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The Oregon Administrative Rules contain OARs filed through August 15, 2014
 
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DEPARTMENT OF CONSUMER AND BUSINESS SERVICES,
DIVISION OF FINANCE AND CORPORATE SECURITIES

 

DIVISION 850

MORTGAGE LENDING GENERAL PROVISIONS

441-850-0005

Definitions

As used in OAR chapter 441, divisions 850 to 885, unless the context otherwise requires:

(1) “Advertising” means any distribution of information regarding loan products by or in the name of a mortgage banker or mortgage broker to members of the public, which may appear:

(a) In newspapers, magazines, leaflets, flyers, catalogs, direct mail literature, or other printed material;

(b) On radio or television;

(c) On an inside or outside sign or display, or a window display;

(d) In a facsimile;

(e) In point-of-sale literature, price tags, signs, and billboards; or

(f) Online, such as on the Internet, or via email.

(2) “At least as prominently disclosing” means displaying in the same or most similar type, size, font, color, and general location in the advertisement as the featured term.

(3) “Branch office” means a location, separate from the principal place of business of a mortgage banker or mortgage broker, where a mortgage banker, mortgage broker or mortgage loan originator performs the activities described in ORS 86A.100(3)(a) and 86A.100(5)(a).

(4) “Clients’ Trust Account” means an account held in a federally-insured financial institution into which trust funds are deposited.

(5) “Compensation or gain” means anything of economic value that is paid, loaned, granted, given, donated, or transferred to a person or entity for or inconsideration of services, personal or real property, or another thing of value.

(6) “Control person” means a managing partner, director, principal, executive officer or other person occupying a similar position or performing similar functions for a person licensed as a mortgage banker or a mortgage broker.

(7) "Director" means the Director of the Department of Consumer and Business Services.

(8) “Deficiency” means information contained in the application for a mortgage banker, mortgage broker, or mortgage loan originator license that is inaccurate, incomplete or otherwise not in conformance with applicable law, policy or provisions of the NMLS Policy Guidebook.

(9) "Department" means the Department of Consumer and Business Services.

(10) “Employee” means any employment relationship, acknowledged by both the employed individual and the mortgage banker or mortgage broker, which meets the following conditions:

(a) The employee receives payment through the mortgage banker or mortgage broker in a manner wherein deductions for federal unemployment taxes, Federal Insurance Contributions Act taxes, and other such federal and state taxes have been withheld by the mortgage banker or mortgage broker;

(b) The mortgage banker or mortgage broker has the right to hire and terminate the employee, and hire and terminate the employee's assistants;

(c) The mortgage banker or mortgage broker provides the methods and procedures for performing the employee's services;

(d) The mortgage banker or mortgage broker supervises the employee in the conduct of the employed individual's business and supervises the employee's compliance with applicable statute and rules; and

(e) The employee does not act in any capacity as an employee or independent contractor for another mortgage banker or mortgage broker.

(11) “Experienced person” means the control person that possesses the required experience under ORS 86A.106 in the mortgage business, negotiating loans, or in lending.

(12) “Financial institution” has the same meaning given to that term in ORS 706.008.

(13) “Form MU1” means the Uniform Mortgage Lender/Mortgage Broker Form, published by the Conference of State Bank Supervisors on April x, 2012, and available at http://mortgage.nationwidelicensingsystem.org/slr/common/policy/Pages/default.aspx.

(14) “Form MU2” means the Uniform Mortgage Biographical Statement & Consent Form, published by the Conference of State Bank Supervisors on April x, 2012, and available at http://mortgage.nationwidelicensingsystem.org/slr/common/policy/Pages/default.aspx.

(15) “Form MU3” means the Uniform Mortgage Branch Office Form, published by the Conference of State Bank Supervisors on April x, 2012, and available at http://mortgage.nationwidelicensingsystem.org/slr/common/policy/Pages/default.aspx.

(16) “Form MU4” means the Uniform Individual Mortgage License/Registration & Consent Form, published by the Conference of State Bank Supervisors on April x, 2012, and available at http://mortgage.nationwidelicensingsystem.org/slr/common/policy/Pages/default.aspx.

