2014 -- S 2789 SUBSTITUTE A

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LC004224/SUB A/2

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2014

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A N   A C T

RELATING TO FINANCIAL INSTITUTIONS -- LICENSED ACTIVITIES

     Introduced By: Senators Walaska, and Picard

     Date Introduced: March 25, 2014

     Referred To: Senate Commerce

     (Business Regulation)

It is enacted by the General Assembly as follows:

     SECTION 1. Sections 19-14-1, 19-14-2, 19-14-4, 19-14-5 and 19-14-6 of the General

Laws in Chapter 19-14 entitled "Licensed Activities" are hereby amended to read as follows:

     19-14-1. Definitions. -- Unless otherwise specified, the following terms shall have the

following meanings throughout chapters 14, 14.1, 14.2, 14.3, 14.4, 14.6, 14.8, and 14.10, and

14.11 of this title:

      (1) "Check" means any check, draft, money order, personal money order, or other

instrument for the transmission or payment of money. For the purposes of check cashing,

travelers checks or foreign denomination instruments shall not be considered checks. "Check

cashing" means providing currency for checks;

      (2) "Deliver" means to deliver a check to the first person who, in payment for the check,

makes, or purports to make, a remittance of, or against, the face amount of the check, whether or

not the deliverer also charges a fee in addition to the face amount, and whether or not the

deliverer signs the check;

      (3) "Electronic money transfer" means receiving money for transmission within the

United States or to locations abroad by any means including, but not limited to, wire, facsimile, or

other electronic transfer system;

      (4) (i) "Lender" means any person who makes or funds a loan within this state with the

person's own funds, regardless of whether the person is the nominal mortgagee or creditor on the

instrument evidencing the loan;

      (ii) A loan is made or funded within this state if any of the following conditions exist:

      (A) The loan is secured by real property located in this state;

      (B) An application for a loan is taken by an employee, agent, or representative of the

lender within this state;

      (C) The loan closes within this state;

      (D) The loan solicitation is done by an individual with a physical presence in this state;

or

      (E) The lender maintains an office in this state.

      (iii) The term "lender" shall also include any person engaged in a transaction whereby

the person makes or funds a loan within this state using the proceeds of an advance under a line

of credit over which proceeds the person has dominion and control and for the repayment of

which the person is unconditionally liable. This transaction is not a table-funding transaction. A

person is deemed to have dominion and control over the proceeds of an advance under a line of

credit used to fund a loan regardless of whether:

      (A) The person may, contemporaneously with or shortly following the funding of the

loan, assign or deliver to the line of credit lender one or more loans funded by the proceeds of an

advance to the person under the line of credit;

      (B) The proceeds of an advance are delivered directly to the settlement agent by the line-

of-credit lender, unless the settlement agent is the agent of the line-of-credit lender;

      (C) One or more loans funded by the proceeds of an advance under the line of credit is

purchased by the line-of-credit lender; or

      (D) Under the circumstances, as set forth in regulations adopted by the director or the

director's designee pursuant to this chapter;

      (5) "Licensee" means any person licensed under this chapter;

      (6) "Loan" means any advance of money or credit including, but not limited to:

      (i) Loans secured by mortgages;

      (ii) Insurance premium finance agreements;

      (iii) The purchase or acquisition of retail installment contracts or advances to the holders

of those contracts;

      (iv) Educational loans;

      (v) Any other advance of money; or

      (vi) Any transaction, such as those commonly known as "pay day payday loans," "pay

day payday advances," or "deferred-presentment loans," in which a cash advance is made to a

customer in exchange for the customer's personal check, or in exchange for the customer's

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authorization to debit the customer's deposit account, and where the parties agree either that the

check will not be cashed or deposited, or that customer's deposit account will not be debited, until

a designated future date.

      (7) "Loan broker" means any person who, for compensation or gain, or in the expectation

of compensation or gain, either directly or indirectly, solicits, processes, negotiates, places, or

sells a loan within this state for others in the primary market, or offers to do so. A loan broker

shall also mean any person who is the nominal mortgagee or creditor in a table funding

transaction. A loan is brokered within this state if any of the following conditions exist:

      (i) The loan is secured by real property located in this state;

      (ii) An application for a loan is taken or received by an employee, agent, or

representative of the loan broker within this state;

      (iii) The loan closes within this state;

      (iv) The loan solicitation is done by an individual with a physical presence in this state;

or

      (v) The loan broker maintains an office in this state.

