TITLE 7.BANKING AND SECURITIES

Part 4. TEXAS SAVINGS AND LOAN DEPARTMENT

Chapter 80. MORTGAGE BROKER AND LOAN OFFICER LICENSING

Subchapter B. PROFESSIONAL CONDUCT

7 TAC §80.10

The Finance Commission of Texas (the "Finance Commission") adopts an amendment to 7 TAC §80.10 of the regulations (the "Regulations") that implement the Mortgage Broker License Act, Finance Code , chapter 156, (the "Act") with changes to the text as published in the August 30, 2002, issue of the Texas Register (27 TexReg 8095). The amended section re-titles the rule as "Prohibitions on false, misleading, or deceptive practices and improper dealings", restructures the current text of this section as Subsection 80.10(a), and adopts text in Subsection 80.10(b).

Background and Summary of Factual Basis for the Rule

Section 156.303(a)(3) of the Act prohibits licensed mortgage brokers and loan officers from engaging in improper dealings while performing acts that require a license. Since there is no definition of improper dealings in the Act, the purpose of Subsection 80.10(b) is to clarify the meaning of this term.

Subsection 80.10(b) provides that improper dealings includes, but is not limited to, three types of misconduct. The first type is negligence or incompetence in performing the act of a mortgage broker or loan officer. The second type is violating any provision of a federal, State of Texas, or local law, including a final court decision, which governs the same subject matter that is governed by the Act or by Texas Administrative Code, Title 7, Part IV, chapter 80. The third type is violating any provision of seven laws listed, which consist of the Real Estate Settlement Procedures Act, Regulation X, Truth in Lending Act, Regulation Z, Equal Credit Opportunity Act, Regulation B, and Article XVI, Section 50 of the Texas Constitution, as well as their successor statutes and provisions.

With respect to the incorporation by reference of the federal statutes and regulations listed in Subsection 80.10(b)(3), the Texas Savings and Loan Department (the department) would note that these statutes and regulations have long established a national standard for the origination of residential mortgage loans. Consequently, the department believes that a Texas-licensed mortgage broker or loan officer who originates a loan in violation of these standards would be engaging in conduct that constitutes "improper dealings" within the meaning of Section 156.303(a)(3) of the Act.

The effect of Subsection 80.10(b) would be to make a licensee’s negligence, incompetence, or violation of the provisions of any other law that governs Texas mortgage broker activity a violation of Section 156.303(a)(3) of the Act and grounds for disciplinary action against the licensee.

The amendment was reviewed with the Mortgage Broker Advisory Committee on August 6, 2002, and with the Finance Commission on August 16, 2002. The Finance Commission approved the proposed amendment to the Regulations for publication for public comment, and it was published in the August 30, 2002, issue of the Texas Register .

No written comments were received. However, the department has received oral comments from two commenters which have resulted in two changes being made to the text of subsection 80.10(b) as it was originally proposed.

First, the Mortgage Broker Advisory Committee reviewed the proposed amendment again on October 9, 2002, and one of the Committee members suggested that the term "state" in Subsection 80.10(b)(2) of the proposed amendment be changed to "State of Texas" in order to clarify that other states’ laws would not be included within the scope of subsection 80.10(b)(2). The department believes that this change further clarifies the original intent of the rule and, having no objection to it, has made this change in the proposed amendment of Section 80.8 of the Regulations.

Additionally, a commenter noted at the regular meeting of the Finance Commission on October 18, 2002, when the Finance Commission was considering the adoption of the proposed amendment of section 80.10, that the words "or incompetently" should be deleted from the text of proposed subsection 80.10(b)(1). The Texas Savings and Loan Commissioner and the Finance Commission agreed to this change at the meeting and the Finance Commission voted to adopt the proposed amendment of section 80.10 with these two changes.

The amendment is adopted under Finance Code , Section 11.306, which authorizes the Finance Commission to adopt mortgage broker rules as provided by chapter 156 of the Act, and under Finance Code , Section 156.102(a), which authorizes the Commissioner, subject to review and compliance with the directives of the Finance Commission, to adopt and enforce rules necessary for the intent of or to ensure compliance with the Act.

§80.10. Prohibition on false, misleading, or deceptive practices and improper dealings.

(a) No Mortgage Broker or Loan Officer may:

(1) knowingly misrepresent his or her relationship to a Mortgage Applicant or any other party to an actual or proposed Mortgage Loan transaction;

(2) knowingly misrepresent or understate any cost, fee, interest rate, or other expense in connection with a Mortgage Applicant's applying for or obtaining a Mortgage Loan;

(3) disparage any source or potential source of Mortgage Loan funds in a manner which knowingly disregards the truth or makes any knowing and material misstatement or omission;

(4) knowingly participate in or permit the submission of false or misleading information of a material nature to any person in connection with a decision by that person whether or not to make or acquire a Mortgage Loan.

(5) as provided for by the Real Estate Settlement Procedures Act and its implementing regulations, broker, arrange, or make a Mortgage Loan in which the Mortgage Broker or Loan Officer retains fees or receives other compensation for services which are not actually performed or where the fees or other compensation received bear no reasonable relationship to the value of services actually performed;

(6) recommend or encourage default or delinquency or continuation of an existing default or delinquency by a Mortgage Applicant on any existing indebtedness prior to closing a Mortgage Loan which refinances all or a portion of such existing indebtedness;

(7) induce or attempt to induce a party to a contract to breach the contract so the person may make a Mortgage; or

(8) engage in any other practice which the Commissioner, by published interpretation, has determined to be false, misleading, or deceptive.

(b) The term "improper dealings" in Section 156.303(a)(3) of the Act includes, but is not limited to, the following:

(1) Acting negligently in performing an act for which a person is required under the Act to hold a license;

(2) Violating any provision of a federal, State of Texas, or local constitution, statute, rule, ordinance, regulation, or final court decision that governs the same activity, transaction, or subject matter that is governed by the provisions of the Act or this Chapter; or

(3) Violating any provision of the following statutes, regulations, and constitutional provisions, or their successor statutes, regulations, and provisions:

(A) Real Estate Settlement Procedures Act, 12 U.S.C. Chapter 2600;

(B) Regulation X, 24 C.F.R. Part 3500;

(C) Consumer Credit Protection Act, 15 U.S.C. Chapter 1600 (Truth in Lending Act);

(D) Regulation Z, 12 C.F.R. Part 226;

(E) Equal Credit Opportunity Act, 15 U.S.C. §1691;

(F) Regulation B, 12 C.F.R. Part 202; and

(G) Section 50, Article XVI, Texas Constitution.

This agency hereby certifies that the adoption has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 28, 2002.

TRD-200207047

Michael Chisum

General Counsel

Texas Savings and Loan Department

Effective date: November 17, 2002

Proposal publication date: August 30, 2002

For further information, please call: (512) 475-1350