By Ellis                                               S.B. No. 848
       74R5983 LJR-F
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the regulation of residential mortgage loans; imposing
    1-3  civil penalties.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Title 16, Revised Statutes, is amended by adding
    1-6  Article 490 to read as follows:
    1-7        Art. 490.  RESIDENTIAL MORTGAGE LENDING LICENSE ACT
    1-8                    CHAPTER 1.  GENERAL PROVISIONS
    1-9        Sec. 1.01.  SHORT TITLE.  This article may be cited as the
   1-10  Residential Mortgage Lending License Act.
   1-11        Sec. 1.02.  PURPOSE OF ACT AND POLICY STATEMENT.  The
   1-12  origination, funding, purchasing, and brokering of residential
   1-13  mortgage loans and the type of entities involved in residential
   1-14  mortgage lending have undergone significant changes in recent
   1-15  years, due in part to developments in the general economy,
   1-16  specifically interest rate volatility, the sophistication of the
   1-17  national secondary market for mortgage loans, and the market for
   1-18  mortgage-backed securities.  Residential mortgage lenders of every
   1-19  type have increasingly relied on nonfinancial intermediaries, such
   1-20  as mortgage brokers, to find customers.  The legislature finds that
   1-21  it is essential for the protection of the citizens of this state
   1-22  and the stability of the state's economy that reasonable standards
   1-23  governing the business practices of residential mortgage lenders
   1-24  and their agents be enacted.  The legislature further finds that
    2-1  the obligations of lenders and their agents  to consumers in
    2-2  connection with funding, soliciting, processing, placing or
    2-3  negotiating residential mortgages warrant the uniform regulation of
    2-4  the residential mortgage lending process, including the
    2-5  application, solicitation, funding, and servicing of residential
    2-6  mortgage loans.  The legislature directs the finance commission and
    2-7  the banking commissioner to implement and enforce this Act.
    2-8        Sec. 1.03.  DEFINITIONS.  (a)  In this Act:
    2-9              (1)  "Advertisement" means the attempt by publication,
   2-10  dissemination, or circulation to induce, directly or indirectly,
   2-11  any person to enter into a loan brokerage agreement for a mortgage
   2-12  to be secured by residential real property located in this state.
   2-13              (2)  "Affiliate" means:
   2-14                    (A)  a company that, directly or indirectly,
   2-15  controls, is controlled by, or is under common control with, a
   2-16  licensee; or
   2-17                    (B)  a company, including a real estate
   2-18  investment trust, that is sponsored and advised on a contractual
   2-19  basis by the licensee or a subsidiary or affiliate of the licensee.
   2-20              (3)  "Banking commissioner" means the Banking
   2-21  Commissioner of Texas.
   2-22              (4)  "Borrower" means the person who seeks the services
   2-23  of a broker, originator, or lender.
   2-24              (5)  "Broker" means a person who performs brokering
   2-25  activities.
   2-26              (6)  "Brokering" means the act of assisting a borrower
   2-27  in obtaining a loan secured by residential real property located in
    3-1  this state in return for consideration to be paid by either the
    3-2  borrower or the lender, including contracting for the delivery of
    3-3  residential mortgage loans to a third-party lender or soliciting,
    3-4  processing, placing, or negotiating residential mortgage loans.
    3-5              (7)  "Commitment" means a contract to provide
    3-6  residential mortgage loan financing.
    3-7              (8)  "Control" means:
    3-8                    (A)  the ownership or power to vote, directly or
    3-9  indirectly, 25 percent or more of the outstanding shares of any
   3-10  class of voting securities of a licensee or other company;
   3-11                    (B)  the ability to control in any manner the
   3-12  election of a majority of the board or individuals exercising
   3-13  similar functions for a licensee or other company; or
   3-14                    (C)  the power to exercise, directly or
   3-15  indirectly, a controlling influence over the management or policies
   3-16  of the licensee or other company as determined by the banking
   3-17  commissioner after notice and an opportunity for hearing.
   3-18              (9)  "Department" means Banking Department of Texas.
   3-19              (10)  "Finance commission" means The Finance Commission
   3-20  of Texas.
   3-21              (11)  "Full-service office" means office and staff in
   3-22  this state reasonably adequate to efficiently conduct the business
   3-23  of the licensee, including any matter relating to an application
   3-24  for a residential mortgage loan or servicing an existing home
   3-25  mortgage secured by residential real property.
   3-26              (12)  "Fund" means, for compensation or gain, either
   3-27  directly or indirectly, to advance funds or commit to advance funds
    4-1  for a residential mortgage loan.
    4-2              (13)  "Lender" means any person who lends money for or
    4-3  invests money in residential mortgage loans.
    4-4              (14)  "Loan brokerage agreement" means a written
    4-5  agreement by which a broker agrees to:
    4-6                    (A)  obtain a residential mortgage loan for the
    4-7  borrower;
    4-8                    (B)  assist the borrower in obtaining a
    4-9  residential mortgage loan; or
   4-10                    (C)  consider funding a residential mortgage loan
   4-11  to the borrower.
   4-12              (15)  "Originate" means to issue a commitment for and
   4-13  funding of a residential mortgage loan.
   4-14              (16)  "Payments" means the amounts paid for loan
   4-15  principal and interest, escrow reserves for taxes, insurance, and
   4-16  other related reserves and reimbursement for lender advances.
   4-17              (17)  "Person" means an individual, corporation,
   4-18  organization, government or governmental subdivision or agency,
   4-19  business trust, estate, trust, partnership, association, or any
   4-20  other legal entity, including a combination of legal entities
   4-21  acting in concert.
   4-22              (18)  "Residential mortgage loan" means a loan to or
   4-23  for the benefit of one or more individuals made primarily for
   4-24  personal, family, or household use, primarily secured by a mortgage
   4-25  on residential real property or by certificates of stock or other
   4-26  evidence of ownership interests in and proprietary leases from
   4-27  corporations or partnerships formed for the purpose of cooperative
    5-1  ownership of residential real property.
