By Carona                                             S.B. No. 1074
         76R8965 CLG-F                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to the licensing of mortgage brokers; providing civil and
 1-3     administrative penalties.
 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-5           SECTION 1.  Title 113A, Revised Statutes, is amended by
 1-6     adding Article 6573d to read as follows:
 1-7           Art. 6573d.  MORTGAGE BROKERS
 1-8           Sec. 1.  GENERAL PROVISIONS.  (a)  This article may be cited
 1-9     as the Mortgage Broker License Act.
1-10           (b)  An individual may not act in the capacity, engage in the
1-11     business, or advertise or hold that individual out as engaging in
1-12     or conducting the business of a mortgage broker in this state
1-13     without first obtaining a mortgage broker license from the
1-14     commission.  An individual may not act or attempt to act as a loan
1-15     officer unless that individual is, at that time, associated with a
1-16     licensed mortgage broker and acting only for that mortgage broker.
1-17           (c)  Each mortgage broker licensed under this article is
1-18     responsible to the commission and members of the public for all
1-19     acts and conduct performed under this article by the mortgage
1-20     broker or loan officer associated with or acting only for that
1-21     mortgage broker.
1-22           Sec. 2.  DEFINITIONS.  In this article:
1-23                 (1)  "Commission" means the Texas Real Estate
1-24     Commission.
 2-1                 (2)  "Disciplinary action" means an order by the
 2-2     commission that requires one or any combination of the following:
 2-3                       (A)  suspension or revocation of a license issued
 2-4     under this article;
 2-5                       (B)  probation of a suspension or revocation of a
 2-6     license issued under this article on terms and conditions that the
 2-7     commission determines appropriate;
 2-8                       (C)  a reprimand of an individual licensed under
 2-9     this article;
2-10                       (D)  issuance of a cease and desist order under
2-11     this article; or
2-12                       (E)  a fine imposed on an individual licensed
2-13     under this article in an amount that does not exceed $2,500 for
2-14     each violation of this article.
2-15                 (3)  "Loan officer" means an individual representing a
2-16     licensed mortgage broker who solicits business for the broker in
2-17     offering one-to-four family residential loans and who is authorized
2-18     to quote rates, terms, and fees.  The term does not include an
2-19     individual who performs only clerical functions such as delivering
2-20     an application to a mortgage broker or mortgage banker or gathering
2-21     information related to a mortgage loan application on behalf of the
2-22     prospective borrower, mortgage broker, or loan officer.
2-23                 (4)  "Mortgage applicant" means an individual who is
2-24     solicited to use or who uses a mortgage broker to obtain a mortgage
2-25     loan.
2-26                 (5)  "Mortgage banker" means a person who is:
2-27                       (A)  approved or authorized by the United States
 3-1     Department of Housing and Urban Development as a mortgagee with
 3-2     direct endorsement underwriting authority;
 3-3                       (B)  an approved seller or servicer of the
 3-4     Federal National Mortgage Association;
 3-5                       (C)  an approved seller or servicer of Freddie
 3-6     Mac; or
 3-7                       (D)  an approved issuer for the Governmental
 3-8     National Mortgage Association.
 3-9                 (6)  "Mortgage broker" means a person who receives an
3-10     application from a prospective borrower for the purposes of making
3-11     a mortgage loan from that person's own funds or from the funds of
3-12     another person.  The term does not include an individual who
3-13     performs only clerical functions such as delivering an application
3-14     to a mortgage broker or mortgage banker or gathering information
3-15     related to a mortgage loan application on behalf of the prospective
3-16     borrower, mortgage broker, or loan officer.
3-17                 (7)  "Mortgage loan" means a debt against real estate
3-18     secured by a first lien security interest against one-to-four
3-19     family residential real estate created by a deed of trust, security
3-20     deed, or other security instrument.
3-21                 (8)  "Person" means an individual or any other entity.
3-22           Sec. 3.  EXEMPTIONS.  This article does not apply to:
3-23                 (1)  an employee of any of the following entities in
3-24     relation to a mortgage loan that is made for the employer and is
3-25     funded from the employer's own funds:
3-26                       (A)  a bank, bank holding company, savings bank,
3-27     or savings and loan association chartered under the laws of this
 4-1     state, any other state, or the United States or a holding company,
 4-2     subsidiary, or affiliate of a bank, savings bank, or savings and
 4-3     loan association;
 4-4                       (B)  a state or federal credit union;
 4-5                       (C)  a mortgage banker; or
 4-6                       (D)  the holder of a regulated loan license with
 4-7     100 or more employees in this state or a net worth in excess of $1
 4-8     million;
 4-9                 (2)  an individual who makes a mortgage loan from the
4-10     individual's own funds to a spouse, former spouse, or individuals
4-11     in the lineal line of consanguinity of the individual lending the
4-12     money; or
4-13                 (3)  an owner of real property who makes a mortgage
4-14     loan to a purchaser of the property for all or part of the purchase
4-15     price of the real estate against which the mortgage is secured.
4-16           Sec. 4.  APPLICATION FOR A LICENSE.  (a)  An application for
4-17     a mortgage broker license must be in writing, under oath, and on
4-18     the form prescribed by the commission.  The application must be
4-19     accompanied by an application fee of $130 and a recovery fund fee
4-20     as provided by Section 7(b) of this article.
4-21           (b)  An application for a loan officer license must be in
4-22     writing, under oath, and on the form prescribed by the commission.
4-23     The application must be accompanied by an application fee of $80
4-24     and a recovery fund fee as provided by Section 7(b) of this
4-25     article.
4-26           (c)  Application fees under this Act are not refundable.
4-27           (d)  The commission, on receipt of an application for a
 5-1     mortgage broker license or a loan officer license, shall conduct a
 5-2     criminal background check of the applicant.  The commission shall
 5-3     obtain criminal history record information maintained by the Texas
 5-4     Department of Public Safety and the Federal Bureau of
 5-5     Investigation.  The commission may also obtain criminal history
 5-6     record information from any court or any local, state, or national
 5-7     governmental agency.  Unless the information is a public record at
 5-8     the time the commission obtains the information under this
 5-9     subsection, the information is confidential and the commission may
5-10     not release or disclose the information to any person except under
5-11     order from a court or with the permission of the applicant.
