75R11801 CLG-F                           

         By Marchant                                           H.B. No. 2352

         Substitute the following for H.B. No. 2352:

         By Solomons                                       C.S.H.B. No. 2352

                                A BILL TO BE ENTITLED

 1-1                                   AN ACT

 1-2     relating to the registration of mortgage brokers.

 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

 1-4           SECTION 1.  Chapter 20, Title 132, Revised Statutes, is

 1-5     amended by adding Article 9001 to read as follows:

 1-6           Art. 9001.  MORTGAGE BROKER REGISTRATION

 1-7           Sec. 1.  DEFINITIONS.  In this article:

 1-8                 (1)  "Commissioner" means the consumer credit

 1-9     commissioner.

1-10                 (2)  "Mortgage" means a lien interest against real

1-11     estate created by a deed of trust, security deed, or other

1-12     instrument for debt.

1-13                 (3)  "Mortgage applicant" means a person who is

1-14     solicited to purchase or who purchases the services of a mortgage

1-15     broker.

1-16                 (4)  "Mortgage banker" means any person who makes,

1-17     services, or buys and sells mortgage loans with the person's own

1-18     funds.

1-19                 (5)  "Mortgage broker" means a person who, for

1-20     compensation, obtains or sells for another person a one-to-four

1-21     family residential mortgage or a person who, for compensation,

1-22     receives for another person an application from a prospective

1-23     borrower and places or attempts to place the application with a

1-24     mortgage banker or other lender for purposes of making a

 2-1     one-to-four family residential mortgage.  The term does not include

 2-2     a person who delivers an application and other loan information for

 2-3     a mortgage loan to a mortgage broker either on behalf of or at the

 2-4     instruction of the prospective borrower.

 2-5                 (6)  "Registrant" means a person who has been issued a

 2-6     certificate of registration under this article.

 2-7           Sec. 2.  CERTIFICATE OF REGISTRATION REQUIREMENT.  (a)  A

 2-8     person may not act as a mortgage broker without first having

 2-9     obtained a certificate of registration from the commissioner for

2-10     the person's main office and for each other office to be maintained

2-11     by the person for the transaction of business as a mortgage broker

2-12     in this state.

2-13           (b)  An employee of a registrant is not required to obtain a

2-14     certificate of registration.

2-15           (c)  A certificate of registration is not required for:

2-16                 (1)  a bank, savings bank, or savings and loan

2-17     association, or a subsidiary or an affiliate of a bank, savings

2-18     bank, or savings and loan association;

2-19                 (2)  a state or federal credit union;

2-20                 (3)  a lender approved by the secretary of housing and

2-21     urban development for participation in a mortgage insurance program

2-22     under the National Housing Act, as amended (12 U.S.C. Section 1701

2-23     et seq.);

2-24                 (4)  a mortgage banker; or

2-25                 (5)  a person licensed under Chapter 3, Title 79,

2-26     Revised Statutes (Article 5069-3.01 et seq., Vernon's Texas Civil

2-27     Statutes), who makes, negotiates, or arranges a secondary mortgage

 3-1     loan.

 3-2           Sec. 3.  APPLICATION FOR CERTIFICATE OF REGISTRATION.  (a)

 3-3     An application for a certificate of registration as a mortgage

 3-4     broker must be in writing, under oath, and in the form prescribed

 3-5     by the commissioner.  The application must be accompanied by an

 3-6     application fee of $150 for each office location to be maintained

 3-7     by the applicant.

 3-8           (b)  The application fee is not refundable.

 3-9           (c)  If the applicant is a corporation or partnership, one of

3-10     the shareholders or partners, as appropriate, must be named in the

3-11     application as the person responsible for managing the operations

3-12     of the location or locations where business is to be transacted.

