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Indicates Matter Stricken
Indicates New Matter
AMENDED
February 8, 2001
H. 3360
S. Printed 2/8/01--H.
Read the first time January 25, 2001.
EXPLANATION OF IMPACT:
Department of Labor, Licensing and Regulation (LLR)
This Bill transfers the Mortgage Loan Brokers Board to the Department of Labor, Licensing and Regulations (LLR) from the Department of Consumer Affairs. LLR believes that most of the functions of the board could be absorbed by the Real Estate Functional Group. There would be a need for one (1.00 FTE) Investigator III position and one (1.00 FTE) Administrative Assistant to handle licensure and clerical job duties, totaling $60,000, and $20,000 in operating costs. The total cost per year is $80,000. However, these costs would be offset from the revenue generated by the license fees.
Department of Consumer Affairs
Under the Department of Consumer Affairs, the Mortgage Loan Brokers Program generates approximately $300,000 annually through both licenses fees ($550 per application) and non-compliance penalties receipts. There are 2.00 FTE's which are 100% dedicated to the Mortgage Loan Brokers Program, (1.00 FTE) Attorney and (1.00 FTE) Education Coordinator.
SPECIAL NOTES:
Proviso 50.5 of the FY 1999-00 Appropriation Act requires the Professional and Occupational Licensing Agencies to remit 10% of all revenues collected to the General Fund of the State. The Board of Economic Advisors is the appropriate agency to address any revenue impact of this legislation.
Approved By:
Don Addy
Office of State Budget
REVENUE IMPACT1
This bill is expected to increase departmental revenues within the general fund by $20,000 in FY 2001-02. This bill is expected to reduce revenues earmarked to the Department of Consumer Affairs by $310,000 and increase revenues earmarked to the Department of Labor, Licensing and Regulation by $392,000 in FY 2001-02.
Explanation
This bill would transfer administrative control of certain mortgage loan brokers in this State from the Department of Consumer Affairs (CA) to the Department of Labor, Licensing and Regulation (LLR). Currently, license fees are collected annually and CA retains all proceeds for the purpose of regulation. This bill alters the fee schedule and changes the collection period to a biennial basis. License fees go from $550 annually to $800 biennially. The fee for each satellite location goes from $150 annually to $50 biennially. Initial application charges go from $200 to $25. With the change to a Professional and Occupational Licensing Agency (POLA), ten percent of expenditures must be remitted annually to the general fund. Proposed Section 40-58-180 (B) requires that all costs and fines collected by final order or judgment must be deposited in the general fund.
Based on historical license data provided by CA, the BEA expects the new fees to generate $400,000 in the initial biennial licensing period in FY 2001-02, of which $392,000 would be retained by LLR as earmarked funds. LLR projects its operational expenditures to be $80,000 in FY 2001-02. Pursuant to ongoing Proviso 50.5 in Part1B of the General Appropriation Act, ten percent of expenditures, or $8,000, must be transferred to the general fund in FY 2001-02. Because of the program shift to LLR, funds retained by CA would be reduced by a total of $310,000 in FY 2001-02. Of this amount, $298,000 is the current law budget estimate for mortgage broker licenses/penalties and an additional $12,000 is estimated for administrative fines. Pursuant to Section 40-58-180 (B), the $12,000 in fines previously retained by CA would also shift to the general fund in FY 2001-02.
Approved By:
William C. Gillespie
Board of Economic Advisors
1/ This statement meets the requirement of Section 2-7-71 for a state revenue impact, Section 2-7-76 for a local revenue impact, and Section 6-1-85(B) for an estimate of the shift in local property tax incidence.
TO AMEND CHAPTER 58, TITLE 40, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE LICENSURE OF MORTGAGE LOAN BROKERS SO AS TO PLACE THIS BOARD UNDER THE ADMINISTRATION OF THE DEPARTMENT OF LABOR, LICENSING AND REGULATION, TO CONFORM THIS CHAPTER TO THE STATUTORY ORGANIZATIONAL AND ADMINISTRATIVE FRAMEWORK ESTABLISHED FOR PROFESSIONAL AND OCCUPATIONAL LICENSING BOARDS AND TO FURTHER PROVIDE FOR THE LICENSURE AND REGULATION OF INDIVIDUALS AS MORTGAGE LOAN BROKERS.
Amend Title To Conform
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Chapter 58, Title 40 of the 1976 Code is amended to read:
Section 40-58-10. (A) This chapter may be cited as the Licensing Requirements Act of Certain Loan Brokers of Mortgages on Residential Real Property.
(B) No person, partnership, corporation, banking organization, or other organization shall broker a residential mortgage loan as defined in this chapter unless the broker of the mortgage loan:
(1) is an exempt person or organization as defined by Section 40-58-20(5); or
(2) has complied with the provisions of this chapter.
Section 40-58-20. As used in this chapter:
(1) 'Mortgage loan' means a loan to a natural person made primarily for personal, family, or household use primarily secured by a mortgage on residential real property.
(2) 'Residential real property' means real property located in this State upon which there is located or there is to be located one or more single family, owner-occupied dwellings or dwelling units.
(3) 'Mortgage loan broker' means a person or organization in the business of soliciting, processing, placing, or negotiating mortgage loans for others or offering to process, place, or negotiate mortgage loans for others. Mortgage loan broker also includes a person or organization who brings borrowers or lenders together to obtain mortgage loans or renders a settlement service as described in 24 CFR Part 3500.2(a)(16)(ii).