      (8) "Personal money order" means any instrument for the transmission or payment of

money in relation to which the purchaser or remitter appoints, or purports to appoint, the seller as

his or her agent for the receipt, transmission, or handling of money, whether the instrument is

signed by the seller or by the purchaser or remitter or some other person;

      (9) "Primary market" means the market in which loans are made to borrowers by lenders,

whether or not through a loan broker or other conduit;

      (10) "Principal owner" means any person who owns, controls, votes, or has a beneficial

interest in, directly or indirectly, ten percent (10%) or more of the outstanding capital stock

and/or equity interest of a licensee;

      (11) "Sell" means to sell, to issue, or to deliver a check;

      (12) "Small loan" means a loan of less than five thousand dollars ($5,000), not secured

by real estate, made pursuant to the provisions of chapter 14.2 of this title;

      (13) "Small-loan lender" means a lender engaged in the business of making small loans

within this state;

      (14) "Table-funding transaction" means a transaction in which there is a

contemporaneous advance of funds by a lender and an assignment by the mortgagee or creditor of

the loan to the lender;

      (15) "Check casher" means a person or entity that, for compensation, engages, in whole

or in part, in the business of cashing checks;

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      (16) "Deferred-deposit transaction" means any transaction, such as those commonly

known as "pay-day payday loans," "pay-day payday advances," or "deferred-presentment loans,"

in which a cash advance is made to a customer in exchange for the customer's personal check or

in exchange for the customer's authorization to debit the customer's deposit account and where

the parties agree either that the check will not be cashed or deposited, or that the customer's

deposit account will not be debited until a designated future date;

      (17) "Insurance premium finance agreement" means an agreement by which an insured,

or prospective insured, promises to pay to an insurance premium finance company the amount

advanced, or to be advanced, under the agreement to an insurer or to an insurance producer, in

payment of a premium, or premiums, on an insurance contract, or contracts, together with interest

and a service charge, as authorized and limited by this title;

      (18) "Insurance premium finance company" means a person engaged in the business of

making insurance premium finance agreements or acquiring insurance premium finance

agreements from other insurance premium finance companies;

      (19) "Simple interest" means interest computed on the principal balance outstanding

immediately prior to a payment for the actual number of days between payments made on a loan

over the life of a loan;

      (20) "Nonprofit organization" means a corporation qualifying as a 26 U.S.C. section

§501(c)(3) nonprofit organization, in the operation of which no member, director, officer, partner,

employee, agent, or other affiliated person profits financially other than receiving reasonable

salaries if applicable;

      (21) "Mortgage loan originator" has the same meaning set forth in subdivision §19-

14.10-3(6);

      (22) "Mortgage loan" means a loan secured in whole, or in part, by real property located

in this state;

      (23) "Loan solicitation" shall mean an effectuation, procurement, delivery and offer, and

advertisement of a loan. Loan solicitation also includes providing or accepting loan applications

and assisting persons in completing loan applications and/or advising, conferring, or informing

anyone regarding the benefits, terms and/or conditions of a loan product or service. Loan

solicitation does not include loan processing or loan underwriting as defined in this section. Loan

solicitation does not include telemarketing which that is defined, for purposes of this section, to

mean contacting a person by telephone with the intention of collecting such person's name,

address, and telephone number for the sole purpose of allowing a mortgage loan originator to

fulfill a loan inquiry;

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      (24) "Processes" shall mean, with respect to a loan, any of a series of acts or functions,

including the preparation of a loan application and supporting documents, performed by a person

which that leads to, or results in, the acceptance, approval, denial, and/or withdrawal of a loan

application, including, without limitation, the rendering of services, including loan underwriting,

obtaining verifications, credit reports or appraisals, communicating with the applicant and/or the

lender or loan broker, and/or other loan processing and origination services, for consideration by

a lender or loan broker. Loan processing does not include the following:

      (i) Providing loan closing services;

      (ii) Rendering of credit reports by an authorized credit reporting agency; and

      (iii) Rendering of appraisal services.

