2007 Regular Session
To: Banking and Financial Services
By: Representative Warren
AN ACT TO REENACT SECTIONS 81-18-1, 81-18-3, 81-18-5, 81-18-7, 81-18-9, 81-18-11, 81-18-13, 81-18-15, 81-18-17, 81-18-19, 81-18-21, 81-18-23, 81-18-25, 81-18-27, 81-18-29, 81-18-31, 81-18-33, 81-18-35, 81-18-37, 81-18-39, 81-18-41, 81-18-43, 81-18-45, 81-18-47, 81-18-49, MISSISSIPPI CODE OF 1972, WHICH PROVIDE FOR THE MISSISSIPPI MORTGAGE CONSUMER PROTECTION LAW; TO AMEND SECTION 81-18-51, MISSISSIPPI CODE OF 1972, TO EXTEND THE DATE OF REPEAL FOR THE REENACTED SECTIONS; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 81-18-1, Mississippi Code of 1972, is reenacted as follows:
81-18-1. This chapter shall be known and cited as the Mississippi Mortgage Consumer Protection Law.
SECTION 2. Section 81-18-3, Mississippi Code of 1972, is reenacted as follows:
81-18-3. For purposes of this chapter, the following terms shall have the following meanings:
(a) "Borrower" means a person who submits an application for a loan secured by a first or subordinate mortgage or deed of trust on a single- to four-family home to be occupied by a natural person.
(b) "Branch" means a location of a company in or outside of the state that conducts business as a mortgage company on Mississippi land. A location shall be considered a branch in any of the following:
(i) If the location is used on any type of advertisement;
(ii) If any type of record, loan file or application of the company is located at the location, with the exception of unstaffed storage facilities; or
(iii) If a Mississippi consumer is received at the location or is directed to deliver any information by any means to the location.
(c) "Commissioner" means the Commissioner of the Mississippi Department of Banking and Consumer Finance.
(d) "Commitment" means a statement by a lender required to be licensed or registered under this chapter that sets forth the terms and conditions upon which the lender is willing to make a particular mortgage loan to a particular borrower.
(e) "Control" means the direct or indirect possession of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise, and shall include "controlling," "controlled by," and "under common control with."
(f) "Department" means the Department of Banking and Consumer Finance of the State of Mississippi.
(g) "Executive officer" means the chief executive officer, the president, the principal financial officer, the principal operating officer, each vice president with responsibility involving policy-making functions for a significant aspect of a person's business, the secretary, the treasurer, or any other person performing similar managerial or supervisory functions with respect to any organization whether incorporated or unincorporated.
(h) "License" means a license to act as a mortgage company issued by the department under this chapter.
(i) "Licensee" means a person or entity who is required to be licensed as a mortgage company under this chapter.
(j) "Loan originator" means an individual who is an employee of a single mortgage company whose conduct of the mortgage business is the responsibility of the company, and whose job responsibilities include direct contact with borrowers during the loan origination process, which may include soliciting, negotiating, acquiring, arranging or making mortgage loans for others, obtaining personal or financial information, assisting with the preparation of loan applications or other documents, quoting loan rates or terms, or providing required disclosures. This individual must work for a licensed or registered company and work from the registered location with the department. The term does not include individuals whose job responsibilities on behalf of a company are solely clerical in nature, which is defined as normal office procedures, not including any duties listed in the definition of "loan originator," or sales representatives of a licensed Mississippi manufactured housing operation who transmits information concerning a sale via mail, courier service, or electronically to a licensed mortgage company or registered originator.
(k) "Make a mortgage loan" means to advance funds, offer to advance funds or make a commitment to advance funds to a borrower.
(l) "Misrepresent" means to make a false statement of a substantive fact or to engage in, with intent to deceive or mislead, any conduct that leads to a false belief that is material to the transaction.
(m) "Mortgage company" means any person or entity who directly, indirectly or by electronic activity, solicits, places or negotiates mortgage loans for others, or offers to solicit, place or negotiate mortgage loans for others. Unless indicated otherwise, the use of the word "company" in this chapter means "mortgage company" as defined in this paragraph (m).
(n) "Mortgage loan" means a loan or agreement to extend credit made to a natural person, which loan is secured by a deed to secure debt, security deed, mortgage, security instrument, deed of trust or other document representing a security interest or loan upon any interest in a lot intended for residential purposes, or single- to four-family residential property located in Mississippi, regardless of where made, including the renewal or refinancing of any loan.
(o) "Person" means any individual, sole proprietorship, corporation, limited liability company, partnership, trust or any other group of individuals, however organized.
(p) "Principal" means a natural person who, directly or indirectly, owns or controls an ownership interest of twenty-five percent (25%) or more in a corporation or any other form of business organization, regardless of whether the natural person owns or controls the ownership interest through one or more natural persons or one or more proxies, powers of attorney, nominees, corporations, associations, limited liability companies, partnerships, trusts, joint-stock companies, other entities or devises, or any combination thereof.
(q) "Records" or "documents" means any item in hard copy or produced in a format of storage commonly described as electronic, imaged, magnetic, microphotographic or otherwise, and any reproduction so made shall have the same force and effect as the original thereof and be admitted in evidence equally with the original.
(r) "Registrant" means any person required to register under Section 81-18-5(m).
(s) "Residential immovable property" means property such as, but not limited to, vinyl siding, roofs, pools, spas, appliances, windows, home additions, landscaping, fencing, etc.
(t) "Residential property" means improved real property or lot used or occupied, or intended to be used or occupied, as a residence by a natural person.
(u) "Service a mortgage loan" means the collection or remittance for another, or the right to collect or remit for another, of payments of principal interest, trust items such as insurance and taxes, and any other payments pursuant to a mortgage loan.
(v) "Wholesale lender" means any person or entity who makes a mortgage loan, or purchases or services mortgage loans, utilizing the services of a person exempted, licensed or registered under this chapter.