(4) 'Soliciting, processing, placing, or negotiating a mortgage loan' means for compensation or gain, either directly or indirectly, accepting or offering to accept an application for a mortgage loan, assisting or offering to assist in the processing of an application for a mortgage loan, soliciting or offering to solicit a mortgage loan on behalf of a third party, or negotiating or offering to negotiate the terms or conditions of a mortgage loan with a lender on behalf of a third party.
(5) 'Exempt person or organization' means:
(a) a bank, bank holding company, credit union, savings and loan association, savings and loan association holding company, their affiliates and subsidiaries, a supervised licensed lender under Title 37 and a restricted lender under Title 34 and their affiliates and subsidiaries, a Department of Housing and Urban Development or Federal Housing Administration approved mortgagee authorized, chartered, licensed, or approved under the laws of this State or of the United States or an instrumentality of them; or persons or organizations which sell or place all of their conventional mortgage loans on real property with federally insured and/or regulated financial institutions including, but not limited to, banks, savings and loan associations, and credit unions.
(b) an attorney at law licensed to practice law in South Carolina who is not engaged principally in negotiating mortgage loans when the attorney renders services in the course of his practice as an attorney at law;
(c) a person employed by an organization defined in subitem (a) of this item;
(d) title company which is qualified to issue title insurance, directly or through its agents.
(6) 'Licensee' means a person or organization who is licensed pursuant to Section 40-58-50 which engages in the business of soliciting, processing, placing, or negotiating mortgage loans for others or offering to process, place, or negotiate mortgage loans for others.
(7) 'Administrator' means the Administrator of the Department of Consumer Affairs of this State.
(8) 'RESPA' means the Real Estate Settlement Procedures Act of 1974, 12 U.S.C. Section 2601 et seq., as amended.
(9) 'Recasting' means a promise for an individual to recoup a home sold to a third party with the intent of the original seller to rent back the property for a specific time at which the original seller will have the option to purchase the property back at a specific price. The specific period of time would normally be one year.
(10) 'HUD' means the Department of Housing and Urban Development.
(11) 'Department' means the South Carolina Department of Consumer Affairs.
(12) 'Regular business hours' means open for business not less than thirty hours a week, Monday through Friday.
(13) 'Satellite office' means a location at which a mortgage broker may conduct mortgage loan broker business other than at a location that is open for regular business hours and is not required to be staffed full-time by one or more employees who have the authority to contract on behalf of the broker and to accept service on behalf of the broker.
(14) 'Originator' means an employee of a mortgage loan broker whose primary job responsibilities include direct contact with and informing loan applicants of the rates, terms, disclosure, and other aspects of the mortgage. It does not mean an employee whose primary job responsibilities are clerical in nature, such as processing the loan.
Section 40-58-30. (A) No mortgage loan broker, as defined in Section 40-58-20(3), may engage in the business of processing, placing, or negotiating a mortgage loan or offering to process, place, or negotiate a mortgage loan in this State without first being licensed with the administrator.
(B) Notwithstanding subsection (A) of this section, the provisions of this chapter do not apply to an exempt person or organization as defined in Section 40-58-20(5).
Section 40-58-40. No person or organization may offer or agree to offer loan brokerage services in this State without first depositing and continuously maintaining the amount of ten thousand dollars in cash or securities approved by the administrator or a bond in the amount of ten thousand dollars executed by a surety company authorized by the laws of this State to transact business within this State. The bond must be executed to the State of South Carolina and must be for the use of the State and for any consumers who may have a cause of action against the loan broker.
Section 40-58-50. (A) An application to become licensed as a mortgage loan broker must be in writing, under oath, and in a form prescribed by the department. The application must contain the name and complete business and residential address or addresses of the applicant or, if the applicant is a partnership, association, limited liability company, corporation, or other form of business organization, the names and complete business and residential addresses of each member, director, and principal officer and a list of all employees who engage in direct loan brokerage activity.
(B) The application must include an affirmation of financial solvency noting bonding requirements required by the department and the descriptions of the business activities, financial responsibility, educational background, and general character and fitness of the applicant as required by this chapter. The application must be accompanied by a fee, payable to the department, of five hundred fifty dollars.
(C) An applicant must have at least two years' experience working as an originator under the supervision of a mortgage loan broker before his initial license is issued.
(1) In lieu of a showing of two years' experience, an applicant may show proof of two years' employment with a federally insured depository institution, or a VA, FHA, or HUD approved mortgagee during which the applicant was actively engaged in originating residential mortgage loans.
(2) In lieu of one of the required years' experience, an applicant may show proof of the equivalent of six or more semester hours of satisfactorily completed course work in real estate finance, real estate law, or the like counting toward the successful completion of a degree that is baccalaureate level or more advanced with a major or minor in finance, accounting, business administration, real estate finance economics, or similar baccalaureate or more advanced degree approved by the administrator or the administrator's designee from an accredited college or university.
(3) However, all mortgage loan brokers properly licensed as a mortgage loan broker before October 1, 1998, may act as mortgage loan brokers after that date without regard to the experience or education requirement of this subsection if they maintain compliance with the continuing professional education requirements of Section 40-58-67 and otherwise comply with this chapter.
Section 40-58-55. The department may refuse to license an applicant or refuse to renew a license if it finds, after notice and a hearing pursuant to the Administrative Procedures Act, that the applicant or his agent has:
(1) violated a provision of this chapter or an order of the department;
(2) withheld material information in connection with an application for a license or its renewal, or made a material misstatement in connection with the application;
(3) been convicted of a felony or of an offense involving breach of trust, moral turpitude, fraud, or dishonest dealing within the past ten years. Any person who is in business as a mortgage loan broker or is an agent of a broker before October 1, 1998, and who has been convicted of a felony or an offense involving breach of trust, moral turpitude, fraud, or dishonest dealing within the past ten years may continue in business as a mortgage loan broker or agent, but if a mortgage loan broker or an agent of a broker is convicted of the above-referenced offenses on or after October 1, 1998, that person shall be subject to the provisions of this chapter.