      (25) "Loan underwriting" shall mean a loan process that involves the analysis of risk

with respect to the decision whether to make a loan to a loan applicant based on credit,

employment, assets, and other factors, including evaluating a loan applicant against a lender's

various lending criteria for creditworthiness, making a determination for the lender as to whether

the applicant meets the lender's pre-established credit standards and/or making a recommendation

regarding loan approval;

      (26) "Negotiates" shall mean, with respect to a loan, to confer directly with, or offer

advice directly to, a loan applicant or prospective loan applicant for a loan product or service

concerning any of the substantive benefits, terms, or conditions of the loan product or service;

      (27) "Natural person employee" shall mean any natural person performing services as a

bona-fide employee for a person licensed under the provisions of Rhode Island general laws

section §19-14-1, et. seq., in return for a salary, wage, or other consideration, where such salary,

wage, or consideration is reported by the licensee on a federal form W-2 payroll record. The term

does not include any natural person or business entity performing services for a person licensed

under the provisions of Rhode Island general laws in return for a salary, wage, or other

consideration, where such salary, wage, or consideration is reported by the licensee on a federal

form 1099;

      (28) "Bona-fide employee" shall mean an employee of a licensee who works under the

oversight and supervision of the licensee;

      (29) "Oversight and supervision of the licensee" shall mean that the licensee provides

training to the employee, sets the employee's hours of work, and provides the employee with the

equipment and physical premises required to perform the employee's duties;

      (30) "Operating subsidiary" shall mean a majority-owned subsidiary of a financial

institution or banking institution that engages only in activities permitted by the parent financial

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institution or banking institution;

      (31) "Provisional employee" means a natural person who, pursuant to a written

agreement between the natural person and a wholly owned subsidiary of a financial holding

company, as defined in The Bank Holding Company Act of 1956, as amended, a bank-holding

company, savings-bank-holding company, or thrift holding company, is an exclusive agent for the

subsidiary with respect to mortgage loan originations, and the subsidiary: (a) hHolds a valid loan

broker's license and (b) eEnters into a written agreement with the director or the director's

designee to include:

      (i) An "undertaking of accountability" in a form prescribed by the director or the

director's designee, for all of the subsidiary's exclusive agents to include full-and-direct financial

and regulatory responsibility for the mortgage loan originator activities of each exclusive agent as

if said exclusive agent was were an employee of the subsidiary;

      (ii) A business plan, to be approved by the director or the director's designee, for the

education of the exclusive agents, the handling of consumer complaints related to the exclusive

agents, and the supervision of the mortgage loan origination activities of the exclusive agents; and

      (iii) A restriction of the exclusive agents' mortgage loan originators' activities to loans to

be made only by the subsidiary's affiliated bank. ; and

      (32) "Multi-state licensing system" means a system involving one or more states, the

District of Columbia, or the Commonwealth of Puerto Rico established to facilitate the sharing of

regulatory information and the licensing, application, reporting, and payment processes, by

electronic or other means, for mortgage lenders and loan brokers, and other licensees required to

be licensed under this chapter.;

      (33) "Negative equity" means the difference between the value of an asset and the

outstanding portion of the loan taken out to pay for the asset, when the latter exceeds the former

amount.;

      (34) "Loan-closing services" means providing title services, including title searches, title

examinations, abstract preparation, insurability determinations, and the issuance of title

commitments and title insurance policies, conducting loan closings, and preparation of loan

closing documents when performed by, or under the supervision of, a licensed attorney, licensed

title agency, or licensed title insurance company.;

     (35) "Servicing" means receiving a scheduled periodic payment from a borrower pursuant

to the terms of a loan, including amounts for escrow accounts, and making the payments to the

owner of the loan or other third party of principal and interest and other payments with respect to

the amounts received from the borrower as may be required pursuant to the terms of the servicing

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loan documents or servicing contract. In the case of a home equity conversion mortgage or a

reverse mortgage, servicing includes making payment to the borrower;

     (36) "Third-party loan servicer" means a person who, directly or indirectly, engages in

the business of servicing a loan made to a resident of Rhode Island, or a loan secured by

residential real estate located in Rhode Island, for a personal, family, or household purpose, owed

or due or asserted to be owed or due another; and

     (37) "Writing" means hard-copy writing or electronic writing that meets the requirements

of § 42-127.1-1 et seq.