    5-2              (19)  "Residential real property" means:
    5-3                    (A)  real property located in this state improved
    5-4  by a one-to-four family dwelling used or occupied wholly or partly
    5-5  as the residence of one or more persons; or
    5-6                    (B)  unimproved real property located in this
    5-7  state on which a dwelling described by Paragraph (A) of this
    5-8  subdivision is to be constructed.
    5-9              (20)  "Service" means to collect or remit, or to have
   5-10  the right or obligation to collect or remit, for a lender, note
   5-11  owner, note holder, or for a person's own account payments,
   5-12  interest, principal, and trust items, including hazard insurance
   5-13  and taxes, on a residential mortgage loan under the terms of the
   5-14  residential mortgage loan or provide loan payment follow-up,
   5-15  delinquent loan follow-up, loan analysis, or any notifications to
   5-16  the borrower that are necessary to enable the borrower to keep the
   5-17  loan current and in good standing.
   5-18        (b)  The definitions should be liberally construed to
   5-19  accomplish the purposes of this Act.
   5-20        Sec. 1.04.  RULES; SETTING OF FEES.  (a)  The finance
   5-21  commission may adopt rules consistent with and necessary to
   5-22  accomplish the purposes of this Act, including rules relating to:
   5-23              (1)  improper or fraudulent business practices or other
   5-24  acts harmful to consumers in this state;
   5-25              (2)  the interpretation, implementation, and
   5-26  enforcement of this Act;
   5-27              (3)  bonding requirements for licensees; and
    6-1              (4)  net worth requirements for residential mortgage
    6-2  licensees.
    6-3        (b)  The finance commission by rule shall provide for
    6-4  proportionate recovery from licensees of the cost of maintenance
    6-5  and operation of the department and the cost of enforcement of this
    6-6  chapter through ratable and equitable fees for examinations,
    6-7  applications, and notices.
    6-8        Sec. 1.05.  LIMITATION ON BANKING COMMISSION.  The banking
    6-9  commissioner and employees of the department are prohibited from
   6-10  being agents, shareholders, investors, officers, or directors in
   6-11  any licensee or other person engaged in the business of residential
   6-12  mortgage lending or brokerage in this state.
   6-13                         CHAPTER 2.  LICENSES
   6-14        Sec. 2.01.  LICENSE REQUIREMENT.  (a)  A person may not
   6-15  engage in the business of funding, originating, servicing, or
   6-16  purchasing residential mortgage loans unless the person holds a
   6-17  residential mortgage lending license issued under this Act.
   6-18        (b)  A person may not engage in the business of brokering
   6-19  residential mortgage loans unless the person holds a residential
   6-20  mortgage brokerage license issued under this Act.
   6-21        (c)  Licensees under this Act may solicit, broker, fund,
   6-22  originate, service, and purchase residential mortgage loans only in
   6-23  accordance with this Act.
   6-24        (d)  A person who is subject to this Act and does not hold
   6-25  the appropriate license issued under this Act may not do any
   6-26  business under a name or title, circulate or use any advertising,
   6-27  make any representation, or give any information to a person that
    7-1  indicates or reasonably implies that the person is acting within
    7-2  the scope of this Act.
    7-3        Sec. 2.02.  LICENSE EXEMPTIONS.  (a)  The following are not
    7-4  required to hold a license issued under this Act to engage in the
    7-5  business of brokering, funding, originating, servicing, or
    7-6  purchasing residential mortgage loans:
    7-7              (1)  a savings and loan association, savings bank,
    7-8  credit union, or bank that is organized under the laws of this
    7-9  state or the United States and authorized to do business in this
   7-10  state;
   7-11              (2)  an insurance company authorized to transact
   7-12  business in this state;
   7-13              (3)  an entity engaged solely in commercial mortgage
   7-14  lending; or
   7-15              (4)  a person funding or acquiring residential mortgage
   7-16  loans with the person's own funds for investment without intent to
   7-17  make, acquire, or resell more than five residential mortgage loans
   7-18  in any one calendar year.
   7-19        (b)  Employees of a licensee are not required to be
   7-20  individually licensed.
   7-21        Sec. 2.03.  APPLICATION FOR LICENSE.  (a)  To obtain a
   7-22  license for residential mortgage lending or a brokerage license, an
   7-23  applicant must submit to the banking commissioner:
   7-24              (1)  an application in the form specified by the
   7-25  banking commissioner;
   7-26              (2)  all application fees; and
   7-27              (3)  any deposit that the finance commission by rule
    8-1  requires.
    8-2        (b)  The application must be subscribed and acknowledged by
    8-3  the applicant or an officer of the applicant.
    8-4        (c)  The application must include:
    8-5              (1)  the names and complete business and residential
    8-6  street addresses of each principal owner, partner, participant,
    8-7  member, director, and principal officer;
    8-8              (2)  the street and post office address of the location
    8-9  where the applicant's principal office is to be located;
   8-10              (3)  the street and post office address of each
   8-11  location where the applicant's full-service offices are to be
   8-12  located;
   8-13              (4)  the street and post office address of each other
   8-14  location where the applicant will conduct any business;
   8-15              (5)  the name and qualifications of:
   8-16                    (A)  the applicant; or
   8-17                    (B)  each officer and director of the applicant
   8-18  who will have charge of any aspect of the business and affairs of
   8-19  the applicant's business;
   8-20              (6)  a complete and detailed statement of the financial
   8-21  condition of the applicant as of a date not earlier than the 120th
   8-22  day before the date of the application;
   8-23              (7)  as an exhibit or attachment, a complete list of
   8-24  judgments entered against and bankruptcy petitions filed by or
   8-25  against the applicant during the 10-year period preceding the date
   8-26  the application is filed; and
   8-27              (8)  any other information required by rule or that the
    9-1  banking commissioner reasonably requests.
    9-2        Sec. 2.04.  CONFIDENTIAL INFORMATION.  Information provided
    9-3  as required by this chapter relative to the financial condition and
    9-4  business affairs of the applicant and financial information of its
    9-5  management, partners, participants, and shareholders, except for
    9-6  previously published statements and information, is confidential
    9-7  and may not be released to the public or considered in the public
    9-8  portion of the hearing under Section 2.06.
