill is effective July 1.
West Virginia updates money transmitter licensing law
Recently, the West Virginia governor signed SB 505, which updates laws regarding licensure and regulation of money transmitters. Among other things, the bill (i) enhances and expands defined terms, including the definition of “control”; (ii) removes the provisional licensing option for check sellers; (iii) gives West Virginia the authority to participate in multistate examinations; (iv) increases the net worth requirement for licensees; (v) sets forth prior approval requirements for a change in control of a licensee; and (vi) requires licensees to maintain specified “permissible investments” at all times. The bill is effective June 7.
DFPI concludes MTA licensure not required for digital asset trading platform
On March 23, the California Department of Financial Protection and Innovation (DFPI) released a new opinion letter covering aspects of the California Money Transmission Act (MTA) related to a digital asset trading platform. The redacted opinion letter examines whether the inquiring Company (a registered money services business) requires licensure under the MTA. The Company requesting an interpretive opinion operates a software platform that allows retail and institutional investors to buy and sell digital assets, including cryptocurrency, and access related services, within the platform. The letter explains that U.S. customers must fund an account on the Company’s platform prior to purchasing cryptocurrency with either fiat currency (U.S. dollars) or cryptocurrency. The letter also describes, among other things, how customers can buy from and sell to the Company cryptocurrencies on one or more cryptocurrency exchanges using the platform. In these transactions, the Company would sell or buy cryptocurrency from the customer at the selected price and settle the trade using fiat or cryptocurrency held in its own accounts. Simultaneously, the Company would execute a trade for its own benefit on the exchange offering the price selected by the customer. Customer funds would not be used to buy or sell cryptocurrency from or to the exchange. After executing a transaction, a customer may choose to withdraw all or part of the customer’s fiat or cryptocurrency from the platform, or may choose to maintain a balance to execute future transactions.
The DFPI stated that it “has not concluded whether a wallet storing cryptocurrency constitutes a form of monetary value representing a claim against the issuer and accepted for use as a means of redemption for money or monetary value or payment for goods or services.” As such, the DFPI will not require the Company to be licensed under the MTA to provide customers with an account via a proprietary software platform to transfer and store cryptocurrency in order to execute trades directly with the Company.
Arizona and Utah modify various licensing provisions
On March 24, the Arizona governor signed HB 2612, which eliminates requirements for there to be a finding on whether an applicant is law abiding, honest, trustworthy, and of good moral character in order to be eligible for a license, permit, or certification. This applies to bank or in-state financial institution acquisitions, banking, consumer lenders, trust companies, escrow agents, mortgage brokers, mortgage bankers, commercial mortgage brokers, loan originators, financial institution holding companies, premium finance companies, real estate appraisers and appraisal management companies, among others. The bill also makes other technical and conforming changes and takes effect 90 days after adjournment of the legislature.
Earlier, on March 23, the Utah governor signed HB 69, which modifies various licensing provisions under the state’s Residential Mortgage Practices and Licensing Act. The bill also makes various amendments under the Real Estate Licensing and Practices Act related to licensing, fees, and disciplinary actions. Among other things, the bill amends the general qualifications of licensure to make residential mortgage loans, including provisions related to mandatory education requirements for both state applicants and applicants licensed in other states and criminal background checks. Specifically, the bill removes a provision that states a “license is immediately and automatically revoked if the criminal background check discloses the applicant fails to accurately disclose a criminal history involving: (A) the real estate industry; or (B) a felony conviction on the basis of an allegation of fraud, misrepresentation, or deceit.” Additional amendments authorize the commission to impose sanctions against licensees and unregistered persons that were found to be in violation of a provision of the act; discuss the process for filing a written request for the vacation of a license revocation; address pending transactions should the death of a principal broker occur; and remove provisions regarding the payment of certain expenses and costs. The bill takes effect 60 days after adjournment of the legislature.
Mississippi passes debt management provisions
Recently, the Mississippi governor signed HB 687, which establishes debt management services and licensing requirements. According to the bill, debt management service is defined as “[t]he receiving of money from a consumer for the purpose of distributing one or more payments to or among one or more creditors of the consumer in full or partial payment of the consumer's obligation,” among other things. A debt management service provider is “a person that provides or offers to provide to a consumer in this state any debt management services, in return for a fee or other consideration.” A debt management service provider does not include “[a]ny institution that is regulated, supervised or licensed by the department or any out-of-state institution that is insured by the Federal Deposit Insurance Corporation or the National Credit Union Administration,” among other things. Additionally, one cannot operate as a debt management service provider with respect to consumers who are residents of this state without a license. The bill is effective July 1.
Indiana passes loan broker provisions
On March 18, the Indiana governor signed HB 1092, which amends the provisions regarding loan brokers that include requirements for licensing, as well as contract for the services of a loan broker. Among other things, the bill establishes that a loan processing company notice filing must be made on a form prescribed by the commissioner and include the: (i) loan processing company's business name, address, and state of incorporation or business registration; (ii) names of the owners, officers, members, or partners who control the loan processing company; and (iii) name of each individual who is employed by the loan processing company, including the unique identifier from the Nationwide Multistate Licensing System (NMLS) of each loan processor. Additionally, when a contract for the services of a loan broker is assigned, the loan broker shall provide a copy of the signed contract and a written disclosure of any agreement entered into by the loan broker to procure loans exclusively from one lender to each party to the contract. The bill is effective July 22.