     19-14-2. Licenses required. -- (a) No person shall engage within this state in the

business of: (1) mMaking or funding loans or acting as a lender or small loan lender; (2)

bBrokering loans or acting as a loan broker; (3) sSelling checks for a fee or other consideration;

(4) cCashing checks for a fee or other consideration, which includes any premium charged for the

sale of goods in excess of the cash price of the goods; (5) pProviding electronic money transfers

for a fee or other consideration; (6) pProviding debt-management services; or (7) pPerforming the

duties of a mortgage-loan originator; (8) Servicing a loan, directly or indirectly, as a third-party

loan servicer without first obtaining a license or registration from the director or the director's

designee. The licensing requirement for any person providing debt-management plans shall apply

to all persons, without regard for state of incorporation or a physical presence in this state, who

initiate or service debt-management plans for residents of this state. Special exemptions from

licensing for each activity are contained in other chapters in this title.

      (b) No lender or loan-broker licensee shall permit an employee to act as a mortgage loan

originator without first verifying that such originator is licensed under this chapter. No individual

may act as a mortgage-loan originator without being licensed, or act as a mortgage loan originator

for more than one person. The license of a mortgage-loan originator is not effective during any

period when such mortgage-loan originator is not associated with a lender or loan-broker

licensee.

      (c) Each loan negotiated, solicited, placed, found, or made without a license as required

in subsection (a) of this section shall constitute a separate violation for purposes of this chapter.

      (d) No person engaged in the business of making or brokering loans in this state, whether

licensed in accordance with the provisions of this chapter, or exempt from licensing, shall accept

applications, or referral of applicants from, or pay a fee to, any lender, loan broker or mortgage-

loan originator who is required to be licensed or registered under said sections but is not licensed

to act as such by the director or the director's designee.

     19-14-4. Annual fee. -- (a) Each licensee shall pay an annual license fee as follows:

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      (1) Each small-loan lender license and each branch certificate, the sum of five hundred

fifty dollars ($550);

      (2) Each loan-broker license and each branch certificate, the sum of five hundred fifty

dollars ($550);

      (3) Each lender license and each branch certificate, the sum of one thousand one hundred

dollars ($1,100);

      (4) Each sale of checks license, the sum of three hundred sixty dollars ($360);

      (5) Each check cashing license, the sum of three hundred sixty dollars ($360);

     (6) Each electronic money transfer license, the sum of three hundred sixty dollars ($360);

      (7) Each registration to provide debt-management services, the sum of two hundred

dollars ($200); and

      (8) Each mortgage-loan originator license, the sum of one hundred dollars ($100). ; and

     (9) Each third-party loan-servicer license and each branch certificate, the sum of one

thousand one hundred dollars ($1,100).

      (b) Any licensee who shall not pay the annual fee by December 31 of each year shall be

subject to a daily penalty of twenty-five dollars ($25) per day, subject to a maximum of seven

hundred fifty dollars ($750). The penalty shall be paid to the director to, and for the use of, the

state. The penalty may be waived for good cause by the director, or the director's designee, upon

written request.

     19-14-5. Minimum capital. -- Each licensee, licensed pursuant to an application for

license filed after June 30, 1995, shall maintain the following minimum-net worth to be

evidenced in accordance with regulations promulgated by the director or the director's designee.

      (1) Small-loan lenders, the sum of twenty-five thousand dollars ($25,000);

      (2) Loan brokers, the sum of ten thousand dollars ($10,000);

      (3) Lenders, the sum of one hundred thousand dollars ($100,000); and

      (4) Sale of checks, the sum of fifty thousand dollars ($50,000). ; and

     (5) Third-party loan servicers, the sum of one hundred thousand dollars ($100,000).

     19-14-6. Bond of applicant. -- (a) An applicant for any license shall file with the

director, or the director's designee, a bond to be approved by him or her in which the applicant

shall be the obligor.