SECTION 3. Section 81-18-5, Mississippi Code of 1972, is reenacted as follows:
81-18-5. The following persons are not subject to the provisions of this chapter, unless otherwise provided in this chapter:
(a) Any person authorized to engage in business as a bank holding company or as a financial holding company, or any wholly owned subsidiary thereof; however, the wholly owned subsidiary must file a notification statement that includes the following information:
(i) The name or names under which business will be conducted in Mississippi;
(ii) The name and address of the parent financial institution;
(iii) The name, mailing address, telephone number, and fax number of the person or persons responsible for handling consumer inquiries and complaints;
(iv) The name and address of the registered agent for service of process in Mississippi;
(v) A statement signed by the president or chief executive officer of the entity stating that the entity will receive and process consumer inquiries and complaints promptly, fairly, and in compliance with all applicable laws; and
(vi) A fee of One Hundred Dollars ($100.00).
The notification statement must be filed before beginning to conduct a mortgage business in this state and must be updated by the entity as the information changes. Any entity that fails to file the notification statement or keep the information current will be immediately subject to the licensing requirements of Section 81-18-9. This notification statement must be renewed annually as of September 30 of each year with a renewal fee of One Hundred Dollars ($100.00).
(b) Any person authorized to engage in business as a bank, credit card bank, savings bank, savings institution, savings and loan association, building and loan association, trust company or credit union under the laws of the United States, any state or territory of the United States, or the District of Columbia, the deposits of which are federally insured, or any wholly owned subsidiary thereof.
(c) Any person who is a wholesale lender as defined in Section 81-18-3(v) or who is registered by the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, the Government National Mortgage Association or the United States Department of Housing and Urban Development; however, persons who qualify for registration under this paragraph shall be subject to Sections 81-18-11, 81-18-13, 81-18-21, 81-18-23, 81-18-25, 81-18-27, 81-18-31, 81-18-33, 81-18-35, 81-18-39 and 81-18-43. Upon the request of the commissioner, those persons shall submit copies of any reports as required by the aforementioned governmental entity to which the person is subject for licensing, supervision or auditing. The department shall have the authority to investigate all consumer complaints concerning Mississippi residential property. To quality for registration, the applicant shall register for a registration certificate with the department and pay an initial fee of Three Hundred Dollars ($300.00). With each application for renewal of the registration certificate, the applicant shall pay a renewal fee of One Hundred Fifty Dollars ($150.00) and provide the department with evidence that the applicant is still licensed, supervised or audited by the governmental entity. If the renewal fee remains unpaid for thirty (30) days after August 31, the registration shall expire, but not before September 30 of any year for which the annual renewal fee has been paid. If any person engages in business without paying the fees provided for in this paragraph before commencing business or before the expiration of the person's current registration, as the case may be, then the person shall be liable for the full amount of the registration fee, plus a penalty in an amount not to exceed Twenty-five Dollars ($25.00) for each day that the person has engaged in business without a registration certificate or after the expiration of a registration certificate. All registration fees and penalties shall be paid into the Consumer Finance Fund of the department. If the registered company has a physical branch location in Mississippi, then this location must be registered with the department as a branch in accordance with Sections 81-18-17 and 81-18-25.
(d) Any lender holding a license under the Small Loan Regulatory Law (Section 75-67-101 et seq.) and the Small Loan Privilege Tax Law (Section 75-67-201 et seq.).
(e) Any attorney licensed to practice law in Mississippi who provides mortgage loan services incidental to the practice of law and who is not a principal of a mortgage company as defined under this chapter.
(f) A real estate company or licensed real estate salesperson or broker who is actively engaged in the real estate business and who does not receive any fee, commission, kickback, rebate or other payment for directly or indirectly negotiating, placing or finding a mortgage for others.
(g) Any person performing any act relating to mortgage loans under order of any court.
(h) Any person who is employed by and representing a Mississippi manufactured housing operation and who makes a mortgage loan for an investment or on a whole loan basis; any person who engages in owner-financing; or any person engaged in the financing of a consumer loan secured by a mortgage on residential immovable property in not more than twelve (12) Mississippi residential mortgage loans, or who contracts for no more than twelve (12) Mississippi residential loan transactions, over the licensing period provided in this chapter, including those acting as originators. The twelve (12) transactions are cumulative to any combination of operations owned or controlled by any one individual, sole proprietorship, corporation, limited liability company, partnership, trust or any other group of individuals, however organized. However, within thirty (30) days of loan closure, the person shall submit to the commissioner a fee of Ten Dollars ($10.00), which is not chargeable to the consumer, and written notification containing such loan information as required by the commissioner, seeking approval to engage in a residential mortgage transaction without first complying with the licensing provisions of this chapter. Any person who enters into more than twelve (12) of those transactions in the licensing period provided in this chapter must be licensed according to the procedures prescribed in this chapter. The fees paid for registration during a licensing period will be deducted from the cost of an initial license.
(i) Any natural person who purchases mortgage loans from a licensed mortgage company solely as an investment and who is not in the business of making or servicing mortgage loans.
(j) Any person who makes a mortgage loan to his or her employee as an employment benefit.
(k) The United States of America, the State of Mississippi or any other state, and any agency, division or corporate instrumentality thereof including, but not limited to, the Mississippi Home Corporation, Rural Economic Community Development (RECD), Habitat for Humanity, the Federal National Mortgage Association (FNMA), the Federal Home Loan Mortgage Company (FHLMC), the Government National Mortgage Association (GNMA), the United States Department of Housing and Urban Development (HUD), the Federal Housing Administration (FHA), the Department of Veterans Affairs (VA), the Farmers Home Administration (FmHA), and the Federal Land Banks and Production Credit Associations.
(l) Nonprofit corporations exempt from federal taxation under Section 501(c) of the Internal Revenue Code making mortgage loans to promote home ownership or home improvements for the disadvantaged.