Section 40-58-60. (A) Upon the filing of an application for a license, if the department finds that the financial responsibility, experience, character, and general fitness of the applicant, and of the members if the applicant is a copartnership, association, or limited liability company, and of the officers and directors if the applicant is a corporation, are such as to command the confidence of the community and to warrant belief that the business may be operated honestly, fairly, and efficiently according to the purposes of this chapter, it shall license the applicant as a mortgage loan broker and issue a license. If the department does not so find, it shall refuse to license the applicant and shall notify him of the denial.
(B) Upon the receipt of the license, a mortgage loan broker is authorized to engage in the business for which the license was issued.
(C) Each license issued to a licensee must state the address or addresses at which the business is to be conducted and must state fully the name of the licensee and the date of the license. A copy of the license must be posted prominently in each place of business of the licensee. The license is not transferable or assignable.
Section 40-58-65. (A) A person licensed pursuant to this chapter must maintain at his usual place of business books, records, and documents pertaining to the business conducted, to enable the department to determine compliance with this chapter. A licensee with two or more licensed offices may consolidate the records at any one of the licensed offices. The records must be available for examination to the administrator or his designee upon request. Books and records must be maintained for at least three years.
(B) A mortgage broker doing business in this State shall maintain a sufficient physical presence in this State and his records must be maintained at the licensed location in this State. At a minimum, the broker shall maintain an official place of business open during regular business hours, staffed by one or more employees who have the authority to contract on behalf of the broker and to accept service on behalf of the broker. If the official place of business is not open for business within the hours of 8:30 A.M. until 5:00 P.M., Monday through Friday, the broker shall notify the department in writing of the business hours maintained by the broker's official place of business.
(C) A licensed mortgage loan broker with an official place of business within South Carolina also may maintain one or more satellite offices provided that the:
(1) mortgage loan broker notifies the department in writing ten days before the opening of a satellite office of the location of the satellite office and notifies the department that all records from the satellite office are stored in a main or branch location in this State which is staffed by one or more employees during regular business hours;
(2) records of any pending mortgage loan application or records in which a loan closing is still in process are made available at the mortgage loan broker's main or branch location as provided in item (1) to the administrator or his designee within two business days of a written request delivered by facsimile transmission, mail, or hand-delivery by the administrator or his designee;
(3) broker notifies the department in writing within two business days of closing a satellite office.
(D) The department, at its discretion, may examine the books and records of a licensee and other specified documents to determine whether there has been substantial compliance with this chapter. Unless there is reason to believe a violation of this chapter has occurred, examinations must be limited to one each year. Records and information obtained by the department during an examination are confidential and the department must certify that it is in compliance with the Right to Financial Privacy Act (RFPA).
(E) If the mortgage loan broker fails to notify the department of the existence or closing of a satellite office, the actual operating hours of the main or branch offices where records are kept, or the whereabouts of its records, the broker is subject to a penalty of not less than fifty dollars and not more than two hundred fifty dollars. If after the assessment of such a fine within a one-year period, the administrator finds that additional violations of this section are both intentional and repeated, the mortgage loan broker is subject to all of the remedies for violations of this chapter set forth in Section 40-58-80.
Section 40-58-67. Effective for license years beginning after September 30, 1998, all licensed mortgage loan brokers must complete at least eight hours of continuing professional education annually. If the licensed mortgage loan broker is a sole proprietorship or partnership, any owners and partners must complete the required eight hours of continuing professional education annually. If the licensed mortgage loan broker is a limited liability company or corporation, any member or president, chief executive officer, or other officer who has ownership interest of twenty-five percent or greater and who actively participates in the broker entity must complete the required eight hours of continuing professional education annually. Up to eight hours of continuing professional education may be carried forward from one year to the next year; for the license year beginning October 1, 1998, up to eight hours of continuing professional education taken in the preceding twelve months may be carried forward. The continuing professional education completed must be reported to the department annually on a form approved by it showing the date and title of the courses taken, the teacher or sponsor of the course taken, and the hours of continuing professional education claimed for the course. If the course is taught in a classroom setting, fifty minutes of classroom contact shall equal one hour of continuing professional education. Course sponsors must maintain records of attendees for two years after the course. As used in this chapter, 'actively participates' means engaging in direct loan brokering activity as defined in Section 40-58-20(3) and (4).
Documentation of attendance at the courses or correspondence courses completed must be maintained by the mortgage loan broker and shall consist of a certificate of completion issued by the teacher or sponsor of the course showing the recommended number of hours of continuing professional education. This documentation is subject to inspection by the department for up to two years after the date of the course. Courses offered by the National Association of Mortgage Brokers, the South Carolina Mortgage Brokers Association, the department or courses related to real estate law or related law topics, appraisals, mortgage lending, financial management, financial planning, or mortgage processing are considered to qualify for continuing professional education. The department shall offer continuing professional education courses to assist mortgage loan brokers in obtaining the continuing professional education required by this chapter.
The department shall appoint two mortgage loan brokers and one representative of the department to a panel for two-year terms to approve any courses questioned as to their qualifications as continuing professional education. The panel may conduct its meetings via conference call. The department shall develop a questionnaire to ascertain the interest and background of potential members of this panel.
