Truth in Lending (Regulation Z); Screening and Training Requirements for Mortgage Loan Originators With Temporary Authority
| Citation | 84 FR 63791 |
| Record Number | 2019-24944 |
| Published date | 19 November 2019 |
| Section | Rules and Regulations |
| Court | Consumer Financial Protection Bureau |
Federal Register, Volume 84 Issue 223 (Tuesday, November 19, 2019)
[Federal Register Volume 84, Number 223 (Tuesday, November 19, 2019)]
[Rules and Regulations]
[Pages 63791-63794]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24944]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 84, No. 223 / Tuesday, November 19, 2019 /
Rules and Regulations
[[Page 63791]]
BUREAU OF CONSUMER FINANCIAL PROTECTION
12 CFR Part 1026
Truth in Lending (Regulation Z); Screening and Training
Requirements for Mortgage Loan Originators With Temporary Authority
AGENCY: Bureau of Consumer Financial Protection.
ACTION: Interpretive rule.
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SUMMARY: This interpretive rule construes the Bureau's Regulation Z,
which implements the Truth in Lending Act (TILA). Generally, if a
mortgage loan originator organization employs an individual loan
originator who is not licensed and is not required to be licensed,
Regulation Z requires the loan originator organization to perform
specific screening of that individual before permitting the individual
to act as a loan originator and to provide certain ongoing training.
Regulation Z is ambiguous as to whether these requirements apply to
loan originator organizations employing individual loan originators who
have temporary authority to originate loans pursuant to the Economic
Growth, Regulatory Relief, and Consumer Protection Act of 2018
(EGRRCPA) amendments to the Secure and Fair Enforcement for Mortgage
Licensing Act of 2008 (SAFE Act). These amendments take effect on
November 24, 2019. This interpretive rule concludes that a loan
originator organization is not required to comply with certain
screening and training requirements under Regulation Z if the
individual loan originator employee is authorized to act as a loan
originator pursuant to the temporary authority described in the SAFE
Act.
DATES: This interpretive rule is effective on November 24, 2019.
FOR FURTHER INFORMATION CONTACT: Terry J. Randall, Senior Counsel,
Office of Regulations, at 202-435-7700 or https://reginquiries.consumerfinance.gov/. If you require this document in an
alternative electronic format, please contact
[email protected].
SUPPLEMENTARY INFORMATION:
I. Discussion
In 2010, the Dodd-Frank Wall Street Reform and Consumer Protection
Act (Dodd-Frank Act) added TILA section 129B(b)(1), and imposed new
requirements for loan originators, including the requirement for them
to be qualified.\1\ In 2013, the Bureau adopted amendments to
Regulation Z, implementing the mortgage loan originator qualification
requirements under TILA. These Regulation Z changes including adding
Sec. 1026.36(f)(3), which generally requires a loan originator
organization that employs an individual loan originator who is not
licensed and is not required to be licensed pursuant to the SAFE Act
to: (1) Complete certain screenings of that individual prior to
permitting the individual to act as a loan originator on a consumer
credit transaction secured by a dwelling, and (2) to provide periodic
training.\2\ In adding these requirements, the Bureau took into account
the SAFE Act's preexisting screening and training requirements for loan
originators.\3\
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\1\ Public Law 111-203, sec, 1402(a)(2), 124 Stat. 1376, 2139
(2010) (codified at 15 U.S.C. 1639b).
\2\ Loan Originator Compensation Requirements under the Truth in
Lending Act (Regulation Z), 78 FR 11279, 11374-84, 11412-13 (Feb.
15, 2013) (promulgating 12 CFR 1026.36(f)(3)), amended 78 FR 60382,
60441-42 (Oct. 1, 2013). These requirements do not apply to loan
originator organizations that are government agencies or State
housing finance agencies. 12 CFR 1026.36(f).
\3\ 78 FR at 11375.