(17) “Independent accountant” means a certified public accountant or a public accountant who holds an Oregon permit under ORS 673.150 or similar permit or license from another state or province.

(18) “Mortgage loan originator employed by the mortgage banker or mortgage broker” means every mortgage loan originator operating under the authority of a mortgage banker or mortgage broker’s license, regardless of whether the mortgage loan originator is an employee of the mortgage banker or mortgage broker or purports to act as an agent or independent contractor for the mortgage banker or mortgage broker;

(19) “Loan terms” include, but are not limited to:

(a) The provisions related to the payment amounts, expressed either as a percentage or dollar amount;

(b) The length of the loan;

(c) The market or fully indexed rate;

(d) The start rate;

(e) The life cap rate; and

(f) Whether the loan permits negative amortization.

(20) “Loan-to-value ratio” means the ratio between the amount of a mortgage loan and the value of the property pledged as security, expressed as a percentage.

(21) “Lock agreement” means an agreement with a borrower made by a mortgage banker, mortgage broker or mortgage loan originator, in which the mortgage banker, mortgage broker or mortgage loan originator agrees that, for a specified period of time, a specific interest rate or other financing term will be the rate or term at which it will make a loan available to that borrower.

(22) “Material litigation” means any past or pending litigation, which would be relevant to the director's action on an application for a mortgage broker or mortgage banker license, including but not limited to the following types of litigation:

(a) Any civil action within the previous ten years from the date of the application, including suits filed in civil court, administrative actions, arbitration proceedings, or alternative dispute resolutions, resulting in damages or penalties of $10,000 or more assessed against the applicant;

(b) Any pending civil action including suits filed in civil court, administrative actions, arbitration, or alternative dispute resolution, seeking damages or penalties of $10,000 or more against the applicant; and

(c) Any bankruptcy filing or declaration of bankruptcy within the previous ten years from the date of the application regardless of final disposition.

(23) "Neutral escrow depository" means the deposit of money with an escrow agent licensed under ORS 696.511.

(24) “NMLS Policy Guidebook” means the Conference of State Bank Supervisors/American Association of Residential Mortgage Regulators NMLS Policy Guidebook for Licensees, published by the State Regulatory Registry, updated on August 1, 2011, and available at http://mortgage.nationwidelicensingsystem.org/slr/common/policy/Pages/default.aspx.

(25) “Principal place of business” means that location, designated by the mortgage banker or mortgage broker, where the owners, officers, directors or other control persons conduct business and maintain books and records.

(26) “Savings statement” means written material given to the consumer which outline how much a consumer may save in interest costs if they make additional payments above the required minimum monthly payment on their proposed or current mortgage.

(27) “Supervisor” means a partner, officer, branch manager, or other experienced person with management or supervisory responsibilities who is an employee of the mortgage banker or mortgage broker.

(28) “Trust Funds” mean those funds deposited into a trust account or with a neutral escrow depository. Trust funds shall include, but are not limited to:

(a) All funds received by a licensee or persons authorized to act on behalf of the licensee from or on behalf of a client for payment of services to be provided by persons other than the licensee in connection with processing, arranging, or making a mortgage banking loan or mortgage loan;

(b) All funds received by a licensee or persons authorized to act on behalf of a licensee from or on behalf of a borrower for payment of principal, interest or taxes on a mortgage banking loan or mortgage loan, but shall not include such funds where the licensee and the lender have an agreement providing for the disposition of such funds, and the financial statements of licensee are audited on an annual basis in accordance with generally accepted auditing standards; and

(c) All funds received by a licensee or persons authorized to act on behalf of a licensee from or on behalf of a client for payment of services to be provided by a licensee in connection with processing, arranging, or making a mortgage banking loan or mortgage loan by the licensee, except for those funds received by a licensee on a nonrefundable basis under the provisions of OAR 441-875-0030.

(d) For purposes of this section, “licensee” means a mortgage banker, a mortgage broker or a mortgage loan originator.