    9-9        Sec. 2.05.  APPROVAL.  The banking commissioner shall approve
   9-10  an application if the banking commissioner finds after reasonable
   9-11  inquiry that:
   9-12              (1)  the applicant has the required net worth under
   9-13  generally accepted accounting principles;
   9-14              (2)  the applicant or all members of the proposed
   9-15  management of the applicant have sufficient mortgage lending or
   9-16  brokerage experience, ability, standing, competence,
   9-17  trustworthiness, and integrity to justify a belief that the
   9-18  applicant will operate in good faith with the public and in
   9-19  compliance with all laws;
   9-20              (3)  each owner or principal shareholder, general
   9-21  partner, or participant has sufficient experience, ability,
   9-22  standing, competence, trustworthiness, and integrity to justify a
   9-23  belief that the applicant will be free from improper or unlawful
   9-24  influence or interference with respect to the operation of the
   9-25  business of the licensee;
   9-26              (4)  the applicant complies with the requirements of
   9-27  this Act; and
   10-1              (5)  the applicant is acting in good faith and the
   10-2  application contains no material misrepresentations.
   10-3        Sec. 2.06.  HEARING AND DECISION ON APPLICATION.  (a)  After
   10-4  the application is complete and accepted for filing and all
   10-5  required fees and deposits have been paid, the banking commissioner
   10-6  shall determine whether the findings required by Section 2.05 of
   10-7  this Act can be made, based on the application and the initial
   10-8  investigation.  The banking commissioner shall:
   10-9              (1)  approve the application; or
  10-10              (2)  mail written notice to the applicant that the
  10-11  banking commissioner is inclined to deny the application, stating
  10-12  the grounds for the proposed denial.
  10-13        (b)  The applicant may file a written request for hearing on
  10-14  the application not later than the 21st day after the date on which
  10-15  the notice under Subsection (a)(2) of this section is mailed to the
  10-16  applicant.  If a hearing is not requested as provided by this
  10-17  subsection, the banking commissioner may immediately enter an order
  10-18  denying the application, and the order is final and nonappealable.
  10-19        (c)  If the applicant requests a hearing under Subsection
  10-20  (b), the department shall participate as the opposing party and the
  10-21  banking commissioner shall conduct a hearing and as many prehearing
  10-22  conferences and opportunities for discovery as the banking
  10-23  commissioner considers advisable.
  10-24        (d)  After the hearing, the banking commissioner shall make a
  10-25  finding on each item listed under Section 2.05 of this Act and
  10-26  shall enter an order approving or denying the application.
  10-27        (e)  The banking commissioner may make approval of any
   11-1  application conditional.  The banking commissioner shall include
   11-2  any conditions in the order approving the application, but the
   11-3  banking commissioner may not issue the license until all conditions
   11-4  are satisfied or otherwise resolved.  A written commitment from the
   11-5  applicant offered to and accepted by the banking commissioner as a
   11-6  condition that the application will be approved is enforceable
   11-7  against the applicant and is considered for all purposes an
   11-8  agreement under this Act.
   11-9        (f)  An applicant may appeal an order denying the application
  11-10  entered under Subsection (d) of this section by filing a petition
  11-11  for judicial review under the substantial evidence rule in a
  11-12  district court in Travis County as provided by Subchapter G,
  11-13  Chapter 2001, Government Code.
  11-14        Sec. 2.07.  ISSUANCE OF LICENSE.  (a)  On approval of the
  11-15  application and the applicant's satisfaction of the bond
  11-16  requirements of Chapter 3, the banking commissioner shall issue a
  11-17  license for each full-service office of the applicant.
  11-18        (b)  The banking commissioner shall retain a copy of each
  11-19  license issued.
  11-20        (c)  On receipt of the license, a residential mortgage
  11-21  licensee is authorized to engage in the business regulated by this
  11-22  Act.
  11-23        Sec. 2.08.  LICENSE CONTENTS; TERM; POSTING.  (a)  A license
  11-24  issued under this chapter must contain the full name and street
  11-25  address of the licensee that is filed with the banking
  11-26  commissioner.
  11-27        (b)  A license expires on the first anniversary of the date
   12-1  of its issuance.
   12-2        (c)  A licensee shall post the license conspicuously in the
   12-3  office of the licensee for which the license is issued.
   12-4        Sec. 2.09.  REGISTRATION OF BUSINESS LOCATIONS.  (a)  A
   12-5  licensee shall notify the banking commissioner of a change of
   12-6  location of its principal place of business in this state.
   12-7        (b)  A licensee may apply for authority to open and maintain
   12-8  additional full-service offices by giving the banking commissioner
   12-9  prior notice of its intention in the form prescribed by the banking
  12-10  commissioner and paying a fee.  On receipt of the notice and fee,
  12-11  the banking commissioner shall issue a certificate for the
  12-12  additional full-service office if the applicant is complying with
  12-13  this Act.
  12-14        (c)  In addition to its principal place of business and
  12-15  full-service offices, a licensee shall register with the banking
  12-16  commissioner each other office, place of business, or location at
  12-17  which the licensee conducts any business.
  12-18        Sec. 2.10.  TRANSFER AND ASSIGNMENT OF LICENSE; CHANGE OF
  12-19  CONTROL.  (a)  A license issued under this Act is not transferable
  12-20  and may not be  assigned.
  12-21        (b)  Control of a licensee may not change without the prior
  12-22  written consent of the banking commissioner.
  12-23        (c)  To acquire control of a licensee, a person must first
  12-24  make written application to the banking commissioner and pay to the
  12-25  banking commissioner an application fee.  The application shall
  12-26  contain information the banking commissioner considers necessary or
  12-27  appropriate for the purpose of making the determination that the
   13-1  person seeking control meets the requirements of an applicant for a
   13-2  license under this Act.
   13-3        (d)  The banking commissioner shall approve or disapprove an
   13-4  application for change of control of a licensee as if the person
   13-5  seeking to acquire control were an applicant for license under this
   13-6  Act.