3-13           Sec. 4.  QUALIFICATIONS.  To be eligible for a certificate of

3-14     registration, a mortgage broker must:

3-15                 (1)  have at least one of the following minimum levels

3-16     of education, certification, or experience:

3-17                       (A)  an associate's degree in an area relating to

3-18     finance, banking, or business administration from an accredited

3-19     college or university, including an accredited community technical

3-20     college;

3-21                       (B)  the residential mortgage lender or certified

3-22     mortgage consultant certification, issued by the National

3-23     Association of Mortgage Brokers, or other certification similar in

3-24     scope and relevance;

3-25                       (C)  a real estate broker or salesman license

3-26     under The Real Estate License Act (Article 6573a, Vernon's Texas

3-27     Civil Statutes);

 4-1                       (D)  an attorney licensed in this state;

 4-2                       (E)  a certified public accountant licensed in

 4-3     this state; or

 4-4                       (F)  three years of experience:

 4-5                             (i)  in the mortgage and lending field,

 4-6     which may include employment with or as a mortgage broker or with a

 4-7     financial institution, mortgage lending institution, or other

 4-8     lending institution; or

 4-9                             (ii)  that the commissioner determines

4-10     meets a minimum comparable standard for education and experience;

4-11                 (2)  demonstrate evidence of compliance with the

4-12     financial requirements of this article; and

4-13                 (3)  have the financial responsibility, experience,

4-14     character, and general fitness to command the confidence of the

4-15     public and warrant the belief that the business will be operated

4-16     honestly and fairly in compliance with the purposes of this

4-17     article.

4-18           Sec. 5.  MINIMUM NET ASSETS.  (a)  A registrant that conducts

4-19     business as a mortgage broker shall maintain net assets of at least

4-20     $25,000 and a surety bond in the amount of at least $25,000 or a

4-21     surety bond in the amount of at least $50,000.  The term of the

4-22     surety bond must coincide with the term of the certificate of

4-23     registration.

4-24           (b)  This section does not apply to a registrant who is

4-25     licensed to practice law in this state.

4-26           (c)  In this section, "net assets"  means the difference

4-27     between total assets and total indebtedness, as determined by

 5-1     generally accepted accounting principles, except that assets of

 5-2     doubtful or uncertain value are disallowed.

 5-3           Sec. 6.  CRIMINAL HISTORY RECORD INFORMATION.   (a)  On the

 5-4     filing of the application and payment of the application fee by the

 5-5     applicant, the commissioner is entitled to obtain from the

 5-6     Department of Public Safety criminal history record information

 5-7     maintained by the department that relates to a person who is an

 5-8     applicant for a certificate of registration.

 5-9           (b)  Criminal history record information obtained under this

5-10     section is confidential and may not be released or disclosed to any

5-11     person except on court order or with the consent of the person who

5-12     is the subject of the criminal history record information.

5-13           Sec. 7.  ISSUANCE OF CERTIFICATE OF REGISTRATION.  (a)  The

5-14     commissioner shall issue a certificate of registration to a person

5-15     who applies for the certificate not later than the 30th day after

5-16     the date of receipt of a completed application unless the

5-17     commissioner has reason to believe that the eligibility

5-18     requirements of this article are not satisfied or the applicant's

5-19     financial responsibility, experience, character, and general

5-20     fitness do not command the confidence of the public and warrant the

5-21     belief that the business will be operated honestly and fairly in

5-22     compliance with the purposes of this article.

5-23           (b)  The commissioner shall notify an applicant in writing if

5-24     the application is denied.  An applicant may appeal the decision by

5-25     submitting a written request for a hearing not later than the 30th

5-26     day after the date of the decision.

5-27           (c)  A certificate of registration issued under this article

 6-1     may be renewed annually on or before its expiration date by payment

 6-2     of a renewal fee of $150 for each location of an office to be

 6-3     maintained by the applicant and a finding by the commissioner that

 6-4     the applicant meets the conditions set forth by Subsection (a) of

 6-5     this section and that the applicant's certificate of registration

 6-6     is not subject to an order of suspension or revocation by the

 6-7     commissioner.  If a renewal fee is submitted to the commissioner

 6-8     after the registration expires but before the 181st day after the

 6-9     expiration date of the registration, the fee must be accompanied by

6-10     a late renewal fee of $100 for each location of an office

6-11     maintained by the applicant for which the renewal fee is late.

6-12           (d)  Before the 30th day preceding the effective date of an

6-13     address change, a registrant shall notify the commissioner in

6-14     writing of the new address.  If a registrant intends to move the

6-15     business to a location outside the municipality in which it is

6-16     located, a new application must be filed accompanied by the

6-17     application fee and a relocation fee of $15 and a new certificate

6-18     must be obtained before conducting business at the new location.

6-19           (e)  An application, renewal, late renewal, or relocation fee

6-20     may not be refunded after a certificate of registration has been

6-21     issued or renewed.