(m) Loan originators as defined under Section 81-18-3(j) are exempt from the licensing requirements of this chapter except for Sections 81-18-9(3)(d), 81-18-13 and 81-18-15(3), but shall register with the department as a loan originator. Any natural person required to register under this paragraph (m) shall register initially with the department and thereafter file an application for renewal of registration with the department on or before September 30 of each year providing the department with such information as the department may prescribe by regulation, including, but not limited to, the business addresses where the person engages in any business activities covered by this chapter and a telephone number that customers may use to contact the person. This initial registration of a loan originator shall be accompanied by a fee of One Hundred Dollars ($100.00). Annual renewals of this registration shall require a fee of Fifty Dollars ($50.00). No person required to register under this paragraph (m) shall transact business in this state directly or indirectly as a mortgage company or mortgage lender unless that person is registered with the department.
SECTION 4. Section 81-18-7, Mississippi Code of 1972, is reenacted as follows:
81-18-7. (1) On and after July 1, 2000, no person or natural person shall transact business in this state, directly or indirectly, as a mortgage company unless he or she is licensed or registered as a mortgage company by the department or is a person exempted from the licensing requirements under Section 81-18-5.
(2) A violation of this section does not affect the obligation of the borrower under the terms of the mortgage loan. The department shall publish and provide for distribution of information regarding approved or revoked licenses.
(3) On and after July 1, 2000, every person who directly or indirectly controls a person who violates this section, including a general partner, executive officer, joint venturer, contractor, or director of the person, violates this section to the same extent as the person, unless the person whose violation arises under this subsection shows by a preponderance of evidence the burden of proof that he or she did not know and, in the exercise of reasonable care, could not have known of the existence of the facts by reason of which the original violation is alleged to exist.
SECTION 5. Section 81-18-9, Mississippi Code of 1972, is reenacted as follows:
81-18-9. (1) An application for a license under this chapter shall be made in writing and in the form as the department may prescribe.
(2) The application shall include at least the following:
(a) The legal name, residence, and business address of the applicant and, if applicable the legal name, residence and business address of every principal, together with the resume of the applicant and of every principal of the applicant.
(b) The name under which the applicant will conduct business in the state.
(c) The complete address of the applicant's initial registered office, branch office(s) and any other locations at which the applicant will engage in any business activity covered by this chapter.
(d) A copy of the certificate of incorporation, if a Mississippi corporation.
(e) Documentation satisfactory to the department as to a certificate of existence of authority to transact business lawfully in Mississippi, if an individual, sole proprietorship, limited liability company, partnership, trust or any other group of individuals, however organized.
(f) If a foreign corporation, a copy of a certificate of authority to conduct business in Mississippi and the address of the main corporate office of the foreign corporation.
(g) Documentation of a minimum of two (2) years' experience directly in mortgage lending by a person or at least one (1) executive officer. Evidence shall include, where applicable:
(i) Copies of business licenses issued by governmental agencies.
(ii) Written letters of employment history of the person filing the application for at least two (2) years before the date of the filing of an application including, but not limited to, job descriptions, length of employment, names, addresses and phone numbers for past employers.
(iii) A listing of wholesale lenders with whom the applicant has done business with in the past two (2) years either directly as a mortgage company or indirectly as an employee of a mortgage company.
(iv) Any other data and pertinent information as the department may require with respect to the applicant, its directors, principals, trustees, officers, members, contractors or agents.
(h) In lieu of documentation of two (2) years experience in mortgage lending by an applicant, documentation of passage of an examination covering mortgage lending, approved by the department.
(3) The application shall be filed together with the following:
(a) The license fee specified in Section 81-18-15;
(b) A completed and signed form authorizing the department to obtain information from outside sources for each person, executive officer and employee;
(c) An original or certified copy of a surety bond in favor of the State of Mississippi for the use, benefit, and indemnity of any person who suffers any damage or loss as a result of the mortgage company's breach of contract or of any obligation arising therefrom or any violation of law; and
(d) Except as provided in this paragraph (d), a set of fingerprints from any local law enforcement agency from the following applicants:
(i) All individuals operating as a sole proprietorship that plan to conduct a mortgage brokering or lending business in the State of Mississippi;
(ii) Partners in a partnership or principal owners of a limited liability company that are or will be actively engaged in the daily operation of a mortgage brokering or lending business in the State of Mississippi;
(iii) The chief executive officer of a corporation, or his designee, which supervises the Mississippi location(s) and any shareholders owning twenty-five percent (25%) or more of the outstanding shares of the corporation; and
(iv) All loan originators.
SECTION 6. Section 81-18-11, Mississippi Code of 1972, is reenacted as follows:
81-18-11. (1) For purposes of Section 81-18-9, the definitions of the classes of companies and their respective minimum amounts of surety bonds will be:
(a) "Correspondent lender" shall be defined as a company that directly or indirectly solicits, processes, places or negotiates mortgage loans for others, or offers to solicit, process, place or negotiate mortgage loans for others, that uses its own funds for closing and may hold loans and may service those loans for a period of time not to exceed six (6) months before selling the loan in the secondary market. The amount of the surety bond for correspondent lenders shall be Fifty Thousand Dollars ($50,000.00).
(b) "Mortgage broker" shall be defined as any company that directly solicits, processes, places or negotiates mortgage loans for others and that does not close mortgage loans in the company name, does not use its own funds, or who closes mortgage loans in the name of the company, and sells, assigns or transfers the loan to others within forty-eight (48) hours of the closing. The amount of the surety bond for mortgage brokers shall be Twenty-five Thousand Dollars ($25,000.00).
(c) "Mortgage lender" shall be defined as any company that makes a mortgage loan, using its own funds, for others or for compensation or gain, with the expectation of retaining servicing rights to those loans, or in the expectation of gain, either directly or indirectly, sells or offers to sell a mortgage loan to an investor in the secondary market. The amount of the surety bond for a mortgage lender shall be One Hundred Fifty Thousand Dollars ($150,000.00).
(2) All surety bonds shall be in favor, first, of the State of Mississippi for the use, benefit and indemnity of any person who suffers any damage or loss as a result of the mortgage company's breach of contract or of any obligation arising from contract or any violation of law, and, second, for the payment of any civil penalties, criminal fines, or costs of investigation and/or prosecution incurred by the State of Mississippi, including local law enforcement agencies.