If a mortgage loan broker fails to complete his continuing professional education in a timely manner, his license shall expire and the licensee shall pay a penalty not in excess of one hundred dollars in order to renew the license.
However, the mortgage loan broker may request an administrative hearing to appeal the expiration of his license for failure to complete continuing professional education requirements. A license may be renewed without penalty within thirty days after the expiration if the broker completes his professional education requirements.
Section 40-58-70. Mortgage loan brokers may not:
(1) misrepresent the material facts or make false promises likely to influence, persuade, or induce an applicant for a mortgage loan or a mortgagor to take a mortgage loan. This includes presenting the broker in the guise of a lender or pursuing a course of misrepresentation through agents or otherwise;
(2) intentionally misrepresent or conceal a material factor, term, or condition of a transaction to which he is a party, pertinent to an applicant for a mortgage loan or a mortgagor;
(3) engage in a transaction, practice, or course of business which is unconscionable in light of the regular practices of a mortgage loan broker, or which operates a fraud upon a person, in connection with the making of or purchase or sale of a mortgage loan;
(4) fail to use due diligence and make reasonable efforts to procure a loan on behalf of a borrower;
(5) collect any third party fees before a conditional loan commitment is obtained by the mortgage broker with the exception of normal processing expenses associated with the making of mortgage loans as authorized or allowed by FNMA, FHLMC, FHA, VA, or any additional fees authorized or allowed by the department;
(6) engage in recasting unless the applicant obtains the advice and counsel of a licensed attorney who is independent to the transaction. No party to a transaction, other than the consumer, may recommend, retain, or influence the selection of independent counsel. An applicant for recasting shall provide to the broker a document identifying the applicant, provide a brief summary of the proposed transaction, and a written statement from an attorney certifying that the applicant has been advised of the potential consequences of recasting.
Section 40-58-75. (A) Within three business days of the receipt of an application for a loan, the broker must disclose in a statement the total estimated charges to the borrower for the loan and an itemization of the charges provided if required under RESPA. The disclosure is considered delivered when deposited with United States Postal Service for first class delivery.
(B) No person may earn a mortgage broker's fee unless the person meets the requirements of this chapter, is authorized to conduct mortgage brokerage services by this chapter, or is exempt from the requirements of this chapter.
(C) All fees earned for services rendered as a mortgage broker must be disclosed to the applicant by the mortgage broker as required by RESPA.
Section 40-58-80. (A) Upon the finding that an action of a mortgage loan broker may be in violation of this chapter, or of a law or regulation of this State or of the federal government or an agency of them, the department, after reasonable notice to the mortgage loan broker and an opportunity for the mortgage loan broker to be heard, shall order it to cease and desist from the action.
(B) If the mortgage loan broker fails to appeal the cease and desist order of the department in accordance with Section 40-58-90 and continues to engage in the action in violation of the department's order, he is subject to a penalty of not less than one thousand nor more than two thousand five hundred dollars, in the discretion of the department, for each action he takes in violation of the department's order. The penalty provision of this section is in addition to and not instead of other provisions of law applicable to a mortgage loan broker for the mortgage loan broker's failure to comply with an order of the department.
(C) The department, upon the finding that a mortgage loan broker has engaged intentionally or repeatedly in a course of conduct in violation of this chapter, may revoke the license of the mortgage loan broker temporarily or permanently in its discretion after reasonable notice to the broker and an opportunity for the broker to be heard and may increase the required bond up to a maximum of twenty-five thousand dollars to ensure that the public is protected adequately. The department also may impose upon persons violating the provisions of this chapter administrative fines of not more than five hundred dollars for each offense or not more than five thousand dollars for the same set of transactions or occurrences. Each violation constitutes a separate offense. The department, if it determines that the required bond must be increased, shall state in writing the reasons for the increase and immediately serve it upon the mortgage loan broker. The mortgage loan broker shall provide the new bond within thirty days or the department shall revoke the license of the mortgage loan broker.
(D) A person who violates a provision of this chapter is guilty of a misdemeanor, and upon conviction, must be fined not more than five hundred dollars or imprisoned not more than six months, or both.
(E) Nothing in this chapter limits a statutory or common law right of a person to bring an action in a court for an act or the right of the State to punish a person for a violation of a law.
(F) The administrator of the department may suspend the right of an individual to engage in mortgage loan broker activity after finding that an employee of a licensed mortgage loan broker has failed to comply with a provision of this chapter.
Section 40-58-90. An aggrieved party, within thirty days after the final decision of the department and by written notice to the department, may appeal to the circuit court of the county where the appellant resides as provided by Article 3, Chapter 23 of Title 1, the Administrative Procedures Act.
Section 40-58-100. The department may promulgate regulations necessary to effectuate the purposes of this chapter.
Section 40-58-110. (A) In addition to the initial license application fee of five hundred fifty dollars required by Section 40-58-50, first time licensees also shall pay a one-time, nonrefundable processing fee of two hundred dollars. Thereafter, a licensee shall pay an annual renewal fee of five hundred fifty dollars. A licensee shall pay an initial fee of one hundred fifty dollars and, thereafter, a renewal fee of one hundred fifty dollars for each satellite location. The broker shall notify the department in writing ten days before opening a new, official branch or satellite location. No initial fee is required when the licensee notifies the department of a change in address for an official branch or satellite location.
(B) The term of each license is one year. Licenses issued under this chapter expire on September thirtieth each year and must be renewed in accordance with the provisions of this section.