   13-7         CHAPTER 3.  ADMINISTRATION AND OPERATION REQUIREMENTS
   13-8        Sec. 3.01.  FIDELITY BOND.  (a)  A licensee shall obtain and
   13-9  maintain a fidelity bond to cover a person appointed or elected to
  13-10  a position the duties of which:
  13-11              (1)  include receipt of payments and management or use
  13-12  of money belonging to a licensee engaged in the activities of
  13-13  originating, servicing, or purchasing mortgage loans;
  13-14              (2)  require regular entries in the books or other
  13-15  records of a licensee; or
  13-16              (3)  permit access to or custody of any money or
  13-17  securities of the licensee or a third party.
  13-18        (b)  Each fidelity bond must:
  13-19              (1)  be obtained before the person assumes a position
  13-20  described by Subsection (a);
  13-21              (2)  be issued by a fidelity insurance company licensed
  13-22  to do business in this state; and
  13-23              (3)  insure any loss the licensee may sustain in money
  13-24  or other property from a dishonest or criminal act of or omission
  13-25  by a person required by this section to be bonded, whether the
  13-26  person acted alone or in concert with another.
  13-27        (c)  The banking commissioner may at any time require one or
   14-1  more additional bonds.
   14-2        Sec. 3.02.  SURETY BOND.  (a)  A licensee also shall maintain
   14-3  a surety bond for recovery of expenses, fines, or fees levied by
   14-4  the banking commissioner under this Act.
   14-5        (b)  The bond must be:
   14-6              (1)  payable to the banking commissioner;
   14-7              (2)  conditioned on the licensee's compliance with any
   14-8  applicable final order of the banking commissioner; and
   14-9              (3)  issued by an insurance company authorized to do
  14-10  business in this state and approved by the banking commissioner.
  14-11        Sec. 3.03.  GENERAL BOND REQUIREMENTS.  (a)  This section
  14-12  applies to a bond required under Section 3.01 or 3.02 of this Act.
  14-13        (b)  Each bond must:
  14-14              (1)  be in the form and amount prescribed by the
  14-15  banking commissioner; and
  14-16              (2)  provide that the bond may not be canceled before:
  14-17                    (A)  the 30th day after the date on which written
  14-18  notice of the cancellation is received by the banking commissioner;
  14-19  or
  14-20                    (B)  an earlier date approved by the banking
  14-21  commissioner.
  14-22        (c)  A licensee shall maintain on file at all times with the
  14-23  banking commissioner a true copy of each bond required under this
  14-24  Act, including all riders and endorsements executed after the
  14-25  effective date of the bond.
  14-26        Sec. 3.04.  GENERAL OBLIGATIONS OF LICENSEE.  A licensee
  14-27  shall:
   15-1              (1)  maintain staff reasonably adequate to meet the
   15-2  requirements of this Act, including staff at each full-service
   15-3  office adequate to maintain good business practices such as
   15-4  adequate, organized, and accurate books and records, ample phone
   15-5  lines, adequate hours of business, staff training and supervision,
   15-6  and a mechanism to resolve consumer inquiries, complaints, and
   15-7  problems;
   15-8              (2)  maintain, for a period of at least 36 months, the
   15-9  business records and any other information required by rule
  15-10  regarding each mortgage loan made or brokered by the licensee;
  15-11              (3)  file with the banking commissioner in accordance
  15-12  with this Act each required report;
  15-13              (4)  comply with all applicable tax return filing
  15-14  requirements including those required for each of the three years
  15-15  preceding the date the application is filed;
  15-16              (5)  disburse funds according to the agreements of the
  15-17  licensee and make a good faith effort to complete closings in a
  15-18  timely manner;
  15-19              (6)  account for or deliver to the owner any personal
  15-20  property, including money or a fund, deposit, check, draft,
  15-21  mortgage, or other document or thing of value, that has come into
  15-22  the possession of the licensee, and that the licensee is not
  15-23  entitled to retain, at the time required by law, agreed upon
  15-24  between the licensee and other person, or in the absence of a fixed
  15-25  time, on demand of the person entitled to such accounting and
  15-26  delivery;
  15-27              (7)  advise the banking commissioner in writing of any
   16-1  material adverse change in the information contained in the most
   16-2  recent audit under Section 3.05 of this Act not later than the 31st
   16-3  day after the date of the change;
   16-4              (8)  comply with this Act and orders issued and rules
   16-5  adopted under this Act or any other applicable law;
   16-6              (9)  engage in educational programs and activities, not
   16-7  less than annually, sufficient to maintain the mortgage lending or
   16-8  brokering ability, competence, and skills to properly engage in the
   16-9  business activities regulated by this Act;
  16-10              (10)  submit to periodic examination by the banking
  16-11  commissioner as required by this Act; and
  16-12              (11)  advise the banking commissioner in writing of any
  16-13  judgment entered against, or bankruptcy petition filed by or
  16-14  against, the licensee not later than the 10th day after the date of
  16-15  the judgment or filing.
  16-16        Sec. 3.05.  ACCOUNTING BASIS; ANNUAL AUDIT.  (a)  The books
  16-17  and accounts of a licensee must be maintained on an accrual basis
  16-18  in accordance with generally accepted accounting principles.
  16-19        (b)  A licensee shall cause its books and accounts to be
  16-20  audited by a disinterested certified public accountant at the end
  16-21  of the licensee's fiscal year but in no event later than the first
  16-22  anniversary of the date of the last audit conducted under this Act.
  16-23        (c)  The audit must be sufficiently comprehensive in scope to
  16-24  permit the expression of an opinion on the financial statements in
  16-25  the report and must be performed in accordance with generally
  16-26  accepted auditing standards.  A licensee whose only licensed
  16-27  activity is that of brokering residential mortgage loans may, with
   17-1  the prior approval of the banking commissioner, cause the audit
   17-2  required by this section to be performed by a certified public
   17-3  accountant and certified by the licensee.
   17-4        (d)  The audit report shall be filed with the banking
   17-5  commissioner not later than the 120th day after the last day of the
   17-6  licensee's fiscal year.  The report must be certified by the
   17-7  certified public accountant conducting the audit.