SECTION 7. Section 81-18-13, Mississippi Code of 1972, is reenacted as follows:
81-18-13. (1) Upon receipt of an application for licensure or registration, which shall include the required set of fingerprints from any local law enforcement agency, the department shall conduct such an investigation as it deems necessary to determine that the applicant and its officers, directors and principals are of good character and ethical reputation; that the applicant demonstrates reasonable financial responsibility; and that the applicant has reasonable policies and procedures to receive and process customer grievances and inquiries promptly and fairly.
(2) The department shall not license an applicant unless it is satisfied that the applicant will operate its mortgage company activities in compliance with the laws, rules and regulations of this state and the United States.
(3) The department shall not license any mortgage company unless the applicant meets the requirements of Section 81-18-11.
(4) The department shall not issue a license or registration certificate if it finds that the applicant, or any person who is a director, officer, partner or principal of the applicant, has been convicted within ten (10) years of the application for license or registration of: (a) a felony in any jurisdiction; or (b) a crime that, if committed within this state, would constitute a felony under the laws of this state; or (c) a misdemeanor in any jurisdiction in which fraud is an essential element, including, but not limited to, forgery, bribery, embezzlement or making a fraudulent or false statement. For the purposes of this chapter, a person shall be deemed to have been convicted of a crime if the person has pleaded guilty to a crime before a court or federal magistrate, or plea of nolo contendere, or has been found guilty of a crime by the decision or judgment of a court or federal magistrate or by the verdict of a jury, irrespective of the pronouncement of sentence or the suspension of a sentence, unless the plea of guilty, or the decision, judgment or verdict, has been set aside, reversed or otherwise abrogated by lawful judicial process, or unless the person convicted of the crime has received a pardon from the President of the United States or the Governor or other pardoning authority in the jurisdiction where the conviction was obtained.
(5) In order to determine the applicant's suitability for a license, the commissioner shall forward the fingerprints submitted with the application to the Department of Public Safety; and if no disqualifying record is identified at the state level, the fingerprints shall be forwarded by the Department of Public Safety to the FBI for a national criminal history record check. All conviction data received by the department shall be used by the department for the exclusive purpose of carrying out the responsibilities of this chapter, may not be a public record, shall be privileged, and may not be disclosed to any other person or agency, except to any person or agency that otherwise has a legal right to inspect the file. All records shall be maintained by the department according to law. As used in this section "conviction data" means a record of a finding or verdict of guilty or plea of guilty or plea of nolo contendere with regard to any crime regardless of whether an appeal of the conviction has been sought.
(6) The department shall deny a license or registration certificate or otherwise restrict a license or registration certificate if it finds that the applicant, or any person who is a director, officer, partner, affiliate, contractor or principal of the applicant, has had any professional license denied, revoked or suspended by any state within two (2) years of the date of the application.
(7) Within fifteen (15) days after receipt of a completed application, final verification from the Department of Public Safety and/or FBI, and payment of licensing fees prescribed by this chapter, the department shall either grant or deny the request for license.
(8) A person shall not be indemnified for any act covered by this chapter or for any fine or penalty incurred under this chapter as a result of any violation of this chapter or regulations adopted under this chapter, due to the legal form, corporate structure, or choice of organization of the person, including, but not limited to, a limited liability corporation.
SECTION 8. Section 81-18-15, Mississippi Code of 1972, is reenacted as follows:
81-18-15. (1) Each license shall remain in full force and effect until relinquished, suspended, revoked or expired. With each initial application for a license, the applicant shall pay to the commissioner a license fee of Seven Hundred Fifty Dollars ($750.00), and on or before August 31 of each year thereafter, an annual renewal fee of Four Hundred Seventy-five Dollars ($475.00). If the annual renewal fee remains unpaid thirty (30) days after August 31, the license shall expire, but not before September 30 of any year for which the annual renewal fee has been paid. If any person engages in business as provided for in this chapter without paying the license fee provided for in this subsection before commencing business or before the expiration of the person's current license, as the case may be, then the person shall be liable for the full amount of the license fee, plus a penalty in an amount not to exceed Twenty-five Dollars ($25.00) for each day that the person has engaged in such business without a license or after the expiration of a license. All licensing fees and penalties shall be paid into the Consumer Finance Fund of the department. If the application is withdrawn or denied, the application fee is not refundable.
(2) Any licensee making timely and proper application for a license renewal shall be permitted to continue to operate under its existing license until its application is approved or rejected, but shall not be released from or otherwise indemnified for any act covered by this chapter or for any penalty incurred under this chapter as a result of any violation of this chapter or regulations adopted under this chapter, pending final approval or disapproval of the application for the license renewal.
(3) Each application for licensing renewal or registration renewal shall include evidence of the satisfactory completion of at least twelve (12) hours of approved continuing education in primary and subordinated financing transactions by the officers and principals who are or will be actively engaged in the daily operation of a mortgage company in the State of Mississippi and registered originators. For purposes of this subsection (3), approved courses shall be those as approved by the Mississippi Mortgage Bankers Association, the Education Committee of the National Association of Mortgage Brokers or the Mississippi Association of Mortgage Brokers, who shall submit to the department a listing of approved schools, courses, programs and special training sessions. However, each application for licensing renewal or registration renewal of manufactured housing licensees or originators shall include evidence of the satisfactory completion of at least twelve (12) hours of continuing education, of which eight (8) hours must be approved by the Commissioner of Insurance and four (4) hours consisting of courses in primary and subordinated financing transactions must be approved by the Mississippi Manufactured Housing Association, which shall submit to the department a listing of those approved schools, courses, programs and special training sessions. A manufactured housing licensee or originator may submit evidence of completion of courses that have been approved by the Mississippi Mortgage Bankers Association, the Education Committee of the National Association of Mortgage Brokers or the Mississippi Association of Mortgage Brokers to satisfy the four-hour requirement of courses in primary and subordinated financing transactions.
SECTION 9. Section 81-18-17, Mississippi Code of 1972, is reenacted as follows:
81-18-17. (1) Each license issued under this chapter shall state the address of the licensee's principal place of business and the name of the licensee.