      (b) The amount of the bond shall be as follows:

      (1) Small-loan lenders, the sum of ten thousand dollars ($10,000);

      (2) Loan brokers, the sum of twenty thousand dollars ($20,000);

      (3) Lenders, the sum of fifty thousand dollars ($50,000);

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      (4) Sale of checks and electronic money transfer licensees, the sum of fifty thousand

dollars ($50,000) subject to a maximum of one hundred and fifty thousand dollars ($150,000)

when aggregated with agent locations;

      (5) Check-cashing licensees who accept checks for collection with deferred payment, the

sum of fifty thousand dollars ($50,000) subject to a maximum of one hundred and fifty thousand

dollars ($150,000) when aggregated with agent locations;

     (6) Foreign-exchange licensees, the sum of ten thousand dollars ($10,000);

      (7) Each The amounts listed above apply to licensees with zero (0) to three (3) branch or

agent locations location of a licensee, the sum of five thousand dollars ($5,000) Licensees with

four (4) to seven (7) branches shall post a bond, as indicated above, and an additional bond in the

sum of ten thousand dollars ($10,000). Licensees with eight (8) or more branches shall post a

bond, as indicated above, and an additional bond in the sum of twenty-five thousand dollars

($25,000); or

      (8) Each debt-management services registrant, the amount provided in section §19-14.8-

13. ; or

     (9) Each third-party loan servicer, the sum of fifty thousand dollars ($50,000).

      (c) The bond shall run to the state for the use of the state and of any person who may

have cause of action against the obligor of the bond under the provisions of this title. The bond

shall be perpetual and shall be conditioned upon the obligor faithfully conforming to, and abiding

by, the provisions of this title and of all rules and regulations lawfully made, and the obligor will

pay to the state and to any person any and all money that may become due or owing to the state or

to the person from the obligor under, and by virtue of, the provisions of this title.

      (d) The provisions of subsection (b)(6) of this section shall not apply to any foreign-

exchange business holding a valid electronic money-transfer license issued pursuant to section

§19-14-1 et seq., that has filed with the division of banking the bond required by subsections

(b)(4) and (b)(7) of this section.

      (e) The bond shall remain in force and effect until the surety is released from liability by

the director, or the director's designee, or until the bond is cancelled by the surety. The surety

may cancel the bond and be released from further liability under the bond upon receipt by the

director or the director's designee, of written notice of the cancellation of the bond at least thirty

(30) days in advance of the cancellation of the bond. The cancellation shall not affect any liability

incurred or accrued under the bond before the termination of the thirty-(30) day (30) period. Upon

receipt of any notice of cancellation, the director shall provide written notice to the licensee.

     (f) Upon receipt of any notice of cancellation, the director may provide written notice to

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the licensee requiring reinstatement or replacement of the bond. Unless the bond is reinstated by

the surety, or a satisfactory replacement bond is filed with the director prior to the cancellation of

the original bond, the license shall be suspended. The licensee will be provided notice of the

suspension and may request a hearing within thirty (30) days. If the licensee does not request a

hearing, the director, or director's designee, shall issue an order revoking the license for failure to

comply with this section.

     SECTION 2. Title 19 of the General Laws entitled "FINANCIAL INSTITUTIONS" is

hereby amended by adding thereto the following chapter:

CHAPTER 14.11

THIRD-PARTY LOAN SERVICERS

     19-14.11-1. License required. – (a) No person shall act as a third-party loan servicer,

directly or indirectly, for a loan to a Rhode Island borrower without first obtaining a license under

this chapter from the director or the director’s designee.

     (b) No license shall be required of:

     (1) A depository institution, or an affiliate or subsidiary of a depository institution, that is

controlled by, or under common control with, the depository institution and subject to the

regulatory authority of the primary regulator of the depository institution.

     (2) A lender licensed under chapter 14 of title 19 that retains the servicing rights on a

loan originally closed in the lender's name and subsequently sold, in whole or in part, to a third

party, provided that the provisions of §§ 19-14.11-2 (segregated accounts) and 19-14.11-4

(prohibited acts and practices) of this chapter shall apply to such lender.

     (3) A debt-management company licensed in this state when engaged in activities

permitted pursuant to its debt-management license.

     (4) An attorney licensed in this state when collecting a debt on behalf of a client.

     (5) Bona-fide nonprofit, organizations, exempt from taxation under section 501(c) of the

Internal Revenue Code, that are approved by the Department of Housing and Urban Development

as housing counseling agencies; that have a physical location in Rhode Island; and that lend state

or federal funds.