(C) Failure to renew a license within thirty days of its expiration results in the license being canceled by the department. A license may be renewed after the thirty-day grace period provided the renewal is accompanied by a late penalty of two hundred fifty dollars in addition to the five hundred fifty dollar license renewal fee. All renewable applications must contain information required by the department. All fees collected by the department pursuant to this chapter must be used to implement the provisions of this chapter.
Section 40-58-2. This chapter may be cited as the 'Licensing Requirements Act of Certain Loan Brokers of Mortgages on Residential Real Property'.
Section 40-58-5. Unless otherwise provided for in this chapter, Article 1, Chapter 1, Title 40 applies to mortgage loan brokers. However, if there is a conflict between this chapter and Article 1, Chapter 1, Title 40, the provisions of this chapter control.
Section 40-58-10. There is created the South Carolina Mortgage Loan Brokers Board under the administration of the Department of Labor, Licensing and Regulation.
The board consists of four mortgage loan brokers, each of whom must have five years or more experience and hold a valid license issued under this chapter, one realtor who is a real estate broker or real estate appraiser, one representative of a financial institution, and one member of the public. No member may have an ownership interest in any business entity that provides or procures continuing professional education courses, programs, or seminars for mortgage loan brokers. All members must be appointed by the Governor. Nominations for the appointment to the board may be submitted to the Governor from a group, individual, or association and must be considered in accordance with Section 40-1-45. Members shall serve terms of four years with no more than two consecutive terms and until a successor has been appointed and qualifies. A vacancy on the board must be filled for the remainder of the unexpired term in the manner of the original appointment.
The Governor may remove a member of the board in accordance with Section 1-3-240.
Section 40-58-20. As used in this chapter:
(1) 'Director' means the Director of the Department of Labor, Licensing and Regulation or the director's designee.
(2) 'Department' means the South Carolina Department of Labor, Licensing and Regulation.
(3) 'FHA' means the Federal Housing Administration.
(4) 'HUD' means the Department of Housing and Urban Development.
(5) 'Licensee' means an individual licensed pursuant to this chapter engaging in the business of soliciting, processing, placing, or negotiating mortgage loans for others or offering to process, place, or negotiate mortgage loans for others and who has final loan decision authority.
(6) 'Mortgage loan' means a loan to a natural person made primarily for personal, family, or household use primarily secured by a mortgage on residential real property.
(7) 'Mortgage loan broker' or 'broker' means an individual in the business of soliciting, processing, placing, or negotiating mortgage loans for others or offering to process, place, or negotiate mortgage loans for others and who has final loan decision authority. 'Mortgage loan broker' also includes an individual who brings borrowers or lenders together to obtain mortgage loans or renders a settlement service as described in 24 CFR Part 3500.2(a)(16)(ii).
(8) 'Mortgage loan brokerage office' means a firm, partnership, association, corporation, or other form of business registered by the department for the purpose of soliciting, processing, placing, or negotiating mortgage loans and that is staffed by at least one licensed mortgage loan broker.
(9) 'Originator' means an employee of a mortgage loan broker whose primary job responsibilities include direct contact with and informing loan applicants of the rates, terms, disclosure, and other aspects of the mortgage. It does not mean an employee whose primary job responsibilities are clerical in nature, such as processing the loan.
(10) 'Recasting' means a promise for an individual to recoup a home sold to a third party with the intent of the original seller to rent back the property for a specific time at which the original seller will have the option to purchase the property back at a specific price. The specific period of time would normally be one year.
(11) 'Residential real property' means real property located in this State upon which there is located or there is to be located one or more single family, owner-occupied dwellings or dwelling units.
(12) 'RESPA' means the Real Estate Settlement Procedures Act of 1974, 12 U.S.C. Section 2601 et seq., as amended.
(13) 'Satellite office' means a location at which a mortgage broker may conduct mortgage loan broker business other than at a location that is open for regular business hours and is not required to be staffed full time.
(14) 'Soliciting, processing, placing, or negotiating a mortgage loan' means for compensation or gain, either directly or indirectly, accepting or offering to accept an application for a mortgage loan, assisting or offering to assist in the processing of an application for a mortgage loan, soliciting or offering to solicit a mortgage loan on behalf of a third party, or negotiating or offering to negotiate the terms or conditions of a mortgage loan with a lender on behalf of a third party.
(15) 'VA' means the Veteran's Administration.
Section 40-58-30. (A) No individual may act as a mortgage loan broker engaging in the business of soliciting, processing, placing, or negotiating a mortgage loan in this State without first being licensed pursuant to this chapter.
(B) Notwithstanding subsection (A), this chapter does not apply to:
(1) a bank, bank holding company, credit union, savings and loan association, savings and loan association holding company, their affiliates and subsidiaries, a supervised licensed lender under Title 37 and a restricted lender under Title 34 and their affiliates and subsidiaries, a HUD or FHA approved mortgagee authorized, chartered, licensed, or approved under the laws of this State or of the United States or an instrumentality of them; or persons or organizations which sell or place all of their conventional mortgage loans on real property with federally insured or regulated financial institutions including, but not limited to, banks, savings and loan associations, and credit unions;
(2) a person employed by an organization set forth in item (1); a title company which is qualified to issue title insurance, directly or through its agents;
(3) an attorney at law licensed to practice law in South Carolina who is not engaged principally in negotiating mortgage loans when the attorney renders services in the course of his practice as an attorney at law;
(4) an individual employed by and solely responsible to a licensed mortgage loan broker and who prepares supporting documentation and performs ministerial functions pursuant to specific instructions of the licensee but who may not exercise independent discretion or judgment regarding a final loan decision or hold himself out to the public as a mortgage loan broker.