(2) A licensee shall post a copy of the license in a conspicuous place in each place of business of the licensee.
(3) A license may not be transferred or assigned.
(4) No licensee shall transact business under any name other than that designated in the license.
(5) Each licensee shall notify the department, in writing, of any change in the address of its principal place of business or of any additional location of business or any change of officer, director or principal of the licensee within thirty (30) days of the change.
(6) No licensee shall open a branch office in this state or a branch office outside this state from which the licensee has direct contact with Mississippi consumers regarding origination or brokering Mississippi property, without prior approval of the department. An application for any branch office shall be made in writing on a form prescribed by the department, which shall include at least evidence of compliance with subsection (1) of Section 81-18-25 as to that branch and shall be accompanied by payment of a nonrefundable application fee of One Hundred Dollars ($100.00). The application shall be approved unless the department finds that the applicant has not conducted business under this chapter in accordance with law. The application shall be deemed approved if notice to the contrary has not been mailed by the department to the applicant within thirty (30) days of the date that the application is received by the department. After approval, the applicant shall give written notice to the department within ten (10) days of the commencement of business at the branch office. Each branch office that currently holds a branch license shall renew that branch license before the expiration date of the main company license, on or before September 30. The license renewal shall be on a form prescribed by the department with a nonrefundable renewal application fee of Twenty-five Dollars ($25.00).
SECTION 10. Section 81-18-19, Mississippi Code of 1972, is reenacted as follows:
81-18-19. (1) Except as provided in this section, no person shall acquire directly or indirectly twenty-five percent (25%) or more of the voting shares of a corporation or twenty-five percent (25%) or more of the ownership of any other entity licensed to conduct business under this chapter unless it firstfiles an application in accordance with the requirements prescribed in Section 81-18-9.
(2) Upon the filing and investigation of an application, the department shall permit the applicant to acquire the interest in the licensee if it is satisfied and finds that the applicant and its members, if applicable, its directors and officers, if a corporation, and any proposed new directors and officers have provided its surety bond and have the character, reputation and experience to warrant belief that the business will be operated fairly and in accordance with the law. If the application is denied, the department shall notify the applicant of the denial and the reasons for the denial.
(3) A decision of the department denying a license or registration, original or renewal shall be conclusive, except that the applicant may seek judicial review in the Chancery Court of the First Judicial District of Hinds County, Mississippi.
(4) The provisions of this section do not apply to the following, subject to notification as required in this section:
(a) The acquisition of an interest in a licensee directly or indirectly including an acquisition by merger or consolidation by or with a person registered under this chapter or exempt from this chapter under Section 81-18-5.
(b) The acquisition of an interest in a licensee directly or indirectly including an acquisition by merger or consolidation by or with a person affiliated through common ownership with the licensee.
(c) The acquisition of an interest in a licensee by a person by bequest, device, gift or survivorship or by operation of law.
(5) A person acquiring an interest in a licensee in a transaction that is requesting exemption from filing an application for approval of the application shall send a written request to the department for an exemption within thirty (30) days before the closing of the transaction.
SECTION 11. Section 81-18-21, Mississippi Code of 1972, is reenacted as follows:
81-18-21. (1) Any person required to be licensed under this chapter shall maintain in its offices, or such other location as the department shall permit, the books, accounts and records necessary for the department to determine whether or not the person is complying with the provisions of this chapter and the rules and regulations adopted by the department under this chapter. These books, accounts and records shall be maintained apart and separate from any other business in which the person is involved and may represent historical data for three (3) years preceding the date of the last license application date forward. The books, accounts and records shall be kept in a secure location under conditions that will not lead to their damage or destruction. If the mortgage company wishes to keep the files in a location other than the location listed on the license or registration certificate, then the company first must submit a written request on a form designated by the department and gain written approval from the commissioner before storing the files in a different location.
(2) To assure compliance with the provisions of this chapter, the department may examine the books and records of any licensee without notice during normal business hours. The commissioner shall charge the licensee an examination fee in an amount not less than Three Hundred Dollars ($300.00) nor more than Six Hundred Dollars ($600.00) for each office or location within the State of Mississippi, plus any actual expenses incurred while examining the licensee's records or books that are located outside the State of Mississippi. However, in no event shall a licensee be examined more than once in a two-year period unless for cause shown based upon consumer complaint and/or other exigent reasons as determined by the commissioner.
(3) The department, its designated officers and employees, or its duly authorized representatives, for the purposes of discovering violations of this chapter and for the purpose of determining whether any person or individual reasonably suspected by the commissioner of conducting business that requires a license or registration under this chapter, may investigate those persons and individuals and examine all relevant books, records and papers employed by those persons or individuals in the transaction of business, and may summon witnesses and examine them under oath concerning matters as to the business of those persons, or other such matters as may be relevant to the discovery of violations of this chapter including, without limitation, the conduct of business without a license or registration as required under this chapter.
(4) The department, in its discretion, may disclose information concerning any violation of this chapter or any rule, regulation, or order under this chapter, provided the information is derived from a final order of the department.
(5) Examinations and investigations conducted under this chapter and information obtained by the department, except as provided in subsection (4) of this section, in the course of its duties under this chapter are confidential.
(6) In the absence of malice, fraud or bad faith a person is not subject to civil liability arising from the filing of a complaint with the department, furnishing other information required by this chapter, information required by the department under the authority granted in this chapter, or information voluntarily given to the department related to allegations that a licensee or prospective licensee has violated this chapter.
SECTION 12. Section 81-18-23, Mississippi Code of 1972, is reenacted as follows:
81-18-23. (1) Each company shall annually, on or before January 31, file a written report with the department containing the December 31 information that the department may reasonably require concerning the company's business and operations during the preceding calendar year. The report shall be made in the form prescribed by the department.
(2) Any company that fails to file with the department by January 31 the report required by this section shall be subject to a late penalty of Ten Dollars ($10.00) for each day after January 31 the report is delinquent, but in no event shall the aggregate of late penalties exceed Two Hundred Dollars ($200.00).