5-12           Sec. 5.  QUALIFICATIONS.  (a)  To be eligible to be licensed
5-13     as a mortgage broker a person must:
5-14                 (1)  be an individual;
5-15                 (2)  be a citizen of the United States or a lawfully
5-16     admitted alien;
5-17                 (3)  be at least 18 years of age;
5-18                 (4)  maintain a physical office in this state and
5-19     designate that office in the license application;
5-20                 (5)  provide to the commission satisfactory evidence
5-21     that the person:
5-22                       (A)  has received a bachelor's degree in an area
5-23     relating to finance, banking, or business administration from an
5-24     accredited college or university and has 18 months experience in
5-25     the mortgage or lending field;
5-26                       (B)  is currently and actively licensed in this
5-27     state as:
 6-1                             (i)  a real estate broker under The Real
 6-2     Estate License Act (Article 6573a, Vernon's Texas Civil Statutes);
 6-3     or
 6-4                             (ii)  an attorney; or
 6-5                       (C)  has three years of mortgage lending
 6-6     experience evidenced by documentary proof of full-time employment
 6-7     with a mortgage broker or a person exempt from this article under
 6-8     Section 3(a)(1) of this article;
 6-9                 (6)  demonstrate evidence of compliance with the
6-10     financial requirements of this article; and
6-11                 (7)  have not been convicted of any criminal offense
6-12     that the commission determines directly relates to the occupation
6-13     of a mortgage broker under Article 6252-13c, Revised Statutes.
6-14           (b)  A mortgage broker may conduct business as a corporation,
6-15     partnership, or any other business entity.  A mortgage broker must
6-16     notify the commission, in writing, of any corporate name,
6-17     partnership name, assumed name, or any other name under which the
6-18     mortgage broker conducts activities for which a license is required
6-19     under this article.
6-20           (c)  To be eligible to be licensed as a loan officer, a
6-21     person must:
6-22                 (1)  be an individual;
6-23                 (2)  be a citizen of the United States or a lawfully
6-24     admitted alien;
6-25                 (3)  be at least 18 years of age;
6-26                 (4)  designate in the license application the name of
6-27     the mortgage broker under whom the loan officer will be associated;
 7-1                 (5)  provide to the commission satisfactory evidence
 7-2     that the applicant:
 7-3                       (A)  satisfies one of the requirements under
 7-4     Subsection 5(a)(5) of this section;
 7-5                       (B)  has successfully completed 15 hours of
 7-6     education courses approved by the commission under this section; or
 7-7                       (C)  has 18 months experience as a loan officer
 7-8     for a mortgage broker or a person exempt from this article under
 7-9     Section 3(a)(1) of this article; and
7-10                 (6)  not have been convicted of any criminal offense
7-11     that the commission determines directly relates to the occupation
7-12     of a loan officer under Article 6252-13c, Revised Statutes.
7-13           Sec. 6.  FINANCIAL REQUIREMENTS FOR A MORTGAGE BROKER.  (a)
7-14     A mortgage broker shall maintain net assets of not less than
7-15     $25,000 or a surety bond in an amount not less than $50,000.  The
7-16     term of the bond must coincide with the term of the current license
7-17     period.
7-18           (b)  The commission shall require proof of compliance with
7-19     this section at the time the mortgage broker applies for or renews
7-20     a license.
7-21           (c)  In this section, "net assets" means the difference
7-22     between total assets and total liabilities in accordance with
7-23     generally accepted accounting principles.
7-24           Sec. 7.  MORTGAGE BROKER RECOVERY FUND.  (a)  The mortgage
7-25     broker recovery fund is created as a trust fund outside the state
7-26     treasury to be held by the Texas Treasury Safekeeping Trust Company
7-27     and administered by the commission as trustee on behalf of the
 8-1     persons licensed under this article.  The fund shall be used as
 8-2     provided by this section for reimbursing aggrieved individuals who
 8-3     suffer actual damages by reason of certain acts committed by a
 8-4     person who at the time of the act was a licensed mortgage broker or
 8-5     licensed loan officer under this article, but only if the recovery
 8-6     is ordered by a court against the mortgage broker or loan officer.
 8-7     The use of the fund is limited to a violation of Sections 13(d)(3),
 8-8     (5), (6), (8), (9), (10), (11), (12), (13), (14), or (17) or 13(e)
 8-9     of this article.
8-10           (b)  On application for an original license and on
8-11     application for any renewal of a license issued under this article,
8-12     the applicant shall pay, in addition to the original application
8-13     fee or renewal fee, a fee of $20.  The fee shall be deposited to
8-14     the credit of the mortgage broker recovery fund.
8-15           (c)  If on December 31, 2011, or any year after 2011, the
8-16     balance in the mortgage broker recovery fund is less than $1
8-17     million, each mortgage broker and loan officer licensed under this
8-18     article, on the next renewal of the license, shall pay, in addition
8-19     to any other required fees, a fee of $10.  That fee, or a pro rata
8-20     share of the amount necessary to bring the fund to $1.7 million,
8-21     whichever is less, shall be deposited in the mortgage broker
8-22     recovery fund.  If on December 31 of any of those years, the
8-23     balance in the mortgage broker recovery fund is more than the
8-24     greater of $3.5 million or an amount equal to the total amount of
8-25     claims paid from the fund during the preceding four years, the
8-26     excess amount shall be transferred to the general revenue fund.
8-27           (d)  For a judgment to qualify for payment from the mortgage
 9-1     broker recovery fund, the action resulting in the judgment must be
 9-2     started before the second anniversary of the date the cause of
 9-3     action accrued.