   17-8        (e)  If any licensee does not cause an audit to be made in
   17-9  accordance with this section, the banking commissioner may cause
  17-10  the audit to be made at the licensee's expense.  The banking
  17-11  commissioner shall select a certified public accountant to perform
  17-12  the audit by advertising for bids or by other fair and impartial
  17-13  means established by rule.
  17-14        (f)  In lieu of the audit required by this section, the
  17-15  banking commissioner may accept any audit made in conformance with
  17-16  the audit requirements of the United States Department of Housing
  17-17  and Urban Development.
  17-18        (g)  The work papers of a certified public accountant
  17-19  employed by the licensee for purposes of this section shall be made
  17-20  available to the banking commissioner on request and may be
  17-21  reproduced by the banking commissioner.
  17-22        Sec. 3.06.  NET WORTH REQUIREMENT.  (a)  Except as provided
  17-23  by  this section, a licensee must have and maintain a net worth
  17-24  according to generally accepted accounting principles of not less
  17-25  than $200,000.
  17-26        (b)  If the licensee's only licensed activity is that of
  17-27  brokering residential mortgage loans, the licensee must have and
   18-1  maintain a net worth according to generally accepted accounting
   18-2  principles of not less than $25,000.
   18-3        (c)  In lieu of the net worth requirement established by this
   18-4  section, the banking commissioner may accept evidence that the
   18-5  licensee is in compliance with the net worth requirements of the
   18-6  United States Department of Housing and Urban Development.
   18-7        Sec. 3.07.  ADVERTISING.  (a)  A person conducting business
   18-8  regulated under this Act, regardless of whether the person is
   18-9  required to hold a license under this Act, may not advertise in any
  18-10  manner that:
  18-11              (1)  is false, misleading, or deceptive; or
  18-12              (2)  attempts in any manner to indicate or imply that
  18-13  the interest rates or charges of the person for loans are
  18-14  recommended, approved, set, or established by the state or by this
  18-15  Act.
  18-16        (b)  Each advertisement of a licensee must contain the name
  18-17  and office street address of the licensee that is on file with the
  18-18  banking commissioner.
  18-19        Sec. 3.08.  TRANSFER OF SERVICING; NOTICES.  (a)  If the
  18-20  servicing of a residential mortgage is transferred or sold by a
  18-21  licensee, notice must be given to the mortgagor simultaneously with
  18-22  the transfer.
  18-23        (b)  The notice must include the exact name, street address,
  18-24  and telephone number of:
  18-25              (1)  the person who will answer the mortgagor's
  18-26  questions relating to the residential mortgage; and
  18-27              (2)  the person to whom not less than the next three
   19-1  months' payments are to be submitted.
   19-2        Sec. 3.09.  DISCRIMINATION OR REDLINING PROHIBITED.  A
   19-3  licensee may not, solely because of the age, color, disability,
   19-4  gender, marital status, national origin, race, or religion of an
   19-5  applicant or borrower or because of the geographic location of the
   19-6  proposed security:
   19-7              (1)  refuse to grant a residential mortgage loan; or
   19-8              (2)  vary the terms of a residential mortgage loan or
   19-9  the application procedures for a residential mortgage loan.
  19-10        Sec. 3.10.  ESCROW FUNDS.  (a)  This section applies to each
  19-11  person who conducts the business of residential mortgage lending in
  19-12  this state, regardless of whether the person is required to be
  19-13  licensed under this Act.
  19-14        (b)  Escrow funds for any purpose authorized by a residential
  19-15  mortgage loan contract are subject to and must satisfy all
  19-16  applicable federal requirements.  The escrow funds may not be
  19-17  commingled with any funds of the person conducting the business of
  19-18  residential mortgage lending.
  19-19        (c)  All escrow funds shall be placed in an escrow or impound
  19-20  account in a federally insured savings and loan association,
  19-21  savings bank, credit union, or bank that is organized under the
  19-22  laws of this state or the United States, including a Federal Home
  19-23  Loan Bank or a Federal Reserve Bank, and authorized to do business
  19-24  in this state.
  19-25        (d)  The escrow funds may be removed from the account only
  19-26  to:
  19-27              (1)  make payments authorized by the borrower, allowed
   20-1  by the mortgage loan contract, or required by federal or state law;
   20-2              (2)  make refunds to the mortgagor;
   20-3              (3)  transfer the funds to another qualified
   20-4  institution;
   20-5              (4)  forward the funds to the appropriate servicer;
   20-6              (5)  fulfill another purpose authorized by the
   20-7  residential mortgage loan contract; or
   20-8              (6)  comply with an order of the banking commissioner
   20-9  or of a court of competent jurisdiction.
  20-10        Sec. 3.11.  SOURCE OF FUNDS NOTICE.  At the time of filing a
  20-11  completed residential mortgage loan application a licensee whose
  20-12  services to a borrower are limited to brokering must disclose in
  20-13  the loan brokerage agreement disclosure statement that the broker
  20-14  does not make loans and that the loan funds are provided by another
  20-15  person.
  20-16        Sec. 3.12.  FEE DISCLOSURE.  (a)  Before a borrower signs a
  20-17  completed residential mortgage loan application, the borrower and
  20-18  the licensee must execute, sign, and date a loan brokerage
  20-19  agreement that complies with this section.  A copy of the loan
  20-20  brokerage agreement shall be given to the borrower not later than
  20-21  the third business day after the date on which the loan brokerage
  20-22  agreement is signed by both parties.
  20-23        (b)  The loan brokerage agreement must contain:
  20-24              (1)  a clear and conspicuous statement that, on
  20-25  request, a copy will be made available to the borrower and the
  20-26  borrower's attorney for review before signing;
  20-27              (2)  an explicit description of the services the
   21-1  licensee agrees to perform for the borrower, the fee for each
   21-2  service, an indication of each fee that is refundable, and the
   21-3  requirements for obtaining the refund;
   21-4              (3)  a clear and conspicuous statement of the
   21-5  conditions under which the borrower is obligated to pay the
   21-6  licensee; and
   21-7              (4)  a provision that if the licensee makes a
   21-8  materially false or misleading statement or omission in the
   21-9  agreement, the borrower on written notice may:
  21-10                    (A)  void the agreement;
  21-11                    (B)  recover the amount paid to the broker for
  21-12  which services have not been performed; and
  21-13                    (C)  recover actual costs, including attorney's
  21-14  fees, for enforcing the borrower's rights under the loan brokerage
  21-15  agreement.