Section 40-58-50. (A) In addition to an initial license application fee of twenty-five dollars, the applicant shall pay a license fee not to exceed eight hundred dollars biennially.
(B) The fee required to register each mortgage loan brokerage office or satellite office is fifty dollars biennially.
(C) Application, license, and registration fees are payable to the department in advance and must accompany a license application. Application fees are nonrefundable.
Section 40-58-60. (A) The board annually shall elect from among its members a chairman, vice-chairman, and other officers as the board determines necessary. The board shall adopt rules and procedures reasonably necessary for the performance of its duties and the governance of its operations and proceedings.
(B) The board shall meet upon the call of the chairman or the department.
(C) Four members of the board constitute a quorum; however, if there is a vacancy on the board, a majority of the members serving constitutes a quorum.
(D) Any business conducted by the board must be by a positive majority vote. For purposes of this subsection, 'positive majority vote' means a majority vote of the entire membership of the board, reduced by any vacancies existing at the time.
Section 40-58-70. (A) The board shall:
(1) advise the department on matters relating to the regulation and issuance of licenses to mortgage loan brokers and on policies necessary to carry out this chapter;
(2) hear disciplinary actions against licensees as authorized under this chapter and may impose penalties and sanctions pursuant to this chapter.
(B) The board has only those powers and duties provided for in this section and as is otherwise specifically set forth in this chapter.
Section 40-58-80. For the purpose of conducting an investigation or proceeding under this chapter, the department may subpoena witnesses, take evidence, and require the production of any documents or records which is considered relevant to the inquiry.
Section 40-58-90. (A) If, from the results of an investigation by the department, it appears that a violation has occurred or that a licensee has become unfit to practice as a mortgage loan broker, the board, in accordance with the Administrative Procedures Act, may take disciplinary action authorized by Section 40-1-120. No disciplinary action may be taken unless the matter is presented to and voted upon by the board. The board may designate a hearing officer or hearing panel to conduct hearings or take other action as may be necessary under this section.
(B) For the purpose of a proceeding under this chapter, the department may administer oaths and issue subpoenas for the attendance and testimony of witnesses and the production and examination of books, papers, and records on behalf of the board or, upon request, on behalf of a party to the case. Upon failure to obey a subpoena or to answer questions propounded by the board or its hearing officer or panel, the department may apply to an administrative law judge for an order requiring the individual to comply with the subpoena.
Section 40-58-100. (A) When the department has reason to believe that a mortgage loan broker is violating or intends to violate a provision of this chapter or a regulation promulgated under this chapter, in addition to all other remedies, it may order the broker immediately to cease and desist from engaging in the conduct. If the individual is practicing as a mortgage loan broker without being licensed under this chapter, is violating a board or department order, a provision of this chapter, or a regulation promulgated under this chapter, the department also may apply, in accordance with the rules of the Administrative Law Judge Division, to an administrative law judge for a cease and desist order.
(B) If the mortgage loan broker fails to appeal the cease and desist order of the department and continues to engage in the action in violation of the department's order, the broker is subject to a penalty to be imposed by the department of not less than one thousand dollars and not more than two thousand, five hundred dollars for each action taken in violation of the department's order. This penalty is in addition to other provisions of law applicable to a mortgage loan broker for the broker's failure to comply with an order of the department.
(C) The department may seek from an administrative law judge other equitable relief to enjoin the violation or intended violation of this chapter or a regulation promulgated under this chapter.
(D) The director, an employee of the department, or a member of the board may not be held liable for damages resulting from a wrongful cease and desist order.
Section 40-58-110. (A) In addition to grounds for disciplinary action as set forth in Section 40-1-110 and in accordance with Section 40-58-120, the board may take disciplinary action against a licensee who:
(1) violates federal or state laws relating to practicing as a mortgage loan broker;
(2) violates a provision of this chapter or an order issued under this chapter or a regulation promulgated under this chapter;
(3) fraudulently or deceptively attempts to use, obtain, alter, sell, or barter a license;
(4) aids or abets a person who is not a licensed mortgage loan broker in illegally practicing as a mortgage loan broker within this State;
(5) participates in the fraudulent procurement or renewal of a license for himself or another person or allows another person to use his license;
(6) commits fraud or deceit in practicing as a mortgage loan broker including, but not limited to:
(a) using or promoting or causing the use of any misleading, deceiving, or untruthful advertising matter, promotional literature, testimonial guarantee, warranty, label, brand insignia, or representation;
(b) wilfully making or filing a false report or record in practicing as a mortgage loan broker or in satisfying requirements of this chapter;
(c) submitting a false statement to collect a fee or obtaining a fee through fraud or misrepresentation;
(7) commits an act of dishonest, immoral, or unprofessional conduct while practicing as a mortgage loan broker including, but not limited to:
(a) engaging in illegal, incompetent, or negligent practice of a mortgage loan broker;
(b) providing professional services while mentally incompetent or under the influence of alcohol or drugs;
(8) is convicted of or pleads guilty or nolo contendere to a felony, a crime of moral turpitude, fraud, breach of trust, or violation of a federal, state, or local drug law;
(9) fails to report to the department, in writing by certified mail within ten days, a conviction, guilty plea, or plea of nolo contendere to any offense enumerated in this subsection;
(10) is disciplined by a licensing or disciplinary authority of another state, country, or nationally recognized professional organization or convicted of or disciplined by a court of any state or country for an act that would be grounds for disciplinary action under this section;
(11) violates the code of ethics promulgated in regulation by the department;
(12) misrepresents material facts or makes false promises likely to influence, persuade, or induce an applicant for a mortgage loan or a mortgagor to take a mortgage loan, including presenting the broker in the guise of a lender or pursuing a course of misrepresentation through agents or otherwise;
(13) intentionally misrepresents or conceals a material factor, term, or condition of a transaction to which he is a party, pertinent to an applicant for a mortgage loan or a mortgagor;
(14) engages in a transaction, practice, or course of business which is unconscionable in light of the regular practices of a mortgage loan broker, or which perpetrates a fraud upon a person, in connection with the making of or purchase or sale of a mortgage loan;
(15) fails to use due diligence or make reasonable efforts to procure a loan on behalf of a borrower;
(16) collects any third party fees before a conditional loan commitment is obtained by the mortgage broker with the exception of normal processing expenses associated with the making of mortgage loans as authorized or allowed by the Federal National Mortgage Association, Federal Home Loan Mortgage Commission, or any additional fees authorized or allowed by the department;
(17) engages in recasting unless the applicant obtains the advice and counsel of a licensed attorney who is independent to the transaction. No party to a transaction, other than the consumer, may recommend, retain, or influence the selection of independent counsel. An applicant for recasting shall provide to the broker a document identifying the applicant, a brief summary of the proposed transaction, and a written statement from an attorney certifying that the applicant has been advised of the potential consequences of recasting.