     19-14.11-2. Segregated accounts. -- (a) All amounts paid by borrowers to a licensee

subject to this chapter shall be deposited in one or more accounts maintained at a federally

insured depository institution, and with respect to such funds, the licensee shall act as a fiduciary.

Such account, or accounts, shall be segregated from all other accounts of the licensee. Such funds

shall not be used in the conduct of the licensee's personal affairs or in the licensee's business

affairs.

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     (b) The licensee may withdraw funds from the segregated account for payment directly to

the owner of the loan or other third party of principal and interest and other payments as may be

required pursuant to the terms of the loan document or servicing contract.

     (c) The licensee may withdraw funds from the segregated account for commissions to

which it is entitled for services actually performed.

     (d) The licensee may return funds from the segregated account to the borrower if not

prohibited.

     (e) The licensee shall maintain complete and accurate account records, including, at a

minimum, the source of all deposits, the nature and recipient of all disbursements, the date and

amount of each transaction, and the name of the borrower. All documents pertaining to account

activity shall be produced upon request of the director.

     19-14.11-3. Records required of licensee. -- The licensee shall keep, use in the

licensee's business, and make available to the director, or the director's designee upon request,

such books, accounts, records and data compilations as will enable the director, or director's

designee, to determine whether such licensee is complying with the provisions of this and other

applicable chapters and with the rules and regulations promulgated thereunder. Every licensee

shall preserve such books, accounts, records, and data compilations in a secure manner and in

accordance with § 19-14-20 for at least three (3) years after making the final entry on any loan

recorded therein.

     19-14.11-4. Prohibited acts and practices. -- It is a violation of this chapter for a person

to:

     (1) Directly or indirectly employ any scheme, device, or artifice to defraud or mislead

borrowers or lenders or to defraud any person.

     (2) Engage in any unfair or deceptive practice toward any person.

     (3) Obtain property by fraud or misrepresentation.

     (4) Use any unfair or unconscionable means in servicing a loan.

     (5) Knowingly misapply or recklessly apply loan payments to the outstanding balance of

a loan.

     (6) Knowingly misapply or recklessly apply payments to escrow accounts.

     (7) Require the unnecessary forced placement of insurance, when adequate insurance is

currently in place.

     (8) Fail to provide loan payoff information within the time period set forth in chapter 19.

     (9) Charge excessive or unreasonable fees to provide loan payoff information.

     (10) Fail to manage and maintain escrow accounts in accordance with § 19-9-2.

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     (11) Knowingly or recklessly provide inaccurate information to a credit bureau, thereby

harming a consumer's credit worthiness.

     (12) Fail to report both the favorable and unfavorable payment history of the consumer to

a nationally recognized consumer credit bureau at least annually if the servicer regularly reports

information to a credit bureau.

     (13) Collect private mortgage insurance beyond the date for which private mortgage

insurance is required.

     (14) Knowingly or recklessly facilitate the illegal foreclosure of real property collateral.

     (15) Knowingly or recklessly facilitate the illegal repossession of chattel collateral.

     (16) Fail to respond to consumer complaints in a timely manner.

     (17) Conduct any business covered by this chapter without holding a valid license as

required under this chapter, or assist, or aid and abet, any person in the conduct of business under

this chapter without a valid license as required under this chapter.

     (18) Fail to comply with any federal or state law, rule, or other legally binding authority

relating to the evaluation of loans for modification purposes or the modification of loans.

     (19) Fail to comply with this chapter, or rules adopted under this chapter, or fail to

comply with any orders or directives from the director, or fail to comply with any other state or

federal law, including the regulations thereunder, applicable to any business authorized or

conducted under this chapter.

     SECTION 3. This act shall take effect on July 1, 2015.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO FINANCIAL INSTITUTIONS -- LICENSED ACTIVITIES

***

     This act would require that persons performing the functions of a debt collector, servicing

loans, directly or indirectly, owed or due or asserted to be owed or due to another, or making

deferred deposit loans obtain a license from the director of the department of business regulation.

This act would also establish annual fees for these persons, minimum capital requirements and

bonding amounts.

     Additionally, this act would also require third-party loan servicers to be licensed by the

department of business regulation.

     This act would take effect on July 1, 2015.

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