 9-4           (e)  If an aggrieved person recovers a valid judgment in a
 9-5     court against a mortgage broker or loan officer licensed under this
 9-6     article for a violation listed in Subsection (a) of this section,
 9-7     the aggrieved person, after final judgment has been entered,
 9-8     execution returned nulla bona, and a judgment lien perfected, may
 9-9     file a verified claim in the court in which the judgment was
9-10     entered and, on 20 days' written notice to the commission and to
9-11     the judgment debtor, may apply to the court for an order directing
9-12     payment of the amount unpaid on the judgment from the mortgage
9-13     broker recovery fund, subject to the limitations stated in
9-14     Subsection (n) of this section.
9-15           (f)  The court shall immediately proceed on the application.
9-16     On the hearing on the application, the aggrieved person is required
9-17     to show that:
9-18                 (1)  the judgment is based on facts allowing recovery
9-19     under Subsection (a) of this section;
9-20                 (2)  the person is:
9-21                       (A)  not a spouse of the debtor or the personal
9-22     representative of the spouse of the debtor; and
9-23                       (B)  not licensed as a mortgage broker or loan
9-24     officer under this article who is seeking to recover any
9-25     compensation in the transaction or transactions for which the
9-26     application for payment is made;
9-27                 (3)  based on the best available information, the
 10-1    judgment debtor lacks sufficient attachable assets in this or any
 10-2    other state to satisfy the judgment and any bond required under
 10-3    Section 6 of this article is not sufficient to satisfy the
 10-4    judgment; and
 10-5                (4)  the amount that may be realized from the sale of
 10-6    real or personal property or other assets liable to be sold or
 10-7    applied in satisfaction of the judgment and the balance remaining
 10-8    due on the judgment after application of the amount that may be
 10-9    realized.
10-10          (g)  A recovery on the judgment against a single defendant
10-11    made before payment from the mortgage broker recovery fund must be
10-12    applied by the creditor first to actual damages.
10-13          (h)  The court shall order the commission to pay from the
10-14    mortgage broker recovery fund the amount the court finds to be
10-15    payable on the claim, under this section, if the court is
10-16    satisfied, on the hearing, of the truth of all matters required to
10-17    be shown under Subsection (f) of this section and that the
10-18    aggrieved person has satisfied all of the requirements of
10-19    Subsections (e) and (f) of this section.  The commission may
10-20    relitigate any issue material and relevant in the hearing on the
10-21    application that was determined in the underlying action on which
10-22    the judgment in favor of the applicant was based.  If the court
10-23    finds that the aggregate amount of claims against a licensed
10-24    mortgage broker or loan officer exceeds the limitations contained
10-25    in this section, the court shall reduce proportionately the amount
10-26    it finds payable on the claim.
10-27          (i)  A license granted under this article may be revoked by
 11-1    the commission on proof that the commission has made a payment from
 11-2    the mortgage broker recovery fund of any amount toward satisfaction
 11-3    of a judgment against a person licensed as a mortgage broker or
 11-4    loan officer under this article.  The commission may probate an
 11-5    order revoking a license.  No person on whose account payment was
 11-6    made from the fund is eligible to receive a new license under this
 11-7    article until the person has repaid in full, plus interest at the
 11-8    current legal rate, the amount paid from the fund on the person's
 11-9    account.
11-10          (j)  The amounts received by the commission for deposit in
11-11    the mortgage broker recovery fund shall be held by the commission
11-12    in trust for carrying out the purposes of the mortgage broker
11-13    recovery fund.  The funds may be invested and reinvested in the
11-14    same manner as funds of the Employees Retirement System of Texas,
11-15    except that no investment may be made that will impair the
11-16    necessary liquidity required to satisfy judgment payments awarded
11-17    under this section.  Interest from the investments shall be
11-18    deposited to the credit of the mortgage broker recovery fund.
11-19          (k)  When the commission receives notice of entry of a final
11-20    judgment and a hearing is scheduled under Subsection (h) of this
11-21    section, the commission may notify the attorney general of the
11-22    commission's desire to enter an appearance, file a response, appear
11-23    at the court hearing, defend the action, or take whatever other
11-24    action the commission considers appropriate.  In taking such an
11-25    action the commission and the attorney general shall act only to
11-26    protect the mortgage broker recovery fund from spurious or unjust
11-27    claims or to ensure compliance with the requirements for recovery
 12-1    under this section.
 12-2          (l)  When, on the order of the court, the commission has paid
 12-3    from the mortgage broker recovery fund any amount to the judgment
 12-4    creditor, the commission is subrogated to all of the rights of the
 12-5    judgment creditor to the extent of the amount paid.  The judgment
 12-6    creditor shall assign all of the creditor's right, title, and
 12-7    interest in the judgment up to the amount paid by the commission,
 12-8    and that amount has priority for repayment from any subsequent
 12-9    recovery on the judgment.  Any amount and interest recovered by the
12-10    commission on the judgment shall be deposited to the mortgage
12-11    broker recovery fund.
12-12          (m)  The failure of an aggrieved person to comply with this
12-13    section relating to the mortgage broker recovery fund constitutes a
12-14    waiver of any rights under this section.
12-15          (n)  Notwithstanding any other provision, payments from the
12-16    mortgage broker recovery fund:
12-17                (1)  may be made only pursuant to an order of a court,
12-18    as provided by Subsection (e) of this section, and in the manner
12-19    prescribed by this section;
12-20                (2)  for claims, including attorney's fees, interest,
12-21    and court costs arising out of the same transaction, are limited in
12-22    the aggregate to $25,000 regardless of the number of claimants; and
12-23                (3)  for claims based on judgments against one person
12-24    licensed as a mortgage broker or loan officer under this article,
12-25    may not exceed in the aggregate $50,000 until the fund has been
12-26    reimbursed for all amounts paid.
12-27          (o)  This section does not limit the authority of the
 13-1    commission to take disciplinary action against a mortgage broker or
 13-2    loan officer for a violation of this article or a rule of the
 13-3    commission.  The repayment in full of all obligations to the
 13-4    mortgage broker recovery fund by a mortgage broker or loan officer
 13-5    does not nullify or modify the effect of any other disciplinary
 13-6    proceeding brought under this article.