(B) The board may suspend the right of an individual to engage in mortgage loan broker activity after finding that an employee of a licensed mortgage loan broker has failed to comply with a provision of this chapter.
Section 40-58-115. The department and the board, as applicable, have jurisdiction over the actions of licensees and former licensees as provided to boards in Section 40-1-115.
Section 40-58-120. Upon a determination by the board that one or more of the grounds for discipline of a licensee exists, the board may impose sanctions provided for in Section 40-1-110 and Section 40-1-120 including imposing a fine of not more than one thousand dollars for each violation.
Section 40-58-130. The department may deny licensure or license renewal to an applicant who has committed an act that would be grounds for disciplinary action under this chapter or Section 40-1-110. The department must deny a license to an applicant who has failed to demonstrate the qualifications and standards for licensure contained in this chapter.
Section 40-58-140. The department may refuse to license an applicant or refuse to renew a license if it finds, after notice and a hearing pursuant to the Administrative Procedures Act, that the applicant has:
(1) violated a provision of this chapter or an order of the department;
(2) withheld material information in connection with an application for a license or its renewal or made a material misstatement in connection with the application;
(3) been convicted of a felony or pled nolo contendere to an offense involving breach of trust, theft, fraud, or dishonest dealing within the past ten years. Any person who is in business as a mortgage loan broker or is an agent of a broker before October 1, 1998, and who has been convicted of a felony or an offense involving breach of trust, theft, fraud, or dishonest dealing within the past ten years may continue in business as a mortgage loan broker or agent, but if a mortgage loan broker or an agent of a broker is convicted of the above-referenced offenses on or after October 1, 1998, that person shall be subject to the provisions of this chapter.
Section 40-58-150. A licensee who is under investigation for a violation of this chapter or Section 40-1-110 may voluntarily surrender to the department his license to practice. The voluntary surrender invalidates the authorization to practice at the time of its relinquishment, and no individual whose authorization to practice is surrendered voluntarily may practice unless the department reinstates the license. An individual practicing as a mortgage loan broker during the period of voluntary surrender is considered engaging in unlawful practice and is subject to the penalties provided for in this chapter. The surrender of a license may not be considered an admission of guilt in a proceeding under this chapter and does not preclude the board from taking disciplinary action against the licensee as provided for in this chapter including, but not limited to, imposing conditions that must be met before the department reinstates the license.
Section 40-58-160. An individual aggrieved by an action of the department or the board may appeal the decision to an administrative law judge in accordance with Article 3, Chapter 23, Title 1, Administrative Procedures Act. Notice of appeal does not stay a decision of the department or the board pending completion of the appellate process.
Section 40-58-170. An individual found in violation of this chapter or regulations promulgated under this chapter may be required to pay costs associated with the investigation and prosecution of the case in accordance with Section 40-1-170.
Section 40-58-180. (A) All costs and fines imposed pursuant to this chapter are due and payable immediately upon imposition or at the time indicated by final order of the board or department, as the case may be. Unless the costs and fines are paid within sixty days after the order becomes final, the order becomes a judgment and may be filed and executed upon in the same manner as a judgment in the court of common pleas, and the department may collect costs and attorneys' fees incurred in executing the judgment. Interest at the legal rate accrues on the amount due from the date imposed until the date paid.
(B) All fines and costs collected under this section must be remitted by the department to the State Treasurer and deposited in the general fund of the State.
Section 40-58-190. Communications made in connection with an investigation or hearing relevant to a complaint against a licensee are privileged as provided for in Section 40-1-190.
Section 40-58-200. An individual who practices or offers to practice as a mortgage loan broker in this State in violation of this chapter or a regulation promulgated under this chapter or who violates any other provision of this chapter or a regulation promulgated under this chapter is guilty of a misdemeanor and, upon conviction, must be fined not more than one thousand dollars or imprisoned for not more than six months, or both.
Section 40-58-210. In addition to initiating a criminal proceeding for a violation of this chapter, the department may seek injunctive relief pursuant to Section 40-1-210.
Section 40-58-215. No person or organization may offer or agree to offer loan brokerage services in this State without first depositing and continuously maintaining the amount of ten thousand dollars in cash or securities approved by the director or a bond in the amount of ten thousand dollars executed by a surety company authorized by the laws of this State to transact business within this State. The bond must be executed to the State of South Carolina and must be for the use of the State and for any consumers who may have a cause of action against the loan broker.