6-22           (f)  A certificate of registration issued under this article

6-23     is not transferable and may not be assigned.  Ownership or control

6-24     of a registrant may not change without the approval of the

6-25     commissioner.

6-26           Sec. 8.  INVESTIGATION AND INSPECTION OF RECORDS.  (a)  On

6-27     receipt of a written complaint or other probable cause to believe

 7-1     that a person is violating a provision of state law to which this

 7-2     article applies, the commissioner may request the person to furnish

 7-3     information and records relating to a transaction or business

 7-4     practice alleged to be in violation of the law.  If a person fails

 7-5     to comply with a request, the commissioner may conduct an

 7-6     investigation to determine whether a violation has occurred.

 7-7           (b)  All information obtained by the commissioner or an

 7-8     employee or other agent of the commissioner by reason of the

 7-9     person's official position, including information obtained in the

7-10     course of inspecting or investigating an applicant for a

7-11     certificate of registration, is confidential.  That information

7-12     remains confidential for all purposes except for lawful use by the

7-13     commissioner regarding the affairs of the registrant or in

7-14     connection with criminal proceedings.

7-15           Sec. 9.  PROHIBITIONS.  A registrant or applicant for a

7-16     certificate of registration under this article may not:

7-17                 (1)  obtain a certificate of registration through a

7-18     false or fraudulent representation or make a substantial

7-19     misrepresentation in a registration application;

7-20                 (2)  publish or cause to be published an advertisement

7-21     that is misleading, is likely to deceive the public, or in any

7-22     manner tends to create a misleading impression because it fails to

7-23     identify as a registrant the person causing the advertisement to be

7-24     published;

7-25                 (3)  engage in conduct that constitutes improper,

7-26     fraudulent, or dishonest dealings;

7-27                 (4)  fail to notify the commissioner if the registrant

 8-1     or applicant, in a court of competent jurisdiction of this state or

 8-2     another state or in a federal court, is convicted of or enters a

 8-3     plea of guilty or nolo contendere to a felony or a criminal offense

 8-4     involving fraud;

 8-5                 (5)  fail to use fees collected in advance of closing

 8-6     for the purposes for which the fees were paid; or

 8-7                 (6)  charge or receive, directly or indirectly, a fee

 8-8     for assisting a mortgage applicant in obtaining a mortgage until

 8-9     all of the services that the registrant has agreed to perform for

8-10     the mortgage applicant are completed, and the proceeds of the

8-11     mortgage loan have been disbursed to or on behalf of the mortgage

8-12     applicant except as provided by Section 10 of this article.

8-13           Sec. 10.  FEE ASSESSMENT AND DISCLOSURE.  (a)  Before

8-14     completion of all services, a registrant may charge and receive,

8-15     unless prohibited by law, the following fees for services in

8-16     assisting a mortgage applicant to obtain a mortgage:

8-17                 (1)  a fee to obtain a credit report;

8-18                 (2)  a fee for the appraisal of the real estate;

8-19                 (3)  a fee paid directly by the mortgage applicant to a

8-20     state or federal governmental agency or instrumentality for

8-21     processing a mortgage application relating to a

8-22     government-sponsored or guaranteed mortgage program; or

8-23                 (4)  subject to Subsection (b) of this section, fees

8-24     for locking in an interest rate, issuing a commitment letter, and

8-25     processing a loan or a loan application in connection with

8-26     obtaining or refinancing a mortgage loan.

8-27           (b)  A registrant may not charge and receive a fee for

 9-1     locking in an interest rate, issuing a commitment letter, or

 9-2     processing a loan or a loan application unless there is a written

 9-3     agreement signed by the mortgage applicant and registrant that

 9-4     contains:

 9-5                 (1)  the expiration date of the locked-in interest

 9-6     rate;

 9-7                 (2)  the principal amount of the mortgage loan;

 9-8                 (3)  the term of the mortgage loan;

 9-9                 (4)  an identification of the property;

9-10                 (5)  the initial interest rate;

9-11                 (6)  the discount or points to be paid;

9-12                 (7)  the amounts and payment terms of the fee for the

9-13     locked-in interest rate and commitment fee;

9-14                 (8)  a statement of whether a fee described by

9-15     Subdivision (7) of this subsection is refundable and, if so, the

9-16     terms and conditions necessary to obtain the refund; and

9-17                 (9)  sources and amount or computation of amount to be

9-18     paid to a mortgage broker by a person other than the mortgage

9-19     applicant.