(3) The department, in its discretion, may relieve any company from the payment of any penalty, in whole or in part, for good cause.
(4) If a company fails to pay a penalty from which it has not been relieved, the department may maintain an action at law to recover the penalty.
(5) Within fifteen (15) days of the occurrence of any of the following events, a company shall file a written report with the commissioner describing the event and its expected impact on the activities of the company in this state:
(a) The filing for bankruptcy or reorganization by the company;
(b) The institution of revocation or suspension proceedings against the company by any state or governmental authority;
(c) Any felony indictment of the company or any of its directors, executive officers, principals or loan originators; or
(d) Any felony conviction of the company or any of its directors, executive officers, principals or loan originators.
(6) If the owner or principal of a company is involved in a civil action concerning the company, then he shall notify the commissioner in writing within sixty (60) days after the initial filing of the civil action.
SECTION 13. Section 81-18-25, Mississippi Code of 1972, is reenacted as follows:
81-18-25. (1) Each principal place of business and branch office in the state shall meet all of the following requirements:
(a) Be in compliance with local zoning ordinances and have posted any licenses required by local government agencies. It is the responsibility of the licensee to meet local zoning ordinances and obtain the required occupational licenses.
(b) Consist of at least one (1) secure enclosed room or secure building of stationary construction in which negotiations of mortgage loan transactions may be conducted in privacy. Stationary construction does not include the use of portable buildings.
(c) Display a permanent sign outside the place of business readily visible to the general public, unless the display of sign violates local zoning ordinances or restrictive covenants. The sign must contain the name of the licensee and the words "Mississippi Licensed Mortgage Company" or "Mississippi Registered Mortgage Company."
(2) Each licensee shall prominently display a copy of its current license at the principal place of business and each branch office.
(3) Each person registered under this chapter shall prominently display his or her registration in the office where the person is employed.
(4) If one (1) of the following is correct, then that location shall be licensed as a mortgage company under this chapter and not as a branch:
(a) It is a separate entity operating as an independent business or mortgage operation which is not under the direct control, management supervision and responsibility of the licensee;
(b) The licensee or registered company is not the lessee or owner of the branch and the branch is not under the direct and daily ownership, control, management and supervision of the licensee or registered company;
(c) All assets and liabilities of the branch are not assets and liabilities of the licensee, and all income and expenses of the branch are income and expenses of the licensee and properly accounted for in the financial records and tax returns of the licensee; or
(d) All practices, policies and procedures, including, but not limited to, those relating to employment and operations, are not originated and established by the licensee or registered company and are not applied consistently to the main office and all branches.
Nothing in this subsection (4) shall affect or change, or be construed as affecting or changing, the existing statutory law and common law on agency, principal and agent, independent contractors, and parent and subsidiary companies.
SECTION 14. Section 81-18-27, Mississippi Code of 1972, is reenacted as follows:
81-18-27. (1) No person required to be licensed or registered under this chapter shall:
(a) Misrepresent the material facts or make false promises intended to influence, persuade or induce an applicant for a mortgage loan or mortgagee to take a mortgage loan or cause or contribute to misrepresentation by its agents or employees.
(b) Misrepresent to or conceal from an applicant for a mortgage loan or mortgagor, material facts, terms or conditions of a transaction to which the mortgage company is a party.
(c) Fail to disburse funds in accordance with a written commitment or agreement to make a mortgage loan.
(d) Improperly refuse to issue a satisfaction of a mortgage loan.
(e) Fail to account for or deliver to any person any personal property obtained in connection with a mortgage loan, such as money, funds, deposits, checks, drafts, mortgages or other documents or things of value that have come into the possession of the mortgage company and that are not the property of the mortgage company, or that the mortgage company is not by law or at equity entitled to retain.
(f) Engage in any transaction, practice, or course of business that is not in good faith, or that operates a fraud upon any person in connection with the making of or purchase or sale of any mortgage loan.
(g) Engage in any fraudulent residential mortgage underwriting practices.
(h) Induce, require, or otherwise permit the applicant for a mortgage loan or mortgagor to sign a security deed, note, or other pertinent financial disclosure documents with any blank spaces to be filled in after it has been signed, except blank spaces relating to recording or other incidental information not available at the time of signing.
(i) Make, directly or indirectly, any residential mortgage loan with the intent to foreclose on the borrower's property. For purposes of this paragraph, there is a presumption that a person has made a residential mortgage loan with the intent to foreclose on the borrower's property if all of the following circumstances are proven:
(i) Lack of substantial benefit to the borrower;
(ii) The probability that full payment of the loan cannot be made by the borrower;
(iii) That the person has made a significant proportion of loans foreclosed under similar circumstances;
(iv) That the person has provided an extension of credit or collected a mortgage debt by extortion;
(v) That the person does business under a trade name that misrepresents or tends to misrepresent that the person is a bank, trust company, savings bank, savings and loan association, credit union, or insurance company.
(j) Charge or collect any direct payment, compensation or advance fee from a borrower unless and until a loan is actually found, obtained and closed for that borrower, and in no event shall that direct payment, compensation or advance fee exceed seven and ninety-five one-hundredths percent (7.95%) of the original principal amount of the loan, and any such direct payments, compensation or advance fees shall be included in all annual percentage rate (APR) calculations if required under Regulation Z of the federal Truth in Lending Act (TILA). A direct payment, compensation or advance fee as defined in this section shall not include:
(i) Any direct payment, compensation or advance fee collected by a licensed mortgage company to be paid to a nonrelated third party;
(ii) Any indirect payment to a licensed mortgage company by a lender if those fees are not required to be disclosed under the Real Estate Settlement Procedures Act (RESPA); (iii) Any indirect payment or compensation by a lender to a licensed mortgage company required to be disclosed by the licensed mortgage company under RESPA, provided that the payment or compensation is disclosed to the borrower by the licensed mortgage company on a good faith estimate of costs, is included in the APR if required under Regulation Z of TILA, and is made pursuant to a written agreement between the licensed mortgage company and the borrower as may be required by Section 81-18-33;
(iv) A fee not to exceed one percent (1%) of the principal amount of a loan for construction, provided that a binding commitment for the loan has been obtained for the prospective borrower; or
(v) An advance fee collected by a licensed or registered mortgage company to be paid to a lender to lock in an interest rate and/or a certain number of points on a mortgage loan from the lender as provided in Section 81-18-28.