  21-16        (c)  The loan brokerage agreement shall be the only agreement
  21-17  between the borrower and licensee with respect to a single loan.
  21-18  The licensee shall also provide to the borrower disclosure
  21-19  statements required to comply with applicable federal and state
  21-20  laws.
  21-21        Sec. 3.13.  FEES AND CHARGES BEFORE CLOSING.  (a)  A licensee
  21-22  whose services to a borrower are limited to brokering may not
  21-23  require a borrower to pay any fee or charge before the closing of
  21-24  the residential mortgage loan other than:
  21-25              (1)  charges to be incurred by the licensee on behalf
  21-26  of the borrower for services from third parties necessary to
  21-27  process the application, such as credit reports and appraisals; and
   22-1              (2)  an application fee.
   22-2        (b)  A licensee who is a lender may not require a borrower to
   22-3  pay any fee or charge before the closing of the residential
   22-4  mortgage loan other than:
   22-5              (1)  a fee or charge authorized under Subsection (a) of
   22-6  this section;
   22-7              (2)  a fee for guaranteeing a specified mortgage
   22-8  interest rate; and
   22-9              (3)  a commitment fee.
  22-10        (c)  A fee for guaranteeing a specified mortgage interest
  22-11  rate may not be charged by a lender unless there is a written
  22-12  agreement signed by the borrower and licensee that contains:
  22-13              (1)  the expiration date of the guarantee;
  22-14              (2)  the principal amount of the mortgage loan;
  22-15              (3)  the term of the mortgage loan;
  22-16              (4)  an identification of the property;
  22-17              (5)  the initial interest rate;
  22-18              (6)  the discount or points to be paid;
  22-19              (7)  the amounts and payment terms of the fee for the
  22-20  guarantee and commitment fee; and
  22-21              (8)  a statement of whether a fee described by
  22-22  Subdivision (7) of this subsection is refundable and, if so, the
  22-23  terms and conditions necessary to obtain the refund.
  22-24        (d)  A commitment fee may not be charged unless there is a
  22-25  commitment in writing signed by the licensee and the borrower
  22-26  containing:
  22-27              (1)  the terms and conditions of the residential
   23-1  mortgage loan; and
   23-2              (2)  the terms and conditions of the commitment,
   23-3  including:
   23-4                    (A)  the expiration date of the commitment;
   23-5                    (B)  the period during which the commitment is
   23-6  irrevocable and may be accepted by the borrower, which may not be
   23-7  less than seven days after the date of commitment or date of
   23-8  mailing, whichever is later;
   23-9                    (C)  the amount and payment terms of the
  23-10  commitment fee;
  23-11                    (D)  a statement of whether the commitment fee is
  23-12  refundable and, if so, the terms and conditions necessary to obtain
  23-13  a refund; and
  23-14                    (E)  any conditions that must be satisfied before
  23-15  closing.
  23-16        (e)  Fees or charges collected under this section other than
  23-17  a fee or charge authorized under Subsection (a) or (b) of this
  23-18  section shall be refunded if a valid commitment or closing is not
  23-19  produced under circumstances that are not the fault of the
  23-20  borrower.
  23-21               CHAPTER 4.  EXAMINATION AND INVESTIGATION
  23-22        Sec. 4.01.  EXAMINATION OF LICENSEE AND AFFILIATES.  (a)
  23-23  Except as otherwise provided by rule, the banking commissioner
  23-24  shall examine each licensee annually or more often as the banking
  23-25  commissioner considers necessary to safeguard the public interest,
  23-26  to determine compliance with this Act, and to enforce this Act.
  23-27  All books, records, documents, and operations of a licensee are
   24-1  subject to examination.  The banking commissioner may examine under
   24-2  oath any officer, director, employee, or agent of the employee.
   24-3        (b)  The banking commissioner shall prepare a report of each
   24-4  examination and deliver a copy of the report to the licensee.  Each
   24-5  principal, officer, and director of the licensee shall take
   24-6  appropriate steps to correct each violation of this Act contained
   24-7  in the report.
   24-8        (c)  The banking commissioner may examine an affiliate of a
   24-9  licensee on the same terms as the licensee if the banking
  24-10  commissioner has reasonable cause for the examination based on
  24-11  interaffiliate transactions discovered during examination of the
  24-12  licensee.
  24-13        (d)  An employee of the department may not participate in any
  24-14  manner in the examination of or other regulatory act relating to a
  24-15  licensee if the employee is an obligor on a loan being serviced by
  24-16  the licensee.  The finance commission may adopt rules relating to
  24-17  employee practices prohibited by this subsection.
  24-18        (e)  The examination required in Subsection (a) of this
  24-19  section may be waived by the banking commissioner if:
  24-20              (1)  the only business of the licensee covered by this
  24-21  Act is the servicing of residential mortgage loans in this state;
  24-22              (2)  the licensee does not service at any time more
  24-23  than 250 residential mortgage loans for residential real property
  24-24  in this state; and
  24-25              (3)  the banking commissioner does not have any
  24-26  regulatory concerns regarding the licensee.
  24-27        Sec. 4.02.  INFORMATION FROM INVESTIGATION IS CONFIDENTIAL.
   25-1  (a) Information obtained, either directly or indirectly, by the
   25-2  department relating to the financial condition or business affairs
   25-3  of a licensee or a shareholder, participant, officer, director,
   25-4  manager, or affiliate of a licensee, other than information
   25-5  obtained from published financial statements, and all related files
   25-6  and records of the department:
   25-7              (1)  are confidential; and
   25-8              (2)  may not be disclosed by the banking commissioner
   25-9  or an officer or employee of the department, except as expressly
  25-10  provided by this Act or a rule adopted under this Act.
  25-11        (b)  Information obtained by the department from a federal
  25-12  regulatory agency that is confidential under federal law may not be
  25-13  disclosed except as provided under federal law.
