HBA-TYH S.B. 1074 76(R)    BILL ANALYSIS


Office of House Bill AnalysisS.B. 1074
By: Carona
Financial Institutions
4/26/1999
Engrossed



BACKGROUND AND PURPOSE 

Currently, a mortgage broker and a loan officer may operate in the state
without licensing.  This lack of regulation permits some brokers and
officers to arrange a client's financing without a sufficient background or
knowledge of the mortgage business.  As a result, some customers do not
receive quality representation from the mortgage industry.  S.B. 1074
requires the savings and loan commissioner to license mortgage brokers and
loan officers, creates a mortgage broker advisory committee, and provides
fines and penalties.  

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the savings and loan commissioner in
SECTION 2 (Sections 156.004, 156.102, 156.206, 156.208, and 156.210,
Finance Code) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Subchapter D, Chapter 11, Finance Code, by adding
Section 11.306, as follows: 

Sec. 11.306.  MORTGAGE BROKERS.  Authorizes the Finance Commission of Texas
(commission) to review any rule or action adopted by the savings and loan
commissioner (commissioner) under Chapter 156 (Mortgage Brokers), and to
direct the savings and loan commissioner to adopt, repeal, or amend any
rule or other action that the commissioner may take under Chapter 156. 

SECTION 2.  Amends Subtitle E, Title 3, Finance Code by adding Chapter 156,
as follows: 

CHAPTER 156.  MORTGAGE BROKERS

SUBCHAPTER A.  GENERAL PROVISIONS

Sec. 156.001. SHORT TITLE. Authorizes this chapter to be cited as the
Mortgage Broker License Act.  

Sec. 156.002.  DEFINITIONS.  Defines "commissioner," "disciplinary action,"
"finance commission," "fund," "loan officer," "loan processor," "mortgage
applicant," "mortgage banker," "mortgage broker," and "mortgage loan." 

Sec. 156.003.  SECONDARY MARKET TRANSACTIONS.  Provides that this chapter
does not prohibit a mortgage broker (broker) from receiving compensation
from certain parties. 

Sec. 156.004.  DISCLOSURE TO APPLICANT.  Requires the broker, at the time
an applicant submits an application to a broker, to provide to the
applicant a disclosure specifying the nature of the relationship between
applicant and broker.  Requires the commissioner, by rule, to promulgate a
standard disclosure form to be used by the broker. 

Sec. 156.005.  AFFILIATED BUSINESS ARRANGEMENTS.  Prohibits this chapter
from  being construed to prevent affiliated or controlled business
arrangements or loan origination services by or between brokers and other
professionals, if the broker complies with all applicable laws, unless
prohibited by federal law. 

SUBCHAPTER B.  ADMINISTRATION PROVISIONS

Sec. 156.101.  ADMINISTRATION OF CHAPTER.  Requires the commissioner to
administer this chapter.  Authorizes the commissioner to hire necessary
employees, including a general counsel, attorneys, investigators, and other
support staff to administer this chapter. Requires the salaries of the
staff to be set by the commissioner in amounts equal or less than the
amounts set by the General Appropriations Act. 

Sec. 156.102.  RULEMAKING AUTHORITY.  Authorizes the commissioner to adopt
and enforce rules necessary for the intent of or to ensure compliance with
this chapter, to adopt rules to prohibit false, misleading, or deceptive
practices by brokers and loan officers (officers), and to adopt rules
regarding books and records that a person must keep.  Prohibits the
commissioner from adopting specified rules to restrict competitive bidding
or advertising by brokers or officers.  Requires the commissioner to
consult with the mortgage broker advisory committee when proposing and
adopting rules. 

Sec. 156.103.  POWERS OF COMMISSIONER.  Authorizes the commissioner to
institute an action to enjoin a violation of this chapter or a rule adopted
under this chapter.  Provides that to sustain an action filed under this
subsection, it is not necessary to allege or prove that an adequate remedy
at law does not exist or that substantial or irreparable damage would
result from a continued violation.  Provides that the commissioner is not
required to provide an appeal bond in any action or proceeding to enforce
this chapter.  Authorizes the commissioner to authorize specific employees
to conduct hearings and make recommendations for final decisions in
contested cases.   

Sec. 156.104.  MORTGAGE BROKER ADVISORY COMMITTEE.  Creates the mortgage
broker advisory committee (committee).  Sets forth conditions for the
composition of the committee and the term of service by the members.
Requires appointments to the committee to be made without regard to the
sex, race, color, age, disability, religion, or national origin of the
appointees.  Requires the committee to meet at least twice per year at the
call of the commissioner.  Authorizes the commissioner to remove a
committee member under certain conditions.  Requires the commissioner to
fill an unexpired vacancy for the duration of the vacancy.  Sets forth the
advising duties of the committee.  Entitles each member to certain per diem
allowances and travel reimbursements.   