(k) Pay to any person not licensed or registered under the provisions of this chapter any commission, bonus or fee in connection with arranging for or originating a mortgage loan for a borrower, except that a registered loan originator may be paid a bonus, commission, or fee by his or her licensed employer.
(l) Refuse to provide the loan payoff within three (3) business days of an oral or written request from a borrower or third party. Proof of authorization of the borrower shall be submitted for a third-party request.
(2) A mortgage company shall only broker a residential mortgage loan to a mortgage company licensed or registered under this chapter or to a person exempt from licensure under the provisions of this chapter.
SECTION 15. Section 81-18-29, Mississippi Code of 1972, is reenacted as follows:
81-18-29. The department shall promulgate those rules and regulations, not inconsistent with law, necessary for the enforcement of this chapter.
SECTION 16. Section 81-18-31, Mississippi Code of 1972, is reenacted as follows:
81-18-31. The department shall promulgate regulations governing the advertising of mortgage loans, including, but not limited to, the following requirements:
(a) That all advertisements for loans regulated under this chapter may not be false, misleading or deceptive. No person whose activities are regulated under this chapter may advertise in any manner so as to indicate or imply that its interest rates or charges for loans are "recommended," "approved," "set" or "established" by the State of Mississippi;
(b) That all licensees shall maintain a copy of all advertisements citing interest rates or payment amounts primarily disseminated in this state and shall attach to each advertisement documentation that provides corroboration of the availability of the interest rate and terms of loans and names the specific media sources by which the advertisements were distributed;
(c) That all published advertisements disseminated primarily in this state by a license shall contain the name and an office address of the licensee, which shall be the same as the name and address of the licensee on record with the department;
(d) That an advertisement containing either a quoted interest rate or monthly payment amount must include:
(i) The interest rate of the mortgage, a statement as to whether the rate is fixed or adjustable, and the adjustment index and frequency of adjustments;
(ii) The term in years or months to fully repay the mortgage;
(iii) The APR as computed under federal guidelines; and
(e) That no licensee shall advertise its services in Mississippi in any media disseminated primarily in this state, whether print or electronic, without the words "Mississippi Licensed Mortgage Company" or "Mississippi Registered Mortgage Company."
SECTION 17. Section 81-18-33, Mississippi Code of 1972, is reenacted as follows:
81-18-33. The individual borrower files of a mortgage company shall contain at least the following:
(a) A mortgage origination agreement provided to the borrower containing at least the following statements:
(i) "As required by Mississippi Law, (licensed company name) has secured a bond issued by (name of insurance company), a surety company authorized to do business in this state. A certified copy of this bond is filed with the Mississippi Commissioner of Banking and Consumer Finance."
(ii) "As a borrower you are protected under the Mississippi Mortgage Consumer Protection Law."
(iii) "Complaints against a mortgage company may be made by contacting the:
Mississippi Department of Banking and
P.O. Box 23729
Jackson, MS 39225-3729";
(b) A copy of the original loan application signed and dated by the mortgage company;
(c) A copy of the signed closing statement as required by HUD or documentation of denial or cancellation of the loan application;
(d) A copy of the good faith estimate of costs provided to the borrower;
(e) A copy of the appraisal or statement of value if procured as a part of the loan application process;
(f) Evidence of a loan lock-in provided by the lender; and
(g) A copy of the disclosures required under Regulation Z of the federal Truth In Lending Act and other disclosures as required under federal regulations and evidence that those disclosures have been properly and timely made to the borrower.
SECTION 18. Section 81-18-35, Mississippi Code of 1972, is reenacted as follows:
81-18-35. Each licensee shall maintain a journal of mortgage transactions at the principal place of business as stated on its license, which shall include at least the following information:
(a) Name of applicant;
(b) Date of application; and
(c) Disposition of loan application, indicating date of loan funding, loan denial, withdrawal and name of lender if applicable.
SECTION 19. Section 81-18-37, Mississippi Code of 1972, is reenacted as follows:
81-18-37. (1) The department may suspend or revoke any license or registration for any reason that would have been grounds for refusal to issue an original license or registration or for:
(a) A violation of any provision of this chapter or any rule or regulation adopted under this chapter;
(b) Failure of the licensee or registrant to pay, within thirty (30) days after it becomes final and nonappealable, a judgment recovered in any court within this state by a claimant or creditor in an action arising out of the licensee's or registrant's business in this state as a mortgage company.
(2) Notice of the department's intention to enter an order denying an application for a license or registration under this chapter or of an order suspending or revoking a license or registration under this chapter shall be given to the applicant, licensee or registrant in writing, sent by registered or certified mail addressed to the principal place of business of the applicant, licensee or registrant. Within thirty (30) days of the date of the notice of intention to enter an order of denial, suspension or revocation under this chapter, the applicant, licensee or registrant may request in writing a hearing to contest the order. If a hearing is not requested in writing within thirty (30) days of the date of the notice of intention, the department shall enter a final order regarding the denial, suspension or revocation. Any final order of the department denying, suspending or revoking a license or registration shall state the grounds upon which it is based and shall be effective on the date of issuance. A copy of the final order shall be forwarded promptly by registered or certified mail addressed to the principal place of business of the applicant, licensee or registrant.
SECTION 20. Section 81-18-39, Mississippi Code of 1972, is reenacted as follows:
81-18-39. (1) For purposes of this section, the term "person" shall be construed to include any officer, director, employee, affiliate or other person participating in the conduct of the affairs of the person subject to the orders issued under this section.
(2) If the department reasonably determines that a person required to be licensed or registered under this chapter has violated any law of this state or any order or regulation of the department, the department may issue a written order requiring the person to cease and desist from unlawful or unauthorized practices. In the case of an unlawful purchase of mortgage loans, the cease and desist order to a purchaser shall constitute the knowledge required under this section for any subsequent violations.