  25-14        (c)  A member of the finance commission may not be given
  25-15  access to the files and records of the department and confidential
  25-16  information may not be disclosed to any member of the finance
  25-17  commission, except that the banking commissioner may disclose to
  25-18  the finance commission information, files, and records pertinent to
  25-19  a hearing or matter pending before the finance commission.
  25-20        (d)  If the banking commissioner considers it necessary or
  25-21  proper to the enforcement of the laws of this state, another state,
  25-22  or the United States or in the best interest of the public, the
  25-23  banking commissioner may disclose confidential information to any
  25-24  other department of this state, another state, the United States,
  25-25  or any related agency or instrumentality.
  25-26        (e)  Confidential information that is provided to a licensee
  25-27  remains the confidential property of the department.  That
   26-1  information may not be made public or disclosed in any manner by
   26-2  the recipient, or by its officers, directors, managers, employees,
   26-3  or agents, to any person not officially connected to the recipient
   26-4  as an officer, director, employee, attorney, auditor, or
   26-5  independent auditor, except as authorized by rule adopted under
   26-6  this Act.  Any other disclosure or use of the information except as
   26-7  expressly permitted by the banking commissioner may be subject to
   26-8  an enforcement order under Section 5.02 of this Act or to the
   26-9  penalties provided by Section 37.10, Penal Code.
  26-10        (f)  Discovery of confidential information from a person
  26-11  subject to this Act pursuant to subpoena or other legal process
  26-12  must comply with rules adopted under this Act and any other
  26-13  applicable law.  The rules may restrict release of confidential
  26-14  information to that part of the information directly relevant to
  26-15  the legal dispute at issue and may require that a protective order,
  26-16  in the form and under the circumstances specified by the rules, be
  26-17  issued by a court of competent jurisdiction before the release of
  26-18  confidential information.
  26-19        (g)  Notwithstanding any other law, the banking commissioner
  26-20  may refuse to release any information, including files or records,
  26-21  in the custody of the department if, in the opinion of the banking
  26-22  commissioner, release of the information might jeopardize an
  26-23  ongoing investigation of potentially unlawful activities.
  26-24        Sec. 4.03.  INVESTIGATION BY BANKING COMMISSIONER.  (a)  The
  26-25  banking commissioner may issue and serve subpoenas and subpoenas
  26-26  duces tecum to compel the attendance of witnesses and the
  26-27  production of books, accounts, records and other documents and
   27-1  materials relevant to an examination or investigation.  The banking
   27-2  commissioner or a duly authorized representative may administer
   27-3  oaths and affirmations to any person.
   27-4        (b)  If a person does not comply with a subpoena or subpoena
   27-5  duces tecum issued or caused to be issued by the banking
   27-6  commissioner, the banking commissioner may petition a district
   27-7  court in Travis County for:
   27-8              (1)  an order requiring the subpoenaed person to:
   27-9                    (A)  appear and testify; and
  27-10                    (B)  produce the books, accounts, records, and
  27-11  other documents specified in the subpoena duces tecum, if
  27-12  appropriate; and
  27-13              (2)  other appropriate relief.
  27-14        Sec. 4.04.  COLLECTION OF FEES BY LICENSEE.  A person who is
  27-15  required by this Act to hold a license to engage in or offer to
  27-16  engage in any act or service may not bring or maintain an action in
  27-17  any court of this state to collect compensation for the performance
  27-18  of the services subject to this Act unless the person alleges and
  27-19  proves that the person was the holder of a license under this Act
  27-20  at all times during the performance of those services.
  27-21                       CHAPTER 5.  ENFORCEMENT
  27-22        Sec. 5.01.  PROHIBITED ACTIVITIES.  (a)  A person, regardless
  27-23  of whether the person is required to be licensed under this Act,
  27-24  may not knowingly:
  27-25              (1)  provide or offer to provide for any borrower
  27-26  brokering or lending services under any arrangement or agreement
  27-27  with a person who is violating this Act;
   28-1              (2)  fail to disburse funds in accordance with a
   28-2  commitment;
   28-3              (3)  accept any fees at closing that were not disclosed
   28-4  in writing before the closing;
   28-5              (4)  accept attorney's fees at closing in excess of the
   28-6  fees that have been or will be remitted to the person's attorney;
   28-7              (5)  require the borrower to be represented by a
   28-8  particular attorney;
   28-9              (6)  unreasonably refuse to issue or unreasonably delay
  28-10  the issuance of  a satisfaction of mortgage after the mortgage has
  28-11  been fully satisfied;
  28-12              (7)  obtain any agreement or instrument in which blanks
  28-13  are left to be filled in after execution;
  28-14              (8)  obtain any exclusive dealing or exclusive agency
  28-15  agreement from any borrower;
  28-16              (9)  delay closing of any mortgage loan for the purpose
  28-17  of increasing interest, costs, fees, or charges payable by the
  28-18  borrower;
  28-19              (10)  pay, directly or indirectly, an appraiser for any
  28-20  government or private money lending agency with which an
  28-21  application for a home mortgage has been filed for the purpose of
  28-22  influencing the independent judgment of the appraiser with respect
  28-23  to the value of any real property that is to be covered by any home
  28-24  mortgage;
  28-25              (11)  make any false promise likely to influence or
  28-26  persuade anyone;
  28-27              (12)  pursue a course of misrepresentation and false
   29-1  promises in any manner, including through an agent, a solicitor, or
   29-2  advertising; or
   29-3              (13)  misrepresent, circumvent, or conceal, through any
   29-4  kind of subterfuge or device, any material fact relating to a
   29-5  transaction to which the person is a party.
   29-6        (b)  If the banking commissioner finds, from examination,
   29-7  investigation, or review of reports submitted by a licensee or from
   29-8  a reliable person that the business and affairs of a licensee are
   29-9  not being conducted in accordance with this Act, the banking
  29-10  commissioner may issue an order requiring immediate compliance with
  29-11  this Act, specifying a reasonable date for performance.