SUBCHAPTER C.  MORTGAGE BROKER LICENSE AND LOAN OFFICER LICENSE

Sec. 156.201.  LICENSES REQUIRED.  Prohibits an individual from acting as a
broker unless the individual holds an active broker license or is exempt
under Section 156.202. Prohibits an individual from acting as an officer
unless that individual is sponsored by a licensed broker, except under
certain conditions.  Provides that each broker is responsible to the
commissioner and members of the public for all acts and conduct performed
by the broker or officer associated with the broker.   

 Sec. 156.202  EXEMPTIONS.  Sets forth persons to whom this article does
not apply.   

Sec. 156.203.  APPLICATION FOR A LICENSE; FEES.  Requires applications to
be in writing, under oath, on a prescribed form, and accompanied by certain
fees depending on the license.  Provides that application fees are not
refundable.  

Sec. 156.204.  QUALIFICATIONS.  Provides that a person must meet the
specified qualifications to be eligible to be licensed as a broker.
Authorizes the broker to conduct business under a corporate structure,
partnership, or any other business form.  Provides that the broker must
notify the commissioner, in writing, of the name or any change in name
under which the broker conducts business activities.  Provides that for a
corporation, limited  liability company, or limited liability partnership
to be licensed as a broker, the corporation must designate an individual
who is a Texas resident to act for it and be responsible for managing the
operations of the location or locations where business is to be transacted.
Provides that the designated individual must be a licensed broker.
Requires the commissioner to require proof of compliance with this section
at the time of application or renewal for license.  Requires a person to
meet certain qualifications to be eligible to be licensed as an officer.   

Sec. 156.205.  FINANCIAL REQUIREMENTS FOR A MORTGAGE BROKER.  Defines "net
assets."  Provides that a broker must maintain net assets of at least
$25,000 or a surety bond in the amount of at least $50,000.  Requires the
bond term to coincide with the term of the current license period.
Requires the commissioner to require proof of compliance with this section
at the time of the application or renewal for a license. 

Sec. 156.206.  CRIMINAL BACKGROUND CHECK.  Requires the commissioner to
conduct a criminal background check upon receiving an application.
Requires the commissioner to obtain criminal history record information on
the applicant from the Department of Public Safety.  Authorizes the
commissioner, by rule, to require the applicant to submit information and
fingerprints to obtain background information from the Federal Bureau of
Investigation.  Authorizes the commissioner to obtain criminal history
information from any court or any local, state, or national governmental
agencies.  Requires the commissioner to keep the obtained criminal
background information confidential, and prohibits the commissioner from
disclosing the information except under certain circumstances. 

Sec. 156.207.  ISSUANCE OF LICENSE CERTIFICATE; PROVISIONAL LICENSE.
Requires the commissioner to issue a license certificate for a broker
license or officer license to an applicant who meets all the conditions for
application or to the sponsor of the loan officer.  Authorizes the
commissioner to issue a provisional license to an applicant who will
experience delay in processing the application.  Authorizes the
commissioner to revoke the license on specified grounds.   

Sec. 156.208.  RENEWALS.  Provides that the broker license and the officer
license are valid for two years and are authorized to be renewed if certain
conditions are met. Authorizes the commissioner to require brokers and
officers to submit requests for renewals on a prescribed form.  Authorizes
the commissioner to conduct a background check under Section 156.206 for a
license renewal.  Provides that a renewal fee is not refundable. Authorizes
the commissioner to adopt, by rule, a system for licenses expiring on a
date or dates other than December 31.  Sets forth methods for adjusting
expiration dates on licenses according to the rules set by the
commissioner. 

Sec. 156.209.  DENIAL OF APPLICATIONS AND RENEWALS.  Requires the
commissioner to promptly give written notice of a refusal to issue a
license to the applicant for the license or the renewing applicant.
Provides that before the applicant may appeal to a district court, the
applicant must file with the commissioner, within 10 days of receiving the
notice, an appeal of the ruling and request a time and place for hearing
before a hearings officer designated by the commissioner.  Requires the
hearings officer to set certain logistics for the hearing.  Authorizes a
continuance with the consent of the applicant.  Requires the commissioner,
after the hearing, to enter an order from the findings of fact, conclusions
of law, and recommendations of the hearings officer.  Provides that the
commissioner's ruling is final if the applicant does not appeal for a
hearing by a certain date.  Provides that a hearing is governed by Chapter
2001 (Administrative Procedure), Government Code. Authorizes an appeal of a
final order to be made in accordance with Section 156.401. 