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The EGRRCPA amendments to the SAFE Act take effect on November 24,
2019.\4\ These amendments permit certain individuals who were
previously registered or State-licensed for a certain period of time
pursuant to the SAFE Act to act as a loan originator in a State, if
they have applied for a loan originator license in the State (``loan
originators with temporary authority'').\5\
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\4\ Public Law 115-174, title I, sec. 106(a), 132 Stat. 1296,
1302 (2018) (to be codified at 12 U.S.C. 5117).
\5\ 12 U.S.C. 5117.
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Section 1026.36(f)(3) of Regulation Z is ambiguous as to whether
its screening and training requirements for loan originator
organizations employing individual loan originators who ``are not
licensed and are not required to be licensed'' apply to a loan
originator organization employing a loan originator with temporary
authority. As discussed below, the Bureau believes that interpreting
these requirements not to apply is consistent with Congress's
objectives in amending the SAFE Act. The Bureau also believes that
interpreting these requirements not to apply is consistent with the
agency's objectives in imposing the screening and training requirements
in Sec. 1026.36(f)(3). Accordingly, the Bureau concludes that if an
individual loan originator has temporary authority in a particular
State, the loan originator organization does not need to satisfy the
screening and training requirements in Sec. 1026.36(f)(3) with regard
to that individual's loan origination activities in that State.
The Bureau is issuing this interpretive rule based on its authority
to interpret Regulation Z, including under section 1022(b)(1) of the
Dodd-Frank Act, which authorizes guidance as may be necessary or
appropriate to enable the Bureau to administer and carry out the
purposes and objectives of the Federal consumer financial laws.\6\
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\6\ 12 U.S.C. 5512(b)(1). The relevant provisions of Regulation
Z form part of Federal consumer financial law. 12 U.S.C.
5481(12)(O), (14).
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By operation of TILA section 130(f), no provision of TILA sections
130, 108(b), 108(c), 108(e), or 112 imposing any liability applies to
any act done or omitted in good faith in conformity with this
interpretive rule, notwithstanding that after such act or omission has
occurred, the interpretive rule is amended, rescinded, or determined by
judicial or other authority to be invalid for any reason.\7\ The Bureau
plans to incorporate the content of this interpretive rule into the
Official Interpretations to Regulation Z at a later date.\8\
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\7\ 15 U.S.C. 1640(f).
\8\ 12 CFR part 1026, supp. I.
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Screening and Training for Licensed Loan Originators Under the SAFE Act
The SAFE Act prohibits individuals from engaging in the business of
a loan originator unless they are registered loan originators under
Federal law or they obtain a State loan originator license and
registration.\9\ The SAFE Act requires loan originators who are
employees of a depository institution,
[[Page 63792]]
employees of a subsidiary that is owned and controlled by a depository
institution and regulated by a Federal banking agency, or employees of
an institution regulated by the Farm Credit Administration (FCA)
(``registered loan originators'') to register with the Nationwide
Mortgage Licensing System and Registry (NMLSR).\10\ (The NMLSR is a
system for registering, licensing, supervising, and tracking loan
originators).
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\9\ 12 U.S.C. 5103(a)(1).
\10\ See 12 U.S.C. 5106.
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The SAFE Act also generally requires loan originators who are not
registered loan originators to obtain a State license and to register
with the NMLSR (``licensed loan originators'').\11\ SAFE Act licensing
is implemented by States. To grant an individual a SAFE Act-compliant
loan originator license, section 1505 of the SAFE Act, 12 U.S.C. 5104,
requires the State to conduct certain screening and to ensure that the
loan originator has completed certain education and testing
requirements. Generally speaking, section 1505 provides that the State
must determine that the individual has never had a loan originator
license revoked; has not been convicted of enumerated felonies within
specified timeframes; has demonstrated financial responsibility,
character, and fitness; has completed 20 hours of pre-licensing
education that the NMLSR has approved; has passed a written test the
NMLSR has approved; and has met net worth or surety bond requirements.
