NMLS: MLO Registration to Commence

In its first Financial Institution Letter of the year, the FDIC issued on January 4, 2011 its issuance FIL-1-2011 in which the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System,, the Federal Deposit Insurance Corporation, the Office of Thrift Supervision, the Farm Credit Administration, and the National Credit Union Administration, (collectively, Agencies) announced that they expect the system for federal registration of residential mortgage loan originators (MLOs) to begin operation on or around January 31, 2011.

The Agencies' rules implementing the SAFE Act require MLOs to register with the Nationwide Mortgage Licensing System and Registry (Registry) within 180 days of the date the Registry begins accepting federal registrations. The Agencies will confirm the opening date for federal registration closer to the actual date and will publish notice of that date in the Federal Register.

On July 28, 2010, the Agencies announced the Federal Register publication of rules implementing the SAFE Act through this joint press release.

In any event, the federal bank and thrift regulatory agencies have said that they expect to be ready to accept residential mortgage loan originator registrations by about January 31, 2011.

Under the Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (S.A.F.E. Act), loan originators must register with the Nationwide Mortgage Licensing System and Registry within 180 days of the date the Registry announces it can accept registrations. A precise date will be published in the Federal Register when it is determined, the agencies said.

A loan originator that does not register within the 180-day period will be prohibited from originating residential mortgage loans until it has completed its registration. There will be an exception for those who originated no more than five loans during the previous 12 months.

Rules adopted jointly by the agencies establish the registration requirements for loan originators employed by agency-regulated institutions and set the requirements for these institutions, which include the adoption of policies and procedures to ensure compliance with the S.A.F.E. Act and final rules.

The rules also require that each loan originator obtain a unique identifier through the Registry that will remain with that loan originator, regardless of changes in employment. This is intended to give consumers access to employment and other background information about loan originators. Registered mortgage loan originators and agency-regulated institutions will be required to provide these unique identifiers to consumers.

Compliance Effective: On or around January 31, 2011

OUTLINE OF MLO REGISTRATION TIMEFRAME

• The press release states that advance notice would be provided for the date the Registry would begin accepting federal registrations: the Agencies currently expect federal registration to begin on January 31, 2011.

• MLOs employed by Agency-regulated institutions will have 180 days from the date on which the Registry begins accepting federal registrations to complete initial registration. At present, the Agencies expect the initial registration period to expire on July 29, 2011.

• After the initial registration period expires, MLOs will be prohibited from originating residential mortgage loans until they successfully complete the federal registration process.

• The Agencies' rules provide a de minimis exception whereby MLOs that originated 5 or fewer mortgage loans during the previous 12 months are not required to complete the federal registration process.

• The Agencies will confirm the actual registration start date before the initial registration period begins and publish an announcement in the Federal Register.

Visit Library for Issuance SAFE Act - Update: Registration of Residential Mortgage Loan Originators, FIL-1-2011 January 4, 2011

Florida Reverses Requirement to License Mortgage Loan Underwriters

Licensing Obligations for Individuals Acting as In-House Underwriters

The Office of Financial Regulation (OFR) has changed its licensing requirements: earlier this year the OFR passed a mandate that mortgage processors and underwriters must become licensed as loan originators. This requirement has been reversed, because "underwriters did not clearly fit [the] description" of a "loan originator."

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On August 17, 2010, the OFR provided a legal opinion (Opinion), issued by Jenny S. Kim, the OFR's Assistant General Counsel, which gave the following clarification to substantially the following question:

Whether individuals employed by Florida-licensed mortgage lenders who exclusively conduct underwriting activities for their employer will be required to be licensed as "mortgage loan originators" on October 1, 2010?

According to the Opinion, effective October 1, 2010, the definition of "loan originator" means:

[A]n individual who, directly or indirectly, solicits or offers to solicit a mortgage loan, accepts or offers to accept an application for a mortgage loan, negotiates or offers to negotiate the terms or conditions of a new or existing mortgage loan on behalf of a borrower or lender, processes a mortgage loan application, or negotiates or offers to negotiate the sale of an existing mortgage loan to a non-institutional investor for compensation or gain. The term includes the activities of a loan originator as that term is defined in the S.A.F.E. Mortgage Licensing Act of 2008, and an individual acting as a loan originator pursuant to that definition is acting as a loan originator for purposes of this definition. The term does not include an employee of a mortgage broker or mortgage lender who performs only administrative or clerical tasks, including quoting available interest rates, physically handling a completed application form, or transmitting a completed form to a lender on behalf of a prospective borrower. [Section 494.001(14), Fla. Stat. - Emphasis Added]