 13-7          (p)  A person who receives payment out of the mortgage broker
 13-8    recovery fund under this section is entitled to receive reasonable
 13-9    attorney's fees as determined by the court, subject to the
13-10    limitations stated in Subsection (n) of this section.
13-11          Sec. 8.  ISSUANCE OF LICENSE CERTIFICATE.  (a)  When the
13-12    applicant for a mortgage broker license has met all requirements
13-13    and conditions for the license, the commission shall issue a
13-14    license to the applicant.  When the applicant for a loan officer
13-15    license has met all requirements and conditions for the license,
13-16    the commission shall issue a license to the mortgage broker
13-17    sponsoring the loan officer.
13-18          (b)  The commission may, in accordance with rules the
13-19    commission adopts under this subsection, issue a provisional
13-20    license to an applicant if a significant delay is necessary to
13-21    process the application, review information related to the
13-22    application, or obtain information related to the application.  The
13-23    commission may revoke a provisional license issued under this
13-24    subsection on any grounds that the commission would have denied
13-25    issuance of the license on the application.
13-26          Sec. 9.  RENEWALS.  (a)  A mortgage broker license issued
13-27    under this article is valid for a two-year period and may be
 14-1    renewed on or before its expiration date if:
 14-2                (1)  the mortgage broker pays to the commission a
 14-3    renewal fee of $130 and a mortgage broker recovery fund fee
 14-4    provided by Section 7(b) of this article;
 14-5                (2)  the mortgage broker has not been convicted of a
 14-6    felony that the commission determines is directly related to the
 14-7    occupation of a mortgage broker under Article 6252-13c, Revised
 14-8    Statutes; and
 14-9                (3)  the mortgage broker provides the commission with
14-10    satisfactory evidence that the mortgage broker:
14-11                      (A)  has attended 15 hours of continuing
14-12    education courses approved by the commission during the term of the
14-13    current license; or
14-14                      (B)  maintains an active license in this state as
14-15    a real estate broker, real estate salesperson, or attorney and has
14-16    satisfied any continuing education requirement necessary to
14-17    maintain that license.
14-18          (b)  A loan officer license issued under this article is
14-19    valid for a two-year period and may be renewed on or before its
14-20    expiration date if the loan officer:
14-21                (1)  pays to the commission a renewal fee of $80 and
14-22    the mortgage broker recovery fund fee provided by Section 7(b) of
14-23    this article;
14-24                (2)  has not been convicted of a felony that the
14-25    commission determines is directly related to the occupation of a
14-26    loan officer under Article 6252-13c, Revised Statutes; and
14-27                (3)  provides the commission with satisfactory evidence
 15-1    that the loan officer:
 15-2                      (A)  has attended 15 hours of continuing
 15-3    education courses approved by the commission during the term of the
 15-4    current license; or
 15-5                      (B)  maintains an active license in this state as
 15-6    a real estate  broker, real estate salesperson, or attorney and has
 15-7    satisfied any continuing education requirement necessary to
 15-8    maintain that license.
 15-9          (c)  The commission may require mortgage brokers and loan
15-10    officers to submit requests for renewals on  a form prescribed by
15-11    the commission.
15-12          (d)  On receipt of a request for a renewal of a license
15-13    issued under this article, the commission may conduct a criminal
15-14    background check that it is authorized to conduct for an original
15-15    license under Section 4(d) of this article.
15-16          (e)  A renewal fee for the renewal of a license issued under
15-17    this article is not refundable.
15-18          Sec. 10.  DENIAL OF APPLICATIONS AND RENEWALS.  If the
15-19    commission fails or refuses to issue a license to an applicant or
15-20    fails or refuses to renew a license, the commission shall promptly
15-21    give written notice of the refusal to the applicant for the license
15-22    or to the applicant requesting the renewal.  Before the applicant
15-23    requesting the renewal may appeal to a district court as provided
15-24    by Section 15 of this article, the applicant must file not later
15-25    than the 10th day after the date of receipt of the notice an appeal
15-26    from the ruling, requesting a time and place for a hearing before
15-27    the commission.  The commission shall set the time and place for
 16-1    the hearing not later than the 30th day after the date of receipt
 16-2    of the appeal, giving at least 10 days' notice of the hearing to
 16-3    the applicant requesting the renewal.  The time of the hearing may
 16-4    be continued from time to time with the consent of the applicant
 16-5    requesting the renewal.  Following the hearing, the commission
 16-6    shall enter an order that, in the commission's opinion, is
 16-7    appropriate in the matter concerned.  If the applicant requesting
 16-8    the renewal fails to request a hearing as provided by this section,
 16-9    the commission's ruling becomes final on the 11th day after the
16-10    date the applicant receives notice and is not subject to review by
16-11    the courts.  The commission may issue a probationary license.  The
16-12    commission by rule shall adopt reasonable terms and conditions for
16-13    a probationary license.
16-14          Sec. 11.  CHANGE OF ADDRESS; CHANGE OF ASSOCIATION.  (a)
16-15    Before the 10th day preceding the effective date of an address
16-16    change, a mortgage broker shall notify the commission in writing of
16-17    the new address accompanied by a change of address fee of $25.  The
16-18    mortgage broker must obtain a new license certificate before
16-19    conducting business at the new location.
16-20          (b)  A loan officer may act only for the mortgage broker
16-21    under whom the loan officer is associated.  A loan officer may be
16-22    associated with only one mortgage broker at a time.  When the
16-23    association of a loan officer with the supervising mortgage broker
16-24    is terminated, the loan officer and the mortgage broker shall
16-25    immediately notify the commission and the mortgage broker shall
16-26    return the loan officer license to the commission.  On return, the
16-27    loan officer's license becomes inactive.  The loan officer license
 17-1    may be activated if, before the license expires, a mortgage broker
 17-2    files a request, accompanied by a fee of $25, notifying the
 17-3    commission that the mortgage broker is associated with the loan
 17-4    officer and assumes responsibility for the actions of the loan
 17-5    officer as provided by Section 1(c) of this article.