(3) Any person required to be licensed or registered under this chapter who has been deemed by the commissioner, after notice and hearing, to have violated the terms of any order properly issued by the department under this section shall be liable for a civil penalty not to exceed Three Thousand Dollars ($3,000.00). The department, in determining the amount of the penalty, shall take into account the appropriateness of the penalty relative to the size of the financial resources of the person, the good faith efforts of the person to comply with the order, the gravity of the violation, the history of previous violations by the person, and other factors or circumstances that contributed to the violation. The department may compromise, modify or refund any penalty that has been imposed under this section. Any person assessed a penalty as provided in this subsection shall have the right to request a hearing on the amount of the penalty within ten (10) days after receiving notification of the assessment. If no hearing is requested within ten (10) days of the receipt of the notice, the penalty shall be final except as to judicial review in the Chancery Court of the First Judicial District of Hinds County. Upon the filing of a petition for judicial review, the court shall issue an order to the licensee requiring the licensee to show cause why it should not be entered. If the court determines, after a hearing upon the merits or after failure of the person to appear when so ordered, that the order of the department was properly issued, it shall grant the penalty sought by the department.
SECTION 21. Section 81-18-41, Mississippi Code of 1972, is reenacted as follows:
81-18-41. Nothing in this chapter shall preclude a person whose license or registration has been suspended or revoked from continuing to service mortgage loans pursuant to servicing contracts in existence at the time of the suspension or revocation.
SECTION 22. Section 81-18-43, Mississippi Code of 1972, is reenacted as follows:
81-18-43. (1) In addition to any other penalty that may be applicable, any licensee, individual required to be registered, or employee who willfully violates any provision of this chapter, or who willfully makes a false entry in any document specifically required by this chapter, shall be guilty of a misdemeanor and, upon conviction thereof, shall be punishable by a fine not in excess of One Thousand Dollars ($1,000.00) per violation or false entry.
(2) In addition to any other penalty that may be applicable, any licensee, individual required to be registered, or employee who fails to make a record of a mortgage transaction and subsequently sells or disposes of the mortgage from that transaction shall be punished as follows:
(a) For a first offense, the licensee, individual required to be registered, or employee shall be guilty of a misdemeanor and, upon conviction thereof, shall be punishable by a fine not in excess of One Thousand Dollars ($1,000.00) or by imprisonment in the county jail for not more than one (1) year, or both fine and imprisonment;
(b) For a second or subsequent offense, the licensee, individual required to be registered, or employee shall be guilty of a felony and, upon conviction thereof, shall be punishable by a fine not in excess of Five Thousand Dollars ($5,000.00) or by imprisonment in the custody of the State Department of Corrections for a term not less than one (1) year nor more than five (5) years, or by both fine and imprisonment.
(3) Compliance with the criminal provisions of this section shall be enforced by the appropriate law enforcement agency, which may exercise for that purpose any authority conferred upon the agency by law.
(4) When the commissioner has reasonable cause to believe that a person is violating any provision of this chapter, the commissioner, in addition to and without prejudice to the authority provided elsewhere in this chapter, may enter an order requiring the person to stop or to refrain from the violation. The commissioner may sue in any chancery court of the state having jurisdiction and venue to enjoin the person from engaging in or continuing the violation or from doing any act in furtherance of the violation. In such an action, the court may enter an order or judgment awarding a preliminary or permanent injunction.
(5) The commissioner may, after notice and hearing, impose a civil penalty against any licensee if the licensee, individual required to be registered, or employee is adjudged by the commissioner to be in violation of the provisions of this chapter. The civil penalty shall not exceed Five Hundred Dollars ($500.00) per violation and shall be deposited into the Consumer Finance Fund of the department.
(6) The commissioner may make public any final administrative action imposed against a licensee or registrant for a violation of this chapter, including cease and desist orders, civil monetary penalties, license suspensions, revocations or application denials.
(7) The state may enforce its rights under the surety bond as required in Section 81-18-11 as an available remedy for the collection of any civil penalties, criminal fines or costs of investigation and/or prosecution incurred.
SECTION 23. Section 81-18-45, Mississippi Code of 1972, is reenacted as follows:
81-18-45. The commissioner may employ the necessary full-time employees above the number of permanent full-time employees authorized for the department for the fiscal year 2001, to carry out and enforce the provisions of this chapter. The commissioner also may expend the necessary funds and equip and provide necessary travel expenses for those employees.
SECTION 24. Section 81-18-47, Mississippi Code of 1972, is reenacted as follows:
81-18-47. (1) A licensee under this chapter shall have no liability for any act or practice done or omitted in conformity with (a) any rule or regulation of the commissioner, or (b) any rule, regulation, interpretation or approval of any other state or federal agency or any opinion of the Attorney General, notwithstanding that after such act or omission has occurred the rule, regulation, interpretation, approval or opinion is amended, rescinded, or determined by judicial or other authority to be invalid for any reason.
(2) A licensee under this chapter, acting in conformity with a written interpretation or approval by an official or employee of any state or federal agency or department, shall be presumed to have acted in accordance with applicable law, notwithstanding that after such act has occurred, the interpretation or approval is amended, rescinded, or determined by judicial or other authority to be incorrect or invalid for any reason.
SECTION 25. Section 81-18-49, Mississippi Code of 1972, is reenacted as follows:
81-18-49. Notwithstanding any provisions of this chapter to the contrary, mortgage companies engaging in business on or before June 1, 2000, shall be duly licensed by the department after submitting not later than January 1, 2001, the required documents and fees provided in Sections 81-18-9 and 81-18-15. However, upon the expiration of the initial licenses for such mortgage companies, the department shall renew the licenses only if the mortgage companies satisfy all of the provisions of this chapter.
SECTION 26. Section 81-18-51, Mississippi Code of 1972, is amended as follows:
81-18-51. Sections 81-18-1 through 81-18-49 shall stand repealed on July 1, 2009.
SECTION 27. This act shall take effect and be in force from and after July 1, 2007.