  29-12        Sec. 5.02.  ENFORCEMENT.  (a)  The banking commissioner may
  29-13  issue an enforcement order if the banking commissioner determines
  29-14  that a licensee is in material violation of this Act or if the
  29-15  banking commissioner finds that a licensee:
  29-16              (1)  has committed a crime involving moral turpitude or
  29-17  fraudulent or dishonest dealing or that a final judgment has been
  29-18  entered against the licensee in a civil action on grounds of fraud,
  29-19  misrepresentation, or deceit that has not been previously reported
  29-20  to the banking commissioner;
  29-21              (2)  is engaging or has engaged in any conduct that is
  29-22  cause for denial of a license;
  29-23              (3)  did not comply with a final order of the banking
  29-24  commissioner;
  29-25              (4)  did not pay in a timely manner any fee, charge, or
  29-26  fine imposed under this Act;
  29-27              (5)  conducted the business of licensee in a manner
   30-1  that constitutes a pattern of substantially underestimating the
   30-2  maximum closing costs;
   30-3              (6)  is insolvent;
   30-4              (7)  misused, wrongfully applied, or misappropriated
   30-5  any trust funds or escrow funds;
   30-6              (8)  has had a license to practice any profession or
   30-7  occupation revoked, suspended, or otherwise acted against,
   30-8  including having an application for a license denied by a licensing
   30-9  authority of this state or another state, territory, or country for
  30-10  fraud, dishonest dealing, or any other act of moral turpitude; or
  30-11              (9)  followed a course of conduct that demonstrates
  30-12  gross negligence or incompetence in performing an act for which the
  30-13  licensee is required to hold a license under this Act.
  30-14        (b)  The enforcement order may impose one or more of the
  30-15  following penalties:
  30-16              (1)  revocation of a license;
  30-17              (2)  suspension of a license subject to reinstatement
  30-18  upon satisfaction of all reasonable conditions specified by the
  30-19  banking commissioner;
  30-20              (3)  placement of the licensee on probation for a
  30-21  specified period subject to all reasonable conditions specified by
  30-22  the banking commissioner;
  30-23              (4)  reprimand of the licensee;
  30-24              (5)  imposition of a fine not to exceed $5,000 for each
  30-25  separate violation; and
  30-26              (6)  appointment of a receiver or conservator.
  30-27        (c)  A licensee shall be subject to the disciplinary actions
   31-1  under this Act for violations by an officer, director, shareholder,
   31-2  joint venturer, partner, ultimate equitable owner, or employee of
   31-3  the licensee.
   31-4        Sec. 5.03.  ENFORCEMENT ORDER REQUIREMENT.  (a)  An order
   31-5  issued under Section 5.02 of this Act must state:
   31-6              (1)  the grounds for the order with reasonable
   31-7  certainty; and
   31-8              (2)  the order's effective date, which may not be
   31-9  before the 21st day after the date the order is mailed or
  31-10  delivered.
  31-11        (b)  A proposed enforcement order shall be served on the
  31-12  licensee by serving any director, officer, or employee at the
  31-13  licensee's business location by personal delivery or by certified
  31-14  mail, return receipt requested.
  31-15        (c)  If the licensee does not request a hearing in writing
  31-16  before the effective date of the proposed order, the order is final
  31-17  and nonappealable.
  31-18        (d)  A requested hearing on a proposed order shall be held
  31-19  not later than the 30th day after the date the written request for
  31-20  hearing is received by the department unless the parties mutually
  31-21  agree to a later hearing date.  The department shall participate as
  31-22  the opposing party and the banking commissioner shall conduct the
  31-23  hearing and as many prehearing conferences and opportunities for
  31-24  discovery as the banking commissioner considers advisable and in
  31-25  accordance with governing law.  During the pendency of the hearing
  31-26  and unless the banking commissioner gives prior written approval
  31-27  otherwise, the licensee may not accept any new business.
   32-1        (e)  Information relating to the financial condition and
   32-2  business affairs of the licensee, except for previously published
   32-3  statements and information, is confidential and may not be released
   32-4  to the public or considered in the public portion of the hearing.
   32-5        (f)  Based on the record, the banking commissioner shall
   32-6  either issue or refuse to issue the proposed order.  The issued
   32-7  order may contain any modifications that the record shows are
   32-8  necessary or desirable.
   32-9        (g)  If a hearing has been held, the banking commissioner has
  32-10  entered an order adverse to the licensee, and the order has become
  32-11  final, the applicant may appeal the final order by filing a
  32-12  petition for judicial review under the substantial evidence rule in
  32-13  a district court in Travis County in accordance with Subchapter G,
  32-14  Chapter 2001, Government Code.
  32-15        Sec. 5.04.  EMERGENCY SUSPENSION.  The banking commissioner,
  32-16  on good cause shown that an emergency exists, may suspend a license
  32-17  for a period not exceeding 30 days, pending investigation.
  32-18        Sec. 5.05.  REINSTATEMENT OR ISSUANCE OF NEW LICENSE.  The
  32-19  banking commissioner may reinstate a suspended license or issue a
  32-20  new license to a licensee whose license has been revoked.
  32-21        Sec. 5.06.  PUBLICATION OF NOTICE OF DISCIPLINARY ACTION.
  32-22  Whenever the banking commissioner issues a final order to revoke or
  32-23  suspend a license issued under this Act or for a licensee to pay a
  32-24  fine, the banking commissioner shall publish notice of that order
  32-25  in the Texas Register and a newspaper of general circulation in the
  32-26  county in which the licensee is located and shall serve a copy of
  32-27  that order upon the licensee.
   33-1        SECTION 2.  This Act takes effect September 1, 1995, except
   33-2  that a person is not required to hold a license under Article 490,
   33-3  Revised Statutes, as added by this Act, to engage in the business
   33-4  of brokering, funding, originating, servicing, or purchasing
   33-5  residential mortgage loans in this state until September 1, 1996.
   33-6        SECTION 3.  The importance of this legislation and the
   33-7  crowded condition of the calendars in both houses create an
   33-8  emergency and an imperative public necessity that the
   33-9  constitutional rule requiring bills to be read on three several
  33-10  days in each house be suspended, and this rule is hereby suspended.