Section 40-58-220. (A) An application to become licensed as a mortgage loan broker must be complete, in writing, under oath, and in a form prescribed by the department. The application must be accompanied by the appropriate fee.
(B) An applicant must have at least two years of verifiable experience working as an originator under the supervision of a mortgage loan broker before his initial license is issued. In lieu of two years of experience, an applicant may submit proof of two years of employment with a federally insured depository institution, financial institution, or a VA, FHA, or HUD approved mortgagee during which the applicant was actively engaged in originating residential mortgage loans.
In lieu of one of the required years of experience, an applicant may submit proof of the equivalent of six or more semester hours of satisfactorily completed course work in real estate finance, real estate law, or related courses toward a baccalaureate or advanced degree with a major or minor in finance, accounting, business administration, real estate finance economics, or a similar degree from an accredited college or university approved by the department.
(C) The term of each license is two years. Licenses issued under this chapter expire on September thirtieth and must be renewed by the licensee whether or not notice is received. A license which has not been renewed by its date of expiration is lapsed and may be reinstated within six months following expiration upon payment of the license renewal fee and a reinstatement penalty of twenty-five dollars a month for each month or part of a month.
(D) A license which has lapsed and has not been reinstated by the last day of the sixth month following expiration is canceled as of that day.
(E) A license issued under this chapter is nontransferable.
Section 40-58-230. (A) A mortgage loan broker must maintain books, records, and documents pertaining to the broker's business which may be consolidated at any one of the broker's offices. These books, records, and documents must be available for examination by the director upon request, and must be maintained for three years.
(B) A mortgage loan broker shall maintain a place of business in this State open at least thirty hours a week, Monday through Friday, staffed by one or more employees.
(C) A mortgage loan broker may maintain one or more satellite offices and shall notify the department in writing, ten days before opening a satellite office. The broker shall maintain closed records from the satellite office in an office staffed in accordance with subsection (B). Records of any pending mortgage loan application or records in which a loan closing is still in process at a satellite must be made available to the director within two business days of a written request delivered by facsimile transmission, mail, or hand-delivery by the director. The broker shall notify the department in writing within two business days of closing a satellite office.
(D) If a person files a written complaint with the board or the director charging a broker with a violation of this chapter, the director must examine the books, records, and other documents maintained pursuant to this section to determine if the broker has substantially complied with this chapter. The director may examine the books, records, and other documents maintained pursuant to this section to determine if the broker has substantially complied with this chapter. Unless there is reason to believe a violation of this chapter has occurred, such examinations must be limited to one each year. Records and information obtained by the department during an examination are confidential, and the department must certify that it is in compliance with the Right to Financial Privacy Act.
(E) If the mortgage loan broker fails to notify the department of the existence or closing of a satellite office or the whereabouts of its records, the broker is subject to a penalty of not less than fifty dollars and not more than two hundred fifty dollars. If after the assessment of such a fine within a one-year period, the director finds that additional violations of this section are both intentional and repeated, the mortgage loan broker is subject to penalties for violations of this chapter set forth in Section 40-58-120.
(F) In addition to the powers conferred upon the director pursuant to the provisions of this chapter, the director or his appointed designee within the department shall examine, on an unannounced basis, not less frequently than every two years the books, records, and other documents maintained pursuant to this section to determine if the broker has substantially complied with this chapter.
Section 40-58-240. (A) As a condition of license renewal an individual licensed as a mortgage loan broker must complete at least sixteen hours of continuing professional education biennially. (B) Upon license renewal a licensee must certify that he has completed the required hours of continuing professional education. The licensee shall maintain copies of continuing professional education certificates of completion issued pursuant to subsection (C) which are subject to audit by the department. Up to eight hours of continuing professional education may be carried forward from one renewal period to the next.
(C) A course teacher or sponsor, including teachers or sponsors of correspondence courses, must issue an attendee a certificate of completion showing the completed number of hours of continuing professional education. If the course is taught in a classroom setting fifty minutes of classroom contact equal one hour of continuing professional education. Course sponsors shall maintain records of attendance for two years. For a course to qualify for continuing professional education hours it must be offered by the National Association of Mortgage Brokers or the South Carolina Mortgage Brokers Association, or it must be preapproved by the department pursuant to policies and procedures promulgated by the department in regulation and related to real estate law or related law topics, appraisals, mortgage lending, financial management, financial planning, or mortgage processing.
Section 40-58-250. (A) Within three business days of the receipt of an application for a loan, the broker must disclose in a statement the total estimated charges to the borrower for the loan and an itemization of the charges provided if required under RESPA. The disclosure is considered delivered when deposited with the United States Postal Service for first-class delivery.
(B) All fees earned for services rendered as a mortgage broker must be disclosed to the applicant by the mortgage broker as required by RESPA.
Section 40-58-260. Nothing in this chapter limits a statutory or common law right of a person to bring an action in a court for an act or the right of the State to punish a person for a violation of a law.
Section 40-58-270. If a provision of this chapter or the application of a provision to a person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are severable."
SECTION 2. Of the initial appointments to the South Carolina Mortgage Loan Brokers Board, provided for in Section 40-58-10 of the 1976 Code, as amended in Section 1 of this Act, the Governor shall designate two members to serve terms of four years, two members to serve terms of three years, and two members to serve terms of two years. Subsequently appointed members shall serve terms of four years, as provided for in Section 40-58-10.
SECTION 3. This act takes effect July 1, 2001.
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