 17-6          (c)  A fee under this section is not refundable.
 17-7          Sec. 12.  MAINTENANCE AND LOCATION OF OFFICES; DISPLAY OF
 17-8    LICENSE CERTIFICATES.  (a)  Each mortgage broker licensed under
 17-9    this article shall maintain a physical office within this state.
17-10    The address of the office shall be designated on the license.
17-11          (b)  If a mortgage broker maintains more than one place of
17-12    business within this state, the mortgage broker shall apply for,
17-13    pay a fee of $50 for, and obtain an additional license, known as a
17-14    branch office license, for each additional office the mortgage
17-15    broker maintains.
17-16          (c)  The license of a mortgage broker shall be at all times
17-17    prominently displayed in the mortgage broker's place of business.
17-18    The branch office license shall be at all times prominently
17-19    displayed in the mortgage broker's branch office.  A loan officer
17-20    license shall be at all times prominently displayed in the office
17-21    of the mortgage broker at which the loan officer primarily conducts
17-22    business.
17-23          Sec. 13.  INVESTIGATION AND INSPECTION OF RECORDS.  (a)  The
17-24    commission may, and shall on the signed written complaint of any
17-25    person, provided the complaint, or the complaint together with
17-26    evidence, documentary or otherwise, presented in connection with
17-27    the complaint, provides reasonable cause, investigate the actions
 18-1    and records of a person licensed under this article.  Except for
 18-2    investigations authorized under Subsection (b) of this section, the
 18-3    commission shall, before beginning an investigation, send to the
 18-4    mortgage broker or loan officer who is the subject of the complaint
 18-5    written notice of the complaint and of the commission's intention
 18-6    to investigate the matter.
 18-7          (b)  The commission may not conduct an undercover or covert
 18-8    investigation and may not investigate or initiate other action
 18-9    against a person licensed under this article on the basis of an
18-10    anonymous complaint unless the investigation is expressly
18-11    authorized by the commission after due consideration of the
18-12    circumstances and a determination by the commission that the
18-13    measure is necessary to carry out the purposes of this article.
18-14          (c)  The commission may authorize an employee of the
18-15    commission to file a signed written complaint against a person
18-16    licensed under this article and to conduct an investigation if:
18-17                (1)  a judgment against the person licensed under this
18-18    article has been paid from the mortgage broker recovery fund
18-19    established under this article;
18-20                (2)  the person licensed under this article is
18-21    convicted of a criminal offense that may constitute grounds for the
18-22    suspension or revocation of the license; or
18-23                (3)  the person licensed under this article fails to
18-24    make payment on a check issued by the person to the commission.
18-25          (d)  The commission may order disciplinary action against a
18-26    licensed mortgage broker or a licensed loan officer at any time if
18-27    the commission determines that the mortgage broker or loan officer:
 19-1                (1)  obtained a license under this article through a
 19-2    false or fraudulent representation or made a material
 19-3    misrepresentation in an application for a license under this
 19-4    article;
 19-5                (2)  published or caused to be published an
 19-6    advertisement related to the business of a mortgage broker or loan
 19-7    officer that:
 19-8                      (A)  is misleading;
 19-9                      (B)  is likely to deceive the public;
19-10                      (C)  in any manner tends to create a misleading
19-11    impression;
19-12                      (D)  fails to identify as a mortgage broker or
19-13    loan officer the person causing the advertisement to be published;
19-14    or
19-15                      (E)  violates federal or state law;
19-16                (3)  while performing an act for which a license under
19-17    this article is required, engaged in conduct that constitutes
19-18    improper, fraudulent, or dishonest dealings;
19-19                (4)  failed to notify the commission if the mortgage
19-20    broker or loan officer, in a court in this state or another state
19-21    or in a federal court, is convicted of or enters a plea of guilty
19-22    or nolo contendere to a felony or a criminal offense involving
19-23    fraud not later than the 30th day after the date of the final
19-24    conviction;
19-25                (5)  failed to use fees collected in advance of closing
19-26    of a mortgage loan for the purposes for which the fees were paid;
19-27                (6)  charged or received, directly or indirectly, a fee
 20-1    for assisting a mortgage applicant in obtaining a mortgage loan
 20-2    until all of the services that the mortgage broker or loan officer
 20-3    agreed to perform for the mortgage applicant are completed, and the
 20-4    proceeds of the mortgage loan have been disbursed to or on behalf
 20-5    of the mortgage applicant except as provided by Section 14 of this
 20-6    article;
 20-7                (7)  failed within a reasonable time to make payment on
 20-8    a check issued by the mortgage broker or loan officer to the
 20-9    commission after the commission has mailed a request for payment by
20-10    certified mail to the mortgage broker's or loan officer's last
20-11    known business address as reflected by the commission's records;
20-12                (8)  paid compensation to anyone who is not licensed or
20-13    exempt under this article for acts for which a license under this
20-14    article is required;
20-15                (9)  induced or attempted to induce a party to a
20-16    contract to break that contract so that the mortgage broker or loan
20-17    officer could make a mortgage loan;
20-18                (10)  without the advice of counsel, published or
20-19    circulated an unjustified or unwarranted threat of legal
20-20    proceedings in matters related to the mortgage broker's or loan
20-21    officer's actions or services as a mortgage broker or loan officer;
20-22                (11)  established an association, by employment or
20-23    otherwise, with a person not licensed or exempt under this article
20-24    who was expected or required to act as a mortgage broker or loan
20-25    officer;
20-26                (12)  aided, abetted, or conspired with a person to
20-27    circumvent the requirements of this article;
 21-1                (13)  acted in the dual capacity of a mortgage broker
 21-2    or loan officer and real estate broker, salesperson, or attorney in
 21-3    a transaction without the knowledge and consent of the mortgage
 21-4    applicant or in violation of applicable requirements under federal
 21-5    law;
 21-6                (14)  discriminated against a prospective borrower on
 21-7    the basis of race, color, religion, sex,  national origin,
 21-8    ancestry, familial status, or a disability;
 21-9                (15)  failed or refused on demand to produce a
21-10    document, book, or record in the mortgage broker's or loan
21-11    officer's possession or control concerning a mortgage loan
21-12    transaction conducted by the mortgage broker or loan officer for
21-13    inspection by the commission, authorized employees of the
21-14    commission, or a representative of the commission;
21-15                (16)  failed within a reasonable time to provide
21-16    information requested by the commission as a result of a formal or
21-17    informal complaint to the commission;
21-18                (17)  failed without just cause to surrender, on
21-19    demand, a copy of a document or instrument coming into the mortgage
21-20    broker's or loan officer's possession that was provided to the
21-21    mortgage broker or loan officer by the person making demand or that
21-22    the person making the demand is under law entitled to receive; or
21-23                (18)  disregarded or violated this article or a rule
21-24    adopted by the commission under this article.