DFPI addresses MTA licensing requirements
Recently, the California Department of Financial Protection and Innovation (DFPI) released new opinion letters covering aspects of the California Money Transmission Act (MTA) related to a digital currency trading platform and the referral of customers to financial institutions. Highlights from the redacted letters include:
- Digital Currency Trading Platform. The redacted opinion letter examines whether the inquiring Company requires licensure under the MTA. The letter describes that the Company’s customers would transfer digital currency into the account they have with the Company, with the balance being reflected in the customer’s wallet issued by the Company. The letter further explains that the Company would provide California residents access to its digital currency trading platform to buy, sell, or hold digital currency and provide liquidity services. The letter also describes, among other things, how customers could use the platform, transfer digital currency into the account, and transfer fiat currency by transferring it from their own bank account or by debit or credit card to the Company. Customers would not be able to send fiat or digital currency to others, except in the context of a sale. DFPI concluded that while the Company’s wallets holding fiat currency meet the definition of stored value, licensure under the MTA was not required because the Company offered fiat currency wallets to customers solely to facilitate the trade of digital currency. DFPI also noted that the Company does not require licensure under the MTA to perform Platform trading services or to issue wallets holding digital currencies.
- Referral of customers to financial institutions. The redacted opinion letter examines whether the inquiring Company’s referral service is subject to the MTA. The letter describes that under this service, the Company would refer customers to banks, trust companies, and other entities which are either licensed as money transmitters in California or exempt from licensure. Under the proposed referral service, customers would be re-directed to a financial institution’s website where they could set up and fund an account. Customers wishing to buy, sell, or exchange cryptocurrency or fiat currency could do so from the Company’s website and use a third party’s software platform to input their order details. The platform would check to make sure that the customer has sufficient assets in the customer’s account with the financial institution to purchase the cryptocurrency. The financial institution would be the only party to hold, receive, or transmit all cryptocurrencies in the customer’s account. DFPI concluded that the referral service does not meet the definition of money transmission because the service entails connecting customers with financial institutions from which customers can buy, sell, or exchange cryptocurrency. Further, DFPI noted that the transactions between customers and financial institutions are also not money transmission because the customer would simply exchange cryptocurrency directly with the financial institution. Accordingly, DFPI held that licensure under the MTA is not required because the Company will not sell or issue payment instruments, sell or issue stored value, or receive money for transmission by offering the referral service.
New Mexico caps interest rates on small-dollar loans at 36%
On March 1, the New Mexico governor signed HB 132, which amends certain provisions related to the state’s small dollar lending requirements. Among other things, the bill makes several amendments to the New Mexico Bank Installment Loan Act of 1959 (BILA) and the New Mexico Small Loan Act of 1955 (SLA) by raising the maximum installment loan amount to $10,000 and providing the following: (i) “no lender shall make a loan pursuant to the [BILA] to a borrower who is also indebted to that lender pursuant to the [SLA] unless the loan made pursuant to the [SLA] is paid and released at the time the loan is made”; (ii) only federally insured depository institutions may make a loan under the BILA with an initial stated maturity of less than one hundred twenty days; (iii) a lender that is not a federally insured depository institution may not make a loan under the BILA “unless the loan is repayable in a minimum of four substantially equal installment payments of principal and interest”; and (iv) lenders, aside from federally insured depository institutions, may not make a loan with an annual percentage rate (APR) greater than 36 percent (a specified APR increase is permitted if the prime rate of interest exceeds 10 percent for three consecutive months). When calculating the APR, a lender must include finance charges as defined in Regulation Z “for any ancillary product or service sold or any fee charged in connection or concurrent with the extension of credit, any credit insurance premium or fee and any charge for single premium credit insurance or any fee related to insurance.” Excluded from the calculation are fees paid to public officials in connection with the extension of credit, including fees to record liens, and fees on a loan of $500 or less, provided the fee does not exceed five percent of the loan’s total principal and is not imposed on a borrower more than once in a twelve-month period.
The act also expands the SLA’s scope on existing anti-evasion provisions to specify that a person may not make small dollar loans in amounts of $10,000 or less without first having obtained a license from the director. The amendments also expand the scope of the anti-evasion provisions to include (i) the “making, offering, assisting or arranging a debtor to obtain a loan with a greater rate of interest . . . through any method, including mail, telephone, internet or any electronic means, regardless of whether the person has a physical location in the state”; and (ii) “a person purporting to act as an agent, service provider or in another capacity for another entity that is exempt from the [SLA]” provided the person meets certain specified criteria, such as “the person holds, acquires or maintains, directly or indirectly, the predominate economic interest in the loan” or “the totality of the circumstances indicate that the person and the transaction is structured to evade the requirements of the [SLA].” Under the act, a violation of a provision of the SLA that constitutes either an unfair or deceptive trade practice or an unconscionable trade practice is actionable under the Unfair Practices Act.
The act also makes various amendments to a licensees’ books and records requirements to facilitate the examinations and investigations conducted by the Director of the Financial Institutions Division of the Regulation and Licensing Department. Failure to comply may result in the suspension of a license. Additionally, the act provides numerous amended licensing reporting requirements concerning the loan products offered by a licensee, average repayment times, and “the number of borrowers who extended, renewed, refinanced or rolled over their loans prior to or at the same time as paying their loan balance in full, or took out a new loan within thirty days of repaying that loan,” among other things. The act also outlines credit reporting requirements, advertising restrictions, and requirements for the making and paying of small dollar loans, including specific limitations on charges after judgment and interest.
The act takes effect January 1, 2023.