9-20           (c)  If a fee is paid by a mortgage applicant for the

9-21     performance of the service described by Subsection (a)(2) of this

9-22     section and the registrant is unable to assist in obtaining a

9-23     mortgage for the mortgage applicant, the registrant shall return to

9-24     the mortgage applicant the original documents prepared by the bona

9-25     fide third party at the time that the request for the mortgage is

9-26     refused or denied.

9-27           (d)  For purposes of this section, "bona fide third party"

 10-1    means a person who is not an employee of, related to, or affiliated

 10-2    with the registrant and who is not used for the purpose of

 10-3    circumvention or evasion of this section.

 10-4          Sec. 11.  SUSPENSION, REVOCATION, OR REFUSAL OF LICENSE;

 10-5    INVESTIGATIONS; CEASE AND DESIST ORDERS.  (a)  After notice and

 10-6    opportunity for a hearing, the commissioner may suspend, revoke, or

 10-7    refuse to issue or renew a certificate of registration if the

 10-8    commissioner finds:

 10-9                (1)  the registrant has failed to pay a fee or charge

10-10    properly imposed by the commissioner under this article;

10-11                (2)  the registrant, knowingly or without the exercise

10-12    of due care, has violated a provision of this article or a rule or

10-13    order made under this article;

10-14                (3)  the existence of a fact or condition that clearly

10-15    would have justified the commissioner in refusing to issue the

10-16    certificate of registration, if the fact or condition existed at

10-17    the time the original application for the certificate of

10-18    registration was made;

10-19                (4)  the registrant has aided, abetted, or conspired

10-20    with a person to circumvent the requirements of this article;

10-21                (5)  the financial responsibility, experience,

10-22    character, or general fitness of the registrant or the registrant's

10-23    owners and managers does not command the confidence of the public

10-24    or warrant the belief that the business will be operated lawfully,

10-25    fairly, and within the purposes of this article; or

10-26                (6)  the registrant has failed to maintain the minimum

10-27    financial requirements of this article.

 11-1          (b)  The commissioner may investigate alleged violations of

 11-2    this article, or the rules adopted under this article, and

 11-3    complaints concerning those alleged violations.  The commissioner

 11-4    may make application to any state district court for an order

 11-5    enjoining such a violation and, on a showing by the commissioner

 11-6    that a person has committed or is about to commit such a violation,

 11-7    the court shall grant an injunction, restraining order, or other

 11-8    appropriate relief.

 11-9          (c)  In the course of an investigation, the commissioner by

11-10    subpoena may compel the attendance and testimony of witnesses and

11-11    the production of any book, record, or other document.  The

11-12    commissioner is entitled to examine the book, record, or other

11-13    document at the registrant's office or place of business and to

11-14    require that copies of the book, record, or other document relating

11-15    to the matter in question be made as considered necessary.  The

11-16    copies must be verified by affidavit of the person or an officer of

11-17    the person who is the subject of the document.  When certified by

11-18    the commissioner, the copies may be admissible in evidence in an

11-19    investigation or hearing under this article or other law to which

11-20    this article applies or an appeal to district court.  For this

11-21    purpose, the commissioner may sign subpoenas, administer oaths and

11-22    affirmations, examine witnesses, and receive evidence.

11-23          (d)  If a person fails to obey a subpoena, the district court

11-24    that has jurisdiction over the witness, on application by the

11-25    commissioner, may issue an order compelling a person to obey the

11-26    subpoena or to testify or produce any book, record, or other

11-27    document relating to the matter.  The filing of an application to

 12-1    enforce a subpoena shall be treated by the district court in the

 12-2    same manner as a motion filed in a civil suit pending in the court.

 12-3    The district court shall set the application for hearing and notice

 12-4    of the filing of the application, and the hearing shall be served

 12-5    on the person to whom the subpoena is directed.

 12-6          (e)  If the commissioner determines that a person is engaged

 12-7    in, or is believed to be engaged in, activities that may constitute

 12-8    a violation of this article, the commissioner, after notice and a

 12-9    hearing, may issue a cease and desist order.

