17:11C-75 Prohibited practices, violations.

25. The following practices shall be prohibited and a violation of this act with respect to any mortgage loan:

a. No person shall use the word "mortgage" or similar word in any advertising, sign, letterhead, business card, or like matter which tends to represent that the person solicits, makes, brokers, or negotiates mortgage loans unless licensed to act as a residential mortgage lender, residential mortgage broker, or mortgage loan originator under this act, or is exempt from licensure pursuant to section 5 of this act.

b. No person shall obtain or attempt to obtain a license by fraud or misrepresentation in order to act as a licensee under this act.

c. No person shall assist, or aid or abet a licensee with respect to any licensed activities regulated by this act, unless properly licensed under this act, or exempt from licensure pursuant to section 5 of this act.

d. No residential mortgage lender, residential mortgage broker, or mortgage loan originator, whether a business or individual licensee, shall make, advertise, print, display, publish, distribute, electronically transmit, telecast or broadcast, or cause or permit to be made, advertised, printed, displayed, published, distributed, electronically transmitted, televised or broadcast, in any manner, any statement or representation which is false, misleading or deceptive.

e. No residential mortgage lender, residential mortgage broker, or mortgage loan originator shall engage in any unfair or deceptive practice toward any person, or directly or indirectly employ any scheme, device, or artifice to defraud or mislead borrowers, lenders, or any other person, including any action to misrepresent, circumvent, or conceal the nature of any information or material particular of any transaction, or to obtain the real property that is, or intended to be, the security for the loan.

f. No residential mortgage lender, residential mortgage broker, or mortgage loan originator shall advertise, solicit, or make, broker, or negotiate a mortgage loan for a specific interest rate, points, or other financing terms unless those terms are actually available at the time of advertising, making, brokering, or negotiating the loan.

g. No residential mortgage lender, residential mortgage broker, or mortgage loan originator shall make any statement or representation that the licensee will provide "immediate approval" of any mortgage loan application or "immediate closing" of a loan, or will afford unqualified access to credit.

h. No residential mortgage lender, residential mortgage broker, or mortgage loan originator shall fail to make any disclosures concerning a mortgage loan as required by federal and State law, including any order, rule or regulation made or issued pursuant to that law.

i. No residential mortgage lender, residential mortgage broker, or mortgage loan originator shall make any payment, threat, or promise, directly or indirectly, to any person for the purposes of influencing the independent judgment of the person in connection with a mortgage loan, including to any appraiser of the real property that is, or intended to be, the security for the loan for the purposes of influencing the appraiser's judgment with respect to the value of the property.

j. No residential mortgage lender, residential mortgage broker, or mortgage loan originator shall, in connection with or incidental to the making of any mortgage loan, require or permit a party to the transaction to sign the loan agreement, promissory note, bond or other mortgage instrument if it contains any blank space to be filled in after it has been signed, except a blank space relating to recording.

k. With respect to any commission, bonus or fee:

(1) No person shall pay or receive any commission, bonus, or fee to or from any person not licensed under this act, or not exempt from licensure pursuant to section 5 of this act, in connection with soliciting, making, brokering, or negotiating any mortgage loan for a borrower.

(2) A residential mortgage lender, residential mortgage broker, or mortgage loan originator shall not solicit, make, broker, or negotiate a contract with a borrower that provides in substance that the licensee may earn a commission, bonus, or fee through "best efforts" to obtain a mortgage loan, even though no loan is actually consummated for the borrower.

l. No residential mortgage lender, residential mortgage broker, or mortgage loan originator shall charge or exact directly or indirectly from a borrower or any other person any commission, bonus, fee, or charge not authorized by this act.

m. No residential mortgage lender or residential mortgage broker shall fail to disburse funds in accordance with the licensee's agreements, unless otherwise ordered by the commissioner or a court of competent jurisdiction.

n. No residential mortgage lender or residential mortgage broker shall fail to place in escrow, immediately upon receipt, any money, fund, deposit, check, or draft entrusted to the licensee by any person, in a manner approved by the commissioner, or to deposit the funds in a trust or escrow account maintained by the licensee with a depository institution, wherein the funds shall be kept until the disbursement thereof is properly authorized.

o. If a residential mortgage lender or residential mortgage broker provides loan proceeds to a closing agent for the purpose of closing and settling a mortgage transaction, the licensee shall not fail: (1) to present a certified check, cashier's check, teller's check or bank check for the proceeds of the mortgage loan; (2) to arrange an electronic fund transfer for the proceeds of the loan; or (3) to provide for payment by cash to the closing agent at a reasonable time and place prior to the time of the mortgage closing transaction. The closing agent shall deposit the loan proceeds in a trust or escrow account, which shall not be commingled with the agent's own funds, and shall disburse the loan proceeds upon the closing or settlement in accordance with the settlement documents. Nothing contained in this subsection shall require the licensee to utilize a closing agent, or prevent the licensee from directly disbursing loan proceeds from the account of the licensee to the borrower and other persons entitled to receive disbursements from the settlement if a closing agent is not used. Nothing contained in this subsection shall prevent the licensee from assessing a reasonable charge as set forth by regulation of the commissioner to reflect the additional cost to the licensee for the issuance of a certified, cashier's, teller's or bank check or for arranging an electronic fund transfer. The reasonable charge shall be fully disclosed at application, or at or prior to the issuance of the loan commitment. In this subsection, a "bank check" means a negotiable instrument drawn by a federal or state chartered bank, savings bank or savings and loan association on itself or on its account in another federal or state chartered bank, savings bank or savings and loan association doing business in this State; and a "teller's check" means a draft drawn by a bank on another bank, or payable at or through a bank.

p. No residential mortgage lender, residential mortgage broker, or mortgage loan originator shall fail without good cause to truthfully account or deliver to any person any personal property, money, fund, deposit, check, draft, mortgage, document or thing of value, which is not the licensee's property, or which the licensee is not in law or equity entitled to retain under the circumstances, at the time which has been agreed upon, or is required by law, or, in the absence of a fixed time, upon demand of the person entitled to the accounting or delivery.

L.2009, c.53, s.25.