The Opinion indicates that the Florida definition of "loan originator," does not explicitly include underwriting. Section 1503(4) of the S.A.F.E. Act, however, provides that an underwriter "means an individual who performs clerical or support duties at the direction of and subject to the supervision and instruction of (i) a State-licensed loan originator; or (ii) a registered loan originator." Section 1504(b) of the S.A.F.E. Act further states that "supervised" underwriters (who do not represent to the public that they perform loan origination activities) are not required to obtain loan originator licenses, while independent contractors "may not engage in residential mortgage loan origination activities as a[n]...underwriter unless such independent contractor is a State-licensed loan originator."

Opinion's Interpretative Conclusions

• Underwriters who are W-2 employees of licensed mortgage lenders are not required to obtain loan originator licenses with the OFR.

• If underwriters intend to underwrite exclusively for one employer, they would not be subject to HB 1281's requirement that "loan processors" file declarations of intent to engage solely in loan processing in order to contract with multiple mortgage brokers or mortgage lenders.

Finally the Opinion states that in-house underwriters who work for a licensed lender must be supervised by a licensed loan originator in order to comply with the S.A.F.E. Act and Chapter 494, Florida Statutes.

Our Advice & Summary

Effective October 1, 2010

• The licensing requirement can be properly effectuated in compliance with both the S.A.F.E. Act and Chapter 494, Florida Statutes by assuring that the originating entity's underwriting manager is licensed, though the underwriters subordinate to the underwriting manager do not need to be licensed.

• Florida-licensed loan originators who solely act as a loan processor will be permitted to contract with one or more mortgage brokers and/or mortgage lenders, simultaneously. This correction will permit licensed loan originators who work for companies that exclusively perform processing services to process mortgage loans for more than one entity.

• The term "loan processor" will be defined as an individual who is licensed as a loan originator and who only engages in:

1. "the receipt, collection, distribution, and analysis of information common for the processing or underwriting of a residential mortgage loan"; or

2. "communication with consumers to obtain the information necessary for the processing or underwriting of a loan, to the extent that such communication does not include offering or negotiating loan rates or terms or does not include counseling consumers about residential mortgage loan rates or terms."

• In order to act as a "loan processor," an individual licensed as a loan originator will provide the OFR with a declaration of intent to engage solely in loan processing activities. The OFR will provide a new form so individuals can declare their intent to engage exclusively in loan processing activities.

For questions about this matter or assistance with mortgage compliance, please contact Jonathan Foxx, Managing Director.

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Licensing Obligations for Individuals
Acting as In-House Underwriters
Florida - Office of Finance Regulation
August 17, 2010

Lenders Compliance Group is the first full-service, mortgage risk management firm in the country, specializing exclusively in mortgage compliance and offering a full suite of hands-on and automated services in residential mortgage banking.

Mortgage Call Reports – Coming Soon!

Overview

On March 15, 2010, on behalf of the state regulatory agencies participating in the Nationwide Mortgage Licensing System and Registry (NMLSR), the State Regulatory Registry invited public comments on the proposed implementation of a NMLS Mortgage Call Report (Report), which is intended to replace and standardize annual reports required by state regulators, provide necessary information to supervise state mortgage licensees, and fulfill the requirements of the Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (SAFE Act).

The comment period closed on Friday, May 14, 2010. Notwithstanding that deadline, the NMLSR was accepting comments in response to the proposal as late as May 28, 2010.

Since June 2009, a working group of state regulators have been developing the Report and accompanying policies. When implemented, the Report will institute significant obligations for large and small mortgage company licensees, requiring them to report a far more extensive set of mortgage loan activity and financial information, in a more detailed manner, and more frequently, than any state has ever required such mortgage activity and financial information to be reported by a licensee.

The legal authority is claimed under the SAFE Act itself. State regulators use the SAFE Act for their authority to impose on licensees the information gathering requirements of a Mortgage Call Report. That is, the SAFE Act is intended to provide for the (1) registration of the loan originator employees of institutions regulated by the federal banking agencies, and (2) licensing of loan originators who are employees of state-licensed mortgage companies.