12-10          Sec. 12.  CIVIL ACTIONS; INJUNCTIVE RELIEF; CRIMINAL

12-11    PROSECUTIONS.  (a)  A mortgage applicant injured by a violation of

12-12    this article may bring an action for recovery of damages and

12-13    reasonable attorney's fees and court costs.

12-14          (b)  The commissioner, the attorney general, or a mortgage

12-15    applicant may bring an action to enjoin a violation of this

12-16    article.

12-17          (c)  The remedies provided by this section are in addition to

12-18    any other remedy provided by law.

12-19          (d)  In a proceeding or action brought under this article the

12-20    burden of proving an exemption is on the person claiming the

12-21    benefit of the exemption.

12-22          (e)  A person does not violate this article with respect to

12-23    an act taken or omission made in reliance on a written notice,

12-24    written interpretation, or written report from the commissioner,

12-25    unless a subsequent amendment to the article or rules adopted under

12-26    the article affect the commissioner's notice, interpretation, or

12-27    report.

 13-1          (f)  On disbursement of mortgage proceeds to or on behalf of

 13-2    the mortgage applicant, the registrant that assisted the mortgage

 13-3    applicant to obtain the mortgage is considered to have completed

 13-4    the performance of the registrant's services for the mortgage

 13-5    applicant and owes no additional duties or obligations to the

 13-6    mortgage applicant with respect to the mortgage.  This subsection

 13-7    does not limit or preclude the liability of a registrant for

 13-8    failing to comply with this article or a rule adopted under this

 13-9    article, for failing to comply with a provision of or duty arising

13-10    under an agreement with a mortgage applicant or lender under this

13-11    article, or for violating any other state or federal law.

13-12          Sec. 13.  RULEMAKING POWERS.  (a)  The commissioner may adopt

13-13    rules consistent with and necessary to accomplish the purposes of

13-14    this article, including rules relating to:

13-15                (1)  improper or fraudulent business practices or other

13-16    acts harmful to consumers in this state; and

13-17                (2)  the interpretation, implementation, and

13-18    enforcement of this article.

13-19          (b)  The commissioner may adopt rules to prohibit false,

13-20    misleading, or deceptive practices by registrants but may not adopt

13-21    any other rules restricting competitive bidding or advertising by

13-22    registrants.  In adopting rules to prohibit false, misleading, or

13-23    deceptive practices by registrants, the commissioner may not

13-24    restrict:

13-25                (1)  the use of any medium for advertising;

13-26                (2)  the personal appearance of or voice of a person in

13-27    an advertisement;

 14-1                (3)  the size or duration of an advertisement; or

 14-2                (4)  the registrant's advertisement under a trade name.

 14-3          (c)  The commissioner by rule shall provide for proportionate

 14-4    recovery from registrants of the cost of applications, renewals,

 14-5    and investigation.

 14-6          Sec. 14.  ACCOUNT.  (a)  The commissioner shall deliver all

 14-7    money received under this article to the comptroller for deposit in

 14-8    a special account in the general revenue fund.

 14-9          (b)  Money in the account may be used only to administer this

14-10    article.

14-11          Sec. 15.  EFFECT ON TEXAS CREDIT SERVICES ORGANIZATIONS ACT.

14-12    A registrant is exempt from the requirements of Chapter 18,

14-13    Business & Commerce Code, to the extent that the registrant does

14-14    not charge a fee for any service regulated under that chapter.

14-15          Sec. 16.  SECONDARY MARKET TRANSACTIONS.  This article does

14-16    not prohibit a mortgage broker from receiving compensation from a

14-17    party other than the mortgage applicant for the sale, transfer,

14-18    assignment, or release of rights on the closing of a mortgage

14-19    transaction, provided that the compensation is disclosed in writing

14-20    to the mortgage applicant.

14-21          SECTION 2.  (a)  This Act takes effect September 1, 1997.

14-22          (b)  A person is not required to be registered under Article

14-23    9001, Revised Statutes, as added by this Act, before January 1,

14-24    1998.

14-25          SECTION 3.  The importance of this legislation and the

14-26    crowded condition of the calendars in both houses create an

14-27    emergency and an imperative public necessity that the

 15-1    constitutional rule requiring bills to be read on three several

 15-2    days in each house be suspended, and this rule is hereby suspended.