Stat. Auth.: ORS 86A.136, 86A.242
Stats. Implemented: ORS 86A.100, 86A.200
Hist.: FCS 3-1993, f. & cert. ef. 11-15-93; FCS 11-1994, f. 11-4-94, cert. ef. 11-15-94; FCS 14-2009, f. 12-30-09, cert. ef. 1-4-10; FCS 4-2012, f. & cert. ef 8-1-12

441-850-0015

Waiver by Director

The Director may, either upon request or upon the Director's motion, waive or modify the application of any particular rule to a particular person when, in the Director's opinion, just and reasonable cause exists for such action and the waiving or modifying of such a rule would not be contrary to the provisions of ORS 86A.100 through 86A.172

Stat. Auth.: ORS 86A.136
Stats. Implemented: ORS 86A.136
Hist.: FCS 3-1993, f. & cert. ef. 11-15-93

441-850-0035

Records and Reports Retention Period

(1) All books and records required under the provisions of ORS 86A.095 through 86A.189 and OAR chapter 441, divisions 850 to 885 shall be maintained for a five year period beginning from the date of a residential mortgage loan is closed, denied or withdrawn:

(a) At the principal place of business as designated by the mortgage banker or mortgage broker;

(b) At the branch office of the mortgage banker or mortgage broker if the mortgage banker or mortgage broker provides notice to the director; or

(c) At a remote storage location if the file is more than six months old, the mortgage broker or banker provides notice to the director, and the mortgage broker or banker institutes an archiving system which provides for identification of the off site file drawer, box or storage container and exact location.

(2) An electronically produced or microphotographic duplicate of each document may be substituted for the original document at any time.

Stat. Auth.: ORS 86A.112
Stats. Implemented: ORS 86A.112
Hist.: FCS 3-1993, f. & cert. ef. 11-15-93; FCS 11-1994, f. 11-4-94, cert. ef. 11-15-94; FCS 1-1996, f. 11-20-96, cert. 12-1-96; FCS 14-2009, f. 12-30-09, cert. ef. 1-4-10

441-850-0042

Contents of Foreclosure Notices

The sender of a notice form required by ORS 86.737 must enter in the form and format adopted by this rule:

(1) The statewide telephone contact number for handling consumer queries as 855-480-1950;

(2) The telephone number of the Oregon State Bar’s Lawyer Referral Service as 503-684-3763;

(3) The Oregon State Bar’s Lawyer Referral Service toll-free number as 800-452-7636;

(4) The website address of the Oregon State Bar as http://www.osbar.org;

(5) The website address for the organization providing more information and a directory of legal aid programs as http://www.oregonlawhelp.org

(6) The toll-free consumer mortgage foreclosure information number as 855-480-1950; and

(7) Information on federal loan modification programs as http://www.makinghomeaffordable.gov/.

Stat. Auth.: ORS 86.737
Stats. Implemented: ORS 86.737
Hist.: FCS 9-2008, f. 10-15-08, cert. ef. 10-16-08; FCS 6-2009(Temp), f. 8-21-09 thru 2-17-10; FCS 11-2009, f. 12-2-09, cert. ef. 12-7-09; FCS 13-2011(Temp), f. & cert. ef. 12-15-11 thru 6-12-12; Administrative correction, 6-27-12

441-850-0050

Process to Challenge Information Entered into the National Mortgage Licensing System and Registry

(1) A person applying for a mortgage loan originator license or a person licensed as a mortgage loan originator has standing to challenge information regarding that person submitted to the National Mortgage Licensing System and Registry and transmitted to the director for the approval or denial of a mortgage loan originator license.

(2) Information subject to challenge by a person with standing under section (1) of this rule is limited to information that is factually inaccurate or incomplete.

(3) A challenge of information shall be made to the director in writing and shall include any documentation that supports the information subject to the challenge is factually inaccurate or incomplete. The director may limit the use of or reject information not relevant to the challenge.

(4) If the director determines that information is factually inaccurate or incomplete, the director may exclude the factually inaccurate or incomplete information in determining whether to issue or deny a mortgage loan originator license. The director may also notify the Nationwide Mortgage Licensing System and Registry of the factually inaccurate or incomplete information.

(5) Any person adversely affected or aggrieved by a decision may request the division reconsider its determination in accordance with OAR 137-004-0080.

Stat. Auth.: ORS 86A.242
Stats. Implemented: ORS 86A.230
Hist.: FCS 14-2009, f. 12-30-09, cert. ef. 1-4-10

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