Section 1505 of the SAFE Act (12 U.S.C. 5104) sets forth the requirements that must be met for an individual to be a state-licensed loan originator. Subsection (e) of Section 1505 of the SAFE Act (12 U.S.C. 5104(e)) states:

"MORTGAGE CALL REPORTS -- Each mortgage licensee shall submit to the National Mortgage Licensing System and Registry reports of condition, which shall be in such form and shall contain such information as the Nationwide Mortgage Licensing System and Registry may require."

This provision is worded broadly. The SAFE Act does not otherwise address the Mortgage Call Reports. State regulators have concluded that because the term mortgage licensee,as used only in this section of the SAFE Act, is undefined, and appears to be distinct from the term loan originator (which is actually defined in12 USCA 5102), and because the phrase "reports of condition" is a phrase drawn from banking supervision of federally insured depository institutions, the Mortgage Call Report must be a statement of condition on the company that employs licensed mortgage loan originators and its operations (including financial statements and production activity volumes reported per state).

Many industry representatives believe that since the Mortgage Call Report provision requires each mortgage licensee to submit reports of condition to the NMLSR, and as the NMLSR is limited licensing or registering loan originators, the reference to a "mortgage licensee" in the Mortgage Call Report provision is intended to mean only licensed loan originators.

In other words, there is no statutory basis under the SAFE Act to extend the Mortgage Call Report provision to requiring each mortgage company to submit a quarterly financial statement and a quarterly report to each state on its mortgage activity in the state. A state regulator may already have or seek authority under its state law to require licensees to submit quarterly financial statements and loan activity reports, but the authority itself does not exist under the SAFE Act.

The upshot, from the industry's perspective, is that a Mortgage Call Report will impose significant operational and financial obstacles.
For instance the National Association of Mortgage Brokers (NAMB) believes there are "several legal flaws" in the proposal; and, it is also concerned about the burden of such reporting on small business mortgage companies, and places an "unacceptable financial burden" on small businesses.

If you have any questions about this NMLS requirement or would like assistance with mortgage compliance, please contact Jonathan Foxx, Managing Director or call 516-442-3456 x 100.

Highlights

Configuration

• Quarterly report of condition
• Submitted through NMLS by an entity with at least one licensed mortgage loan originator
• Consists of two parts:

1. Part I: Residential Mortgage Loan Activity Report, by state.

2. Part II: Financial Condition Report for the entity

Policies

• Executed by the company holding more than one license type in a jurisdiction is only required to submit one NMLS Mortgage Call.

• Report for that jurisdiction. A company licensed in multiple states will complete a separate Residential Mortgage Loan Activity Report for each state in which they are licensed.

• Companies not licensed in a state but employing state-licensed mortgage loan originators are afforded the opportunity by the state regulator to create a record in NMLS and submit the record to the state through NMLS.

• Companies with one or more licenses in any "Approved" status will be required to file the NMLS Mortgage Call Report on a quarterly basis.

• Failure to submit the report within 45 days of the end of the quarter will result in a "deficiency" placed on licenses or registrations held by the company and may result in a state regulatory action. Such deficiencies will prevent license or registration renewal.

• Mortgage Call Report financial information must be reflective of the licensee's mortgage activities. Consolidated financial information will not be acceptable. Financial information should be reported on a Year-To-Date (YTD) basis.

• Companies that, under state laws or regulations, are required to submit a self-prepared financial statement on an annual basis as part of maintaining a license or registration may use the Mortgage Call Report to meet this requirement.

• Companies that are required to submit a Compiled, Reviewed or Audited financial statement must complete and submit such financial statements through NMLS in addition to the Mortgage Call Report.

• Companies must submit quarterly residential mortgage loan activity data that reflects the company's operations within a state for each state in which they are licensed or registered through NMLS. All mortgage origination activity of their licensed mortgage loan originators must be included on the Mortgage Call Report. Activity is to be reported on a Year-To-Date (YTD) basis.

• All company filings are confidential and will not be made public by NMLS, but will be available to state mortgage regulators under the system's information sharing architecture.

• State, regional and national aggregated data is considered public information and may be made available by NMLS or state regulators.

• The Mortgage Call Report is a "uniform form" that will be used by all companies, regardless of a company's organizational structure and activities. Companies will only be required to complete sections and questions that are relevant to the company's activities and/or authorities

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NMLS Mortgage Call Report - Request for Public Comments
March 15, 2010