21-25          (e)  Unless prohibited by federal law, this article does not
21-26    prevent affiliated or controlled business arrangements or loan
21-27    origination services by or between mortgage brokers and other
 22-1    professionals if the mortgage broker complies with all applicable
 22-2    federal law permitting such an arrangement or service.
 22-3          (f)  A person licensed under this article shall retain each
 22-4    record created or obtained in the normal course of business for a
 22-5    period of at least 25 months after the date on which the record was
 22-6    created or obtained.
 22-7          Sec. 14.  FEE ASSESSMENT AND DISCLOSURE.  (a)  Before
 22-8    completion of all services, a mortgage broker may charge and
 22-9    receive, unless prohibited by law, any of the following fees for
22-10    services in assisting a mortgage applicant to obtain a mortgage:
22-11                (1)  a fee to obtain a credit report;
22-12                (2)  a fee for the appraisals of the real estate;
22-13                (3)  a fee for processing a mortgage application;
22-14                (4)  a fee for taking a mortgage application;
22-15                (5)  a fee to issue a loan commitment;
22-16                (6)  a fee for a courier service;
22-17                (7)  a fee for automated underwriting; or
22-18                (8)  subject to Subsection (b) of this section, a fee
22-19    for locking in an interest rate.
22-20          (b)  A mortgage broker or loan officer may not charge and
22-21    receive a fee for locking in an interest rate unless there is a
22-22    written agreement signed by the mortgage applicant and mortgage
22-23    broker that contains a statement of whether the fee to lock in the
22-24    interest rate is refundable and, if so, the terms and conditions
22-25    necessary to obtain the refund.
22-26          Sec. 15.  HEARINGS AND JUDICIAL REVIEW.  (a)  If the
22-27    commission proposes to suspend or revoke a license issued under
 23-1    this article or if the commission refuses to issue or renew a
 23-2    license to an applicant for a license or renewal under this
 23-3    article, the applicant or person licensed under this article is
 23-4    entitled to a hearing before the commission or a hearings officer
 23-5    appointed by the commission.  The commission shall prescribe
 23-6    procedures by which all decisions to suspend, revoke, or refuse a
 23-7    license are made by or are appealable to the commission.  The
 23-8    commission shall prescribe the time and place of the hearing.
 23-9    However, if the proceeding involves disciplinary action against a
23-10    licensed mortgage broker or loan officer, the hearing, on request
23-11    of the mortgage broker or loan officer, shall be held in the county
23-12    in which the mortgage broker or loan officer has the mortgage
23-13    broker's or loan officer's principal place of business.  The
23-14    hearing is governed by the procedures for a contested case under
23-15    Chapter 2001, Government Code.
23-16          (b)  The commission may issue subpoenas for the attendance of
23-17    witnesses and the production of records or documents.  Process
23-18    issued by the commission may extend to all parts of the state and
23-19    may be served by any person designated by the commission.
23-20          (c)  An individual aggrieved by a ruling, order, or decision
23-21    of the commission has the right to appeal to a district court in
23-22    the county where the hearing was held.  Such an appeal is governed
23-23    by the procedures under Chapter 2001, Government Code.
23-24          Sec. 16.  CIVIL ACTIONS; INJUNCTIVE RELIEF; CRIMINAL
23-25    PROSECUTIONS.  (a)  A mortgage applicant injured by a violation of
23-26    this article may bring an action for recovery of actual monetary
23-27    damages and reasonable attorney's fees and court costs.
 24-1          (b)  The commission, the attorney general, or a mortgage
 24-2    applicant may bring an action to enjoin a violation of this
 24-3    article.
 24-4          (c)  The remedies provided by this section are in addition to
 24-5    any other remedy provided by law.
 24-6          (d)  In a proceeding or action brought under this article in
 24-7    which a person claims an exemption, the person has the burden of
 24-8    proving the exemption.
 24-9          (e)  A person does not violate this article with respect to
24-10    an act taken or omission made in reliance on a written notice,
24-11    written interpretation, or written report from the commission
24-12    unless a subsequent amendment to this article or rules adopted
24-13    under this article affect the commission's notice, interpretation,
24-14    or report.
24-15          (f)  On disbursement of mortgage proceeds to or on behalf of
24-16    the mortgage applicant, the mortgage broker and loan officer that
24-17    assisted the mortgage applicant to obtain the mortgage loan is
24-18    considered to have completed the performance of the mortgage
24-19    broker's and loan officer's services for the mortgage applicant and
24-20    owes no additional duties or obligations to the mortgage applicant
24-21    with respect to the mortgage loan.  This subsection does not limit
24-22    or preclude the liability of a mortgage broker or loan officer for:
24-23                (1)  failing to comply with this article or a rule
24-24    adopted under this article;
24-25                (2)  failing to comply with a provision of or duty
24-26    arising under an agreement with a mortgage applicant or lender
24-27    under this article; or
 25-1                (3)  violating any other state or federal law.