Licensed loan originators also must take eight hours of continuing
education classes the NMLSR has approved and must renew their licenses
annually.\12\ States may impose additional or higher minimum standards
for licensing of individual loan originators under their SAFE Act-
compliant licensing regimes.\13\
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\11\ 12 U.S.C. 5102(8) and (12). Regulation H, 12 CFR part 1008,
which implements SAFE Act standards applicable to State licensing,
provides that a State is not required to impose licensing and
registration requirements on certain individuals. 12 CFR
1008.103(e).
\12\ 12 U.S.C. 5105. In addition to other requirements, the SAFE
Act requires individuals who are subject to SAFE Act registration or
State licensing to obtain a unique identification number from the
NMLSR. 12 U.S.C. 5103(a)(2).
\13\ 12 U.S.C. 5104 and 5105 (e.g., describing ``minimum
standards'').
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In contrast, the SAFE Act does not impose these specific screening
or education requirements on registered loan originators. Section 1507
of the SAFE Act, 12 U.S.C. 5106, generally requires the Bureau to
develop and maintain a system for registering individual loan
originators who are subject to registration. In connection with loan
originator registration, the SAFE Act specifies that the following
information must be furnished to the NMLSR: (1) Fingerprints to the
NMLSR for a criminal history background check and (2) personal history
and experience, including authorization for the NMLSR to obtain
information related to any administrative, civil or criminal findings
by any governmental jurisdiction.\14\
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\14\ 12 U.S.C. 5106. In addition, Regulation G, 12 CFR part
1007, which implements SAFE Act registration requirements, imposes
an obligation on the employing covered financial institution, among
other things, to adopt and follow written policies and procedures
that establish a process for reviewing employee criminal history
background reports, taking appropriate action consistent with
applicable Federal law, including section 19 of the Federal Deposit
Insurance Act (FDIA), 12 U.S.C. 1829, section 206 of the Federal
Credit Union Act, 12 U.S.C. 1786(i), and section 5.65(d) of the Farm
Credit Act of 1971, as amended, 12 U.S.C. 2277a-14(d), and complying
with certain recordkeeping requirements. 12 CFR 1007.104(h).
Regulation G defines ``covered financial institution'' to mean any
national bank, member bank, insured State nonmember bank, savings
association, Farm Credit System institution, or federally insured
credit union as any such term is defined in 12 CFR 1007.101(c)(1).
Regulation G also specifies that ``covered financial institution''
also includes a non-federally insured credit union that registers
subject to the conditions of 12 CFR 1007.101(c)(3). 12 CFR 1007.102.
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Screening and Training for Unlicensed Loan Originators Under Regulation
Z
In 2010, the Dodd-Frank Act added TILA section 129B(b)(1), and
imposed new requirements for loan originators, including the
requirement for them to be qualified.\15\ In 2013, the Bureau amended
Regulation Z to implement the requirement that they be qualified by,
among other things,\16\ establishing certain screening and training
requirements for unlicensed loan originators.\17\ If an individual loan
originator is not required to be licensed and is not licensed, Sec.
1026.36(f)(3) requires a loan originator organization to complete
certain screening before permitting the individual to act as a loan
originator in a consumer credit transaction secured by a dwelling and
to provide periodic training. Generally, the loan originator
organization must obtain: (1) A criminal background check about the
individual; (2) a credit report, and (3) certain information from the
NMLSR (or from the individual if the individual is not a registered
loan originator) about any administrative, civil, or criminal findings
by any government jurisdiction relating to the individual, and make
substantially the same findings regarding the individual's criminal
history, financial responsibility, character, and general fitness that
the SAFE Act requires for State loan originator licenses.\18\ Loan
originator organizations employing such individual loan originators
must also provide periodic training for the loan originators about
Federal and State legal requirements that apply to their loan
origination activities.\19\
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\15\ Public Law 111-203, sec. 1402(a)(2), 124 Stat. 1376, 2139
(2010) (codified at 15 U.S.C. 1639b).
\16\ In addition to the requirements described above, Sec.