Sec. 156.210.  PROBATIONARY LICENSE.  Authorizes the commissioner to issue
a probationary license.  Requires the commissioner to adopt, by rule, terms
and conditions for a probationary license. 

Sec. 156.211.  CHANGE OF ADDRESS OR SPONSORSHIP; MODIFICATION OF  LICENSE.
Requires a broker, before 10 days prior to the effective date of the new
address, to notify the commissioner in writing of the new address
accompanied by a $25 fee. Provides that the broker must obtain a new
license certificate before conducting business at the new location.
Authorizes a loan officer to act only for the sponsoring mortgage broker.
Authorizes the officer to be sponsored only by one broker at a time.
Requires the officer and the broker to notify the commissioner that the
association is terminated, and requires the broker to return the officer's
license to the commissioner.  Provides that the officer's license then
becomes inactive.  Authorizes the license to be reactivated if a broker
files a request with a $25 fee notifying the commissioner of the new
association and the broker's responsibility for the actions of the loan
officer, before the license expires.  Provides that the fee is
nonrefundable. 

Sec. 156.212.  MAINTENANCE AND LOCATION OF OFFICES; DISPLAY OF LICENSE
CERTIFICATES.    Requires each licensed broker to maintain a physical
office in the state. Requires the address of the office to be designated on
the license.  Requires a broker to apply for additional branch office
licenses, one for each additional site, if the broker maintains more than
one place of business.  Requires the broker's license, branch office
license, and loan officer's license to be prominently displayed in the
place of business.   

SUBCHAPTER D.  LICENSE REVOCATION AND SUSPENSION AND 
OTHER ACTIONS AGAINST LICENSE HOLDER

Sec. 156.301.  COMPLAINTS AND INVESTIGATIONS.  Requires the commissioner to
investigate certain actions of a person licensed under this chapter, if a
person submits a signed written complaint. Requires the commissioner to
send the broker or office a notice of the complaint and the commissioner's
intention to investigate, before commencing the investigation.  Prohibits
the commissioner from investigating or initiating other actions on the
basis of an anonymous complaint.  Authorizes the commissioner to conduct an
undercover or covert investigation when necessary.  Permits the
commissioner to authorize an employee of the commissioner to file a
complaint against a licensee and to conduct certain investigations if
specified conditions exist.   

Sec. 156.302.  ADMINISTRATIVE PENALTY.  Authorizes the commissioner to
impose an administrative penalty on a licensed person who violates this
chapter.  Prohibits the amount of the penalty from exceeding $2,500.
Authorizes certain continuous violations to be considered separate
offenses.  Requires the penalty amount to be based on the specified
guidelines.  Authorizes the enforcement to be stayed during a judicial
review, if the person pays the penalty to the clerk or files a supersedeas
bond.  Authorizes a person unable to pay the bond to stay the enforcement
by filing an affidavit in the specified manner. Authorizes the attorney
general to sue to collect the penalty.  Provides that a proceeding to
impose the penalty is considered a contested case under Chapter 2001,
Government Code. 

Sec. 156.303.  DISCIPLINARY ACTION; CEASE AND DESIST ORDER.  (a)
Authorizes the commissioner to order disciplinary action against a licensed
broker or licensed officer, if the commissioner makes certain
determinations about the broker or officer.   

(b)  Authorizes the commissioner, if the commissioner has reasonable cause
to believe that a person licensed under this chapter has or is about to
violate this section, to issue an order without notice and hearing to cease
and desist from an action that is a violation of this section.   

(c)  Provides that an order must contain a reasonably detailed statement of
the facts on which the order is made.  Requires the commissioner to give
and set notice of a hearing governed by Chapter 2001, Government Code, if
the person requests the hearing. Authorizes the commissioner by order to
find a violation has occurred or not occurred.  
(d)  Provides that if a hearing is not requested within 30 days of the date
on which an order is made, the order is considered final and not
appealable. 

 (e)  Authorizes the commissioner, after giving notice, to impose against a
person who violates a cease and desist order an administrative penalty not
to exceed $1,000 for each day of violation.  Authorizes the commissioner to
institute an injunctive relief and collect the administrative penalty.
Provides that bond is not required with respect to the injunctive relief.
Requires the penalty to be deposited in the mortgage broker recovery fund
(fund) established in Section 156.501.   