 25-2          (g)  A person commits an offense if the person acts as a
 25-3    mortgage broker or loan officer without first obtaining the
 25-4    appropriate license under this article.  An offense under this
 25-5    subsection is a Class B misdemeanor, except that if the person has
 25-6    been convicted of an offense under this section a subsequent
 25-7    offense is a Class A misdemeanor.
 25-8          (h)  If a person receives money, or the equivalent of money,
 25-9    as a fee or profit by or in consequence of a violation of
25-10    Subsection (g) of this section, the person is additionally liable
25-11    to the aggrieved person for not less than the amount received and
25-12    not more than three times the amount received, as determined by the
25-13    court.  The penalty may be recovered in a court by the aggrieved
25-14    person.
25-15          (i)  If in the judgment of the commission a person has
25-16    engaged, or is about to engage, in an act or practice that is a
25-17    violation of this article, the attorney general or the county
25-18    attorney or district attorney in the county in which the violation
25-19    has occurred or is about to occur or in the county of the
25-20    defendant's residence may maintain an action in the name of this
25-21    state in the district court of that county to abate and temporarily
25-22    and permanently enjoin the act or practice and to enforce
25-23    compliance with this article.  The plaintiff in an action under
25-24    this subsection is not required to give a bond, and court costs may
25-25    not be adjudged against the plaintiff.
25-26          (j)  If a person violates this article, the commission may
25-27    assess an administrative penalty against the person in an amount
 26-1    not to exceed $1,000 for each violation.  Each day a person who
 26-2    continues to violate this article after the commission has demanded
 26-3    that the person cease and desist may be considered a separate
 26-4    violation for the purposes of penalty assessment.  The commission
 26-5    may, after an investigation, determine that a violation has
 26-6    occurred and assess the administrative penalty.  The commission may
 26-7    delegate the commission's authority under this subsection to an
 26-8    employee of the commission.  If the person against whom the penalty
 26-9    is assessed requests a hearing, the commission shall set and give
26-10    notice of hearing.  The hearing shall be held by a hearing examiner
26-11    designated by the commission.  Based on the findings of fact,
26-12    conclusions of law, and recommendations of the hearing examiner,
26-13    the commission by order may find a violation has occurred and may
26-14    assess a penalty or may find that no violation has occurred.  All
26-15    proceedings under this subsection are subject to Chapter 2001,
26-16    Government Code.  The commission may authorize the hearing examiner
26-17    to conduct the hearing and enter a final decision.  Judicial review
26-18    of a final decision under this subsection is subject to Chapter
26-19    2001, Government Code.  A penalty collected under this subsection
26-20    shall be deposited into the mortgage broker recovery fund.
26-21          Sec. 17.  TEXAS MORTGAGE BROKER COMMITTEE; RULEMAKING POWERS.
26-22    (a)  The Texas Mortgage Broker Committee is created.  In addition
26-23    to other powers and duties delegated to it by the commission, the
26-24    committee shall recommend to the commission:
26-25                (1)  rules for the licensing of mortgage brokers and
26-26    loan officers in this state in accordance with this article;
26-27                (2)  rules relating to the education and experience
 27-1    requirements for licensing mortgage brokers and loan officers under
 27-2    this article;
 27-3                (3)  rules regarding the conduct and ethics for
 27-4    mortgage brokers and loan officers licensed under this article;
 27-5                (4)  rules relating to continuing education
 27-6    requirements for licensed mortgage brokers and loan officers and
 27-7    the types of courses acceptable as continuing education courses
 27-8    under this article;
 27-9                (5)  rules relating to granting or denying an
27-10    application or request for renewal for a mortgage broker license or
27-11    loan officer license under this article;
27-12                (6)  the form and format for any applications and forms
27-13    required under this article; and
27-14                (7)  the interpretation, implementation, and
27-15    enforcement of this article.
27-16          (b)  The Texas Mortgage Broker Committee is composed of nine
27-17    members appointed by the commission.  The members of the committee
27-18    hold office for staggered terms of six years, with the terms of two
27-19    members expiring February 1 of each odd-numbered year.  Each member
27-20    holds office until the member's successor is appointed.
27-21    Appointments to the committee shall be made without regard to the
27-22    sex, race, color, age, disability, religion, or national origin of
27-23    the appointees.  In the event of a vacancy during a term, the
27-24    commission shall appoint a replacement who meets the qualifications
27-25    for appointment under this section to fill the unexpired part of
27-26    the term.  Members of the committee must be licensed mortgage
27-27    brokers actively engaged in the business of brokering mortgage
 28-1    loans at the time of appointment and must have been primarily
 28-2    engaged in the business of brokering mortgage loans for at least
 28-3    two years before the member's appointment.  Not more than three
 28-4    members of the committee may hold a real estate broker or salesman
 28-5    license.  Each member of the committee is entitled to a per diem
 28-6    allowance and to reimbursement of travel expenses necessarily
 28-7    incurred in performing functions as a member of the committee,
 28-8    subject to any applicable limitation in the General Appropriations
 28-9    Act.  The committee shall annually elect from its members a
28-10    chairperson, a vice chairperson, and secretary.  A quorum of the
28-11    committee consists of five members.
28-12          (c)  The commission may remove a Texas Mortgage Broker
28-13    Committee member if the member:
28-14                (1)  does not have at the time of appointment the
28-15    qualifications required by Subsection (b) of this section;
28-16                (2)  cannot discharge the member's duties for a
28-17    substantial part of the term for which the member is appointed
28-18    because of illness or disability; or
28-19                (3)  is absent from more than half of the regularly
28-20    scheduled committee meetings that the member is eligible to attend
28-21    during each calendar year, unless the absence is excused by the
28-22    committee.
28-23          (d)  The validity of an action of the Texas Mortgage Broker
28-24    Committee is not affected by the fact that it was taken when a
28-25    ground for removal of a committee member exists.