1026.36(f)(1) requires a loan originator organization to comply with
all applicable State law requirements for legal existence and
foreign qualification and Sec. 1026.36(f)(2) requires a loan
originator organization to ensure that each individual loan
originator who works for the loan originator organization is
licensed or registered to the extent the individual is required to
be licensed or registered under the SAFE Act, its implementing
regulations, and State SAFE Act implementing law. The requirements
in Sec. 1026.36(f)(1)-(3) do not apply to loan originator
organizations that are government agencies or State housing finance
agencies. 12 CFR 1026.36(f).
\17\ 12 CFR 1026.36(f)(3). See also 78 FR at 11374-84.
\18\ 12 CFR 1026.36(f)(3)(i) and (ii). Regulation Z excludes
individual loan originators hired prior to January 1, 2014, from
these requirements unless there were no applicable statutory or
regulatory background standards in effect at the time of hire used
to screen the individual or unless, based on reliable information
known to the loan originator organization, the individual likely
does not meet the standards in Sec. 1026.36(f)(3)(ii). 12 CFR
1026.36(f)(3); comment 36(f)(3)(ii).
\19\ 12 CFR 1026.36(f)(3)(iii).
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When the Bureau issued Sec. 1026.36(f)(3), it generally applied
only to registered loan originators and employees of bona fide
nonprofit organizations that a State exempted from licensing under the
criteria in Regulation H.\20\ It did not apply to loan originators that
were also subject to individual screening by a State as part of the
State's consideration of an application for a loan originator license.
The Bureau intended to define certain minimum qualification standards
for loan originators to allow consumers to be confident that loan
originators meet core standards of integrity and competence, regardless
of the type of institution for which they work.\21\
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\20\ Comment 36(f)(3)-1 (``Individual loan originators who are
not subject to SAFE Act licensing generally include employees of
depository institutions and their Federally regulated subsidiaries
and employees of bona fide nonprofit organizations that a State has
exempted from licensing under the criteria in 12 CFR
1008.103(e)(7).'').
\21\ 78 FR at 11378.
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Thus, by adopting Sec. 1026.36(f)(3), the Bureau established a
scheme under which States perform screening of licensed loan
originators and loan originator organizations generally perform the
same screening of their unlicensed loan originator employees.
Similarly, States ensure that licensed loan originators complete
specific training and testing and loan originator organizations
generally provide training
[[Page 63793]]
for unlicensed loan originator employees.
Loan Originators With Temporary Authority Under EGRRCPA
The EGRRCPA amendments to the SAFE Act add a new category of loan
originators, those with temporary authority, effective November 24,
2019.\22\ The amendments, which are in a section of the EGRRCPA titled
``Eliminating Barriers to Jobs for Loan Originators,'' among other
things, permit certain loan originators to act as a loan originator in
a State for a temporary period of time while applying for a license in
the State. Eligible loan originators include those who are employed by
a State-licensed mortgage company, have applied for a license in a new
State, were previously registered or licensed in a different State for
a certain period of time prior to applying for the new license, and
satisfy certain criminal and adverse professional history criteria.\23\
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\22\ Supra note 4.
\23\ 12 U.S.C. 5117(b) and (c). Criminal history and adverse
professional history criteria include that the individual has not
had an application for a loan originator license denied, or a loan
originator license revoked or suspended in any governmental
jurisdiction; has not been subject to, or served with, a cease and
desist order in any governmental jurisdiction or under section
1514(c) of the SAFE Act, and has not been convicted of a misdemeanor
or felony that would preclude licensure under the law of the
application State. 12 U.S.C. 5117(b)(1) and (c)(1)(A).
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The SAFE Act amendments grant loan originators who meet these
criteria ``temporary authority to act as a loan originator in the
application State'' for a specified period of time, beginning when an
eligible individual submits certain application information and ending
upon the occurrence of one of four specified events (e.g., the State
grants the license).\24\ Thus, Congress chose to allow individuals who
meet these criteria to engage in the business of a loan originator
before the State had completed all of its processes for granting or
denying an application for a loan originator license.
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\24\ 12 U.S.C. 5117(b)(2) and (c)(2).