Sec. 156.304.  FEE ASSESSMENT AND DISCLOSURE.  Authorizes the broker,
before the completion of all services to be performed, to charge and
receive certain fees for services in assisting a mortgage applicant to
obtain a mortgage.  Prohibits the broker or officer from charging and
receiving certain fees for locking in an interest rate unless under the
specified circumstances.   

SUBCHAPTER E.  HEARINGS; JUDICIAL REVIEW; CIVIL 
ACTIONS; UNLICENSED ACTIVITY

Sec. 156.401.  HEARINGS AND JUDICIAL REVIEW.  Authorizes the commissioner
to employ an enforcement staff to investigate and prosecute complaints made
against persons licensed under this chapter.  Authorizes a commissioner to
employ a hearings officer to conduct hearings under this section.  Entitles
a person who was denied a license or renewal license or had a license
revoked to a hearing before the commissioner or a hearings officer.
Requires the commissioner or hearings officer to prescribe the time and
place of the hearing, which is governed by Chapter 2001, Government Code.
Authorizes the commissioner or the hearings officer to issue subpoenas for
the hearing.  Authorizes the process issued by the commissioner or the
hearing officer to extend throughout the state and to be served by any
designated person.   Grants to an individual aggrieved by the results of
the hearing the right to appeal to a district court in the county of the
hearing.  Subjects the appeal to Chapter 2001, Government Code. 

Sec. 156.402.  CIVIL ACTIONS AND INJUNCTIVE RELIEF.  Authorizes a mortgage
applicant injured by a violation in this article to bring action for
recovery of actual monetary damages and reasonable attorney's fees and
court costs.  Authorizes the commissioner, the attorney general, or a
mortgage applicant to bring an action to enjoin a violation of this
article.  Provides that a remedy of this article is in addition to any
other remedy of law.   

Sec. 156.403.  BURDEN OF PROOF TO ESTABLISH AN EXEMPTION.  Provides that
the person claiming an exemption has the burden of proving the exemption in
a proceeding or action brought under this chapter.   

Sec. 156.404.  RELIANCE ON WRITTEN NOTICES FROM COMMISSIONER.  Provides
that a person does not violate, with respect to an action taken or omission
mae in reliance on a written notice, written interpretation, or written
report from the commissioner, unless there is a subsequent amendment.   

Sec. 156.405.  COMPLETION OF MORTGAGE BROKER SERVICES.  Provides that the
broker and officer that assisted a mortgage applicant obtain a mortgage
loan are considered to have completed the broker's and officer's services
for the applicant and owes no additional duties or obligations to the
applicant with respect to the loan, upon disbursement of mortgage proceeds
to or on behalf of the mortgage applicant.  Provides that this section does
not limit or preclude the liability of the broker or officer for certain
failures and violations by the broker or officer.  

Sec. 156.406.  UNLICENSED ACTIVITY.  (a)  Provides that a person who acts
as a broker or officer without first obtaining the required license commits
a Class B misdemeanor, except that a repeated offense is a Class A
misdemeanor.   

(b)  Provides that an individual violating this chapter is liable for
damages in an amount that is not less than the amount of the fee or profit
received and not to exceed three times the amount of the fee or profit
received. Authorizes an aggrieved person to recover  damages in a court.   

(c)  Authorizes the commissioner, if the commissioner has reasonable cause
to believe that a person licensed under this chapter has or is about to
violate this chapter, to issue an order without notice and hearing to cease
and desist from an action that is a violation of this section.  Requires an
order to contain a reasonably detailed statement of the facts on which the
order is made.  Requires the commissioner to give and set notice of a
hearing governed by Chapter 2001, Government Code, if the person requests
the hearing. Authorizes the commissioner by order to find a violation has
occurred or not occurred.  
(d)  Provides that if a hearing is not requested within 30 days of the date
on which an order is made, the order is considered final and not
appealable.  Authorizes the commissioner, after giving notice, to impose
against a person who violates a cease and desist order an administrative
penalty not to exceed $1,000 for each day of violation. Authorizes the
commissioner to institute an injunctive relief and collect the
administrative penalty.  Provides that bond is not required with respect to
the injunctive relief.  Requires the penalty to be deposited in the fund. 

SUBCHAPTER F.  MORTGAGE BROKER RECOVERY FUND

Sec. 156. 501.  MORTGAGE BROKER RECOVERY FUND.  Requires the commissioner
to establish and maintain a mortgage broker recovery fund.  Requires the
deposits to be held in trust for carrying out the purposes of the fund.
Requires the fund to be issued to benefit aggrieved individuals who suffer
actual damages by certain acts committed by a person who was a licensed
broker or officer.  Authorizes the fund to be invested and reinvested as
funds of the Employees Retirement System of Texas are invested, and the
interest is required to be deposited in the fund.  Prohibits the
investments from being made if it will impair liquidity for a judgment
under this section.   