28-26          (e)  If the administrator of the commission has knowledge
28-27    that a potential ground to remove a member of the Texas Mortgage
 29-1    Broker Committee exists, the administrator shall notify the
 29-2    chairperson of the committee that a potential ground exists.
 29-3          (f)  The commission shall adopt procedural rules to be used
 29-4    by the Texas Mortgage Broker Committee in performing its powers and
 29-5    duties.
 29-6          (g)  The Texas Mortgage Broker Committee is subject to the
 29-7    open meetings law (Chapter 551, Government Code), the open records
 29-8    law (Chapter 552, Government Code), and the Administrative
 29-9    Procedure Act (Chapter 2001, Government Code).
29-10          (h)  The Texas Mortgage Broker Committee shall meet
29-11    semiannually and at the call of the commission.  The committee may
29-12    also meet at the call of a majority of its members.
29-13          (i)  The Texas Mortgage Broker Committee shall act in an
29-14    advisory capacity to develop and recommend to the commission rules
29-15    under this article.  The committee shall review rules relating to
29-16    this section and recommend changes in the rules.  The commission
29-17    shall submit all proposed rules, all proposed rule changes, and all
29-18    requests for proposed rules or rule changes that relate to the
29-19    regulation and licensing of mortgage brokers and loan officers
29-20    under this article to the committee for development or
29-21    recommendation.  The commission may modify the rules developed by
29-22    the committee if the commission finds that the modifications are in
29-23    the public interest.  This section does not prohibit the commission
29-24    from developing and adopting rules relating to the regulation and
29-25    licensing of mortgage brokers and loan officers under this article
29-26    if the committee fails to develop or recommend rules under this
29-27    article within a reasonable period after the proposed rules, rule
 30-1    changes, or requests for proposed rules or rule changes are
 30-2    submitted to the committee.  If the committee determines that a
 30-3    rule requested by the commission should not be developed or
 30-4    recommended for adoption, the committee shall submit a report on
 30-5    the matter to the commission and the chairperson of the commission
 30-6    and the chairperson of the committee shall appoint three members
 30-7    each from their respective bodies to meet as an ad hoc committee to
 30-8    consider the report and recommend possible action by the
 30-9    commission.  The chairperson of the commission or a member of the
30-10    commission designated by the chairperson of the commission shall
30-11    serve as the seventh member of the ad hoc committee.  At least one
30-12    member of the ad hoc committee must be a public member of the
30-13    commission.
30-14          (j)  Under this section, the Texas Mortgage Broker Committee
30-15    may recommend and the commission may adopt rules to prohibit false,
30-16    misleading, or deceptive practices by mortgage brokers and loan
30-17    officers but may not recommend or adopt any other rules restricting
30-18    competitive bidding or advertising by mortgage brokers and loan
30-19    officers.  In recommending and adopting rules to prohibit false,
30-20    misleading, or deceptive practices by mortgage brokers and loan
30-21    officers, the committee and the commission may not restrict:
30-22                (1)  the use of any medium for advertising;
30-23                (2)  the personal appearance of or voice of an
30-24    individual in an advertisement;
30-25                (3)  the size or duration of an advertisement; or
30-26                (4)  the mortgage broker's or loan officer's
30-27    advertisement under a trade name.
 31-1          Sec. 18.  SECONDARY MARKET TRANSACTIONS.  This article does
 31-2    not prohibit a mortgage broker from receiving compensation from a
 31-3    party other than the mortgage applicant for the sale, transfer,
 31-4    assignment, or release of rights on the closing of a mortgage
 31-5    transaction.
 31-6          SECTION 2.  Section 393.002(a), Finance Code, is amended to
 31-7    read as follows:
 31-8          (a)  This chapter does not apply to:
 31-9                (1)  a person:
31-10                      (A)  authorized to make a loan or grant an
31-11    extension of consumer credit under the laws of this state or the
31-12    United States; and
31-13                      (B)  subject to regulation and supervision by
31-14    this state or the United States;
31-15                (2)  a lender approved by the United States secretary
31-16    of housing and urban development for participation in a mortgage
31-17    insurance program under the National Housing Act (12 U.S.C. Section
31-18    1701 et seq.);
31-19                (3)  a bank or savings and loan association the
31-20    deposits or accounts of which are eligible to be insured by the
31-21    Federal Deposit Insurance Corporation or a subsidiary of the bank
31-22    or association;
31-23                (4)  a credit union doing business in this state;
31-24                (5)  a nonprofit organization exempt from taxation
31-25    under Section 501(c)(3), Internal Revenue Code of 1986 (26 U.S.C.
31-26    Section 501(c)(3));
31-27                (6)  a real estate broker or salesman licensed under
 32-1    the Real Estate License Act (Article 6573a, Vernon's Texas Civil
 32-2    Statutes) who is acting within the course and scope of that
 32-3    license;
 32-4                (7)  an individual licensed to practice law in this
 32-5    state who is acting within the course and scope of the individual's
 32-6    practice as an attorney;
 32-7                (8)  a broker-dealer registered with the Securities and
 32-8    Exchange Commission or the Commodity Futures Trading Commission
 32-9    acting within the course and scope of that regulation;
32-10                (9)  a consumer reporting agency; [or]
32-11                (10)  a person whose primary business is making loans
32-12    secured by liens on real property; or
32-13                (11)  a mortgage broker or loan officer licensed under
32-14    the Mortgage Broker License Act (Article 6573d, Revised Statutes)
32-15    who is acting within the course and scope of that license.
32-16          SECTION 3.  (a)  This Act takes effect September 1, 1999.
32-17          (b)  A person is not required to be licensed under Article
32-18    6573d, Revised Statutes, as added by this Act, before January 1,
32-19    2000.
32-20          SECTION 4.  The importance of this legislation and the
32-21    crowded condition of the calendars in both houses create an
32-22    emergency and an imperative public necessity that the
32-23    constitutional rule requiring bills to be read on three several
32-24    days in each house be suspended, and this rule is hereby suspended.