Sec. 156.502.  FUNDING.  Requires the applicant to pay, in addition to
paying the original application fee, a renewal fee of $20 to be deposited
in the fund.  Requires an additional fee of $10, or a pro rata share needed
to bring the fund to $1 million, to be paid on the next renewal of a
license, if the fund is less than $500,000 at the end of the year 2010.
Requires the additional fee to be deposited in the fund.  Requires a
balance in the fund in excess of $3.5 million or the total amount of claims
paid from the fund during the preceding four years, whichever is greater,
to be transferred to the general revenue fund.  

Sec. 156.503.  STATUTE OF LIMITATIONS. Prohibits an action for a judgment
that subsequently results in an order for collection from the fund form
being instituted after the second anniversary of the date on which the
cause of action accrues.   

Sec. 156.504.  PROCEDURE FOR RECOVERY.  Authorizes an aggrieved person to
file a verified claim in a court granting a judgment and to apply to the
court for an order directing payment from the fund, subject to Section
156.503.  Provides that on the hearing on the application, the aggrieved
person is required to show certain facts and meet other criteria. Requires
a recovery on the judgment against a single defendant made before payment
from the fund  to be applied first by the creditor to actual damages.
Requires the court to order the commissioner to make a payment the court
deemed suitable from the fund, if the court is satisfied that the required
criteria were met.  Authorizes the commissioner to notify the attorney
general of the commissioner's desire to conduct specified legal activities.
Requires the commissioner and attorney general to act only to protect the
fund from spurious or unjust claims or to ensure compliance with the
requirements for recovery.  Authorizes the commissioner to relitigate any
issue material and relevant in the hearing. Requires the court to reduce
proportionately the aggregate amount that the court finds payable on the
claim against a licensed broker or officer, if the amount exceeds the
limitations.   

Sec. 156.505.  RECOVERY LIMITS.  Entitles a person who receives payment out
of the fund to reasonable attorney's fees and other costs, subject to
limitations.  Authorizes a payment only pursuant to a court order and only
for the specified payments.   
 
Sec. 156.506.  REVOCATION OF LICENSE FOR PAYMENT FROM FUND.  Authorizes the
commissioner to revoke the license of a broker or officer on proof that a
payment was made from the fund to satisfy a judgment against the licensee.
Authorizes the commissioner to probate an order revoking a license.
Provides that no person whose account payment was made from the fund is
eligible to receive a new license under this article, until the amount is
repaid in full, plus interest at the current legal rate.  Provides that
this section does not limit the commissioner's authority to take
disciplinary action against the broker or officer for violation of this
article or a rule of the commissioner.  Provides that repayment by the
broker or officer does not nullify or modify the effect of any other
disciplinary proceeding under this article.  

Sec. 156.507.  SUBROGATION.  Provides that when the commissioner has paid a
judgment creditor an amount from the fund as directed by the court, the
commissioner is subrogated to all rights of the judgment creditor to the
extent of the paid amount.  Requires the judgment creditor to assign all of
the creditor's right, title, and interest in the judgment to the amount
paid by the commissioner, and that amount has priority for repayment from
any subsequent recovery.  Requires any amount and interest recovered by the
commissioner to be deposited to the fund.   

Sec. 156.508.  FAILURE TO COMPLY WITH SUBCHAPTER.  Provides that an
aggrieved person's  failure to comply with this subchapter constitutes a
waiver of any rights under this subchapter.  

SECTION 3.  Amends Section 393.002(a), Finance Code, to provide that this
chapter (Credit Services Organizations) does not apply to a mortgage broker
or loan officer licensed under Chapter 156, Finance Code, who is acting
within the course and scope of that license. 

SECTION 4.   Amends Section 232.002, Family Code, to provide that the Texas
Board of Professional Engineers, rather than State Board of Registration
for Professional Engineers, and the savings and loan commissioner are
licensing authorities subject to this chapter (Suspension of License for
Failure to Pay Child Support or Comply with Subpoena).  Deletes reference
to state agencies.  Makes a conforming change. 

SECTION 5.Effective date: September 1, 1999.
Provides that a person is not required to be licensed under Chapter 156,
Finance Code, as added by this Act, before January 1, 2000. 

SECTION 6.Emergency clause.