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Screening and Training Requirements Under Regulation Z for Loan
Originator Organizations Employing Loan Originators With Temporary
Authority
As discussed above, Sec. 1026.36(f)(3) imposes certain screening
and training obligations on loan originator organizations for ``each of
its individual loan originator employees who [1] is not required to be
licensed and [2] is not licensed as a loan originator pursuant to Sec.
1008.103 of this chapter or State SAFE Act implementing law.'' \25\
This language is ambiguous regarding whether the individual loan
originators that it references include loan originators with temporary
authority.
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\25\ 12 CFR 1026.36(f)(3). Generally, the loan originator
organization must obtain the individual's criminal background check,
a credit report, and certain information from the NMLSR (or from the
individual if the individual is not a registered loan originator)
about any administrative, civil, or criminal findings by any
government jurisdiction, and make substantially the same findings
regarding the individual loan originator's criminal history,
financial responsibility, character, and general fitness that the
SAFE Act requires for compliant State-issued loan originator
licenses. 12 CFR 1026.36(f)(3)(i) and (ii). Loan originator
organizations employing such individual loan originators must also
provide periodic training on Federal and State legal requirements
that apply to the individual loan originator's loan origination
activities. 12 CFR 1026.36(f)(3)(iii).
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Although it is ambiguous, the Bureau believes that the most
appropriate interpretation of Sec. 1026.36(f)(3) is that it does not
refer to a loan originator with temporary authority. A loan originator
with temporary authority does not satisfy the first condition in Sec.
1026.36(f)(3), because he or she is not an ``individual loan originator
employee[ ] who is not required to be licensed . . . .'' He or she is
an employee who is required to be licensed, although the employee can
act as a loan originator while seeking the required license.
The Bureau's interpretation of the ambiguous text of Sec.
1026.36(f)(3) is based on the Bureau's expertise in understanding and
carrying out the objectives of the SAFE Act and Regulation Z. First,
interpreting Sec. 1026.36(f)(3) not to refer to loan originators with
temporary authority would further Congress's objectives in amending the
SAFE Act. The Bureau believes that Congress aimed to permit a loan
originator that satisfies certain enumerated criteria and who is
transitioning to a new State to be able to begin acting as a loan
originator in the application State with minimal burden and delay and
before the State has completed all of its processes relating to
determining whether to grant a State license. This purpose is evident
in the amendment's authorizing eligible loan originators to commence
acting as a loan originator upon submitting certain application
information and in the title of the relevant section of the EGRRCPA,
``Eliminating Barriers to Jobs for Loan Originators.'' \26\ Requiring
loan originator organizations to complete the Sec. 1026.36(f)(3)
screening before permitting a loan originator with temporary authority
to begin acting as a loan originator would impose an impediment on a
loan originator from beginning to act as a loan originator, which would
frustrate Congress's objective.
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\26\ Supra note 4.
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Likewise, Congress established different and less onerous
qualification criteria for loan originators with temporary authority
than those required by the SAFE Act for licensed loan originators. For
example, the SAFE Act and Sec. 1026.36(f)(3) require a finding of
financial responsibility before granting a State license or permitting
an individual loan originator to act as a loan originator. The EGRRCPA
amendments to the SAFE Act do not condition temporary authority on a
finding concerning the individual's financial fitness. Applying through
Regulation Z the same SAFE Act standards to loan originators with
temporary authority would be in tension with Congress's decision to
apply less onerous qualification criteria to these loan originators.
The Bureau believes that it is most appropriate to instead read
Regulation Z in a manner that aligns with Congress's objectives in the
SAFE Act, by not imposing the relevant Regulation Z requirements on
loan originators with temporary authority.
A second and independently sufficient reason for interpreting Sec.
1026.36(f)(3) to not include loan originators with temporary authority
is that this reading is more consistent with the scheme for loan
originator screening and training established by the Bureau. As the
Bureau explained when adopting Sec. 1026.36(f)(3), the Bureau sought
to implement TILA section 129B(b)(1)'s requirement that, subject to
regulations prescribed the Bureau, each loan originator be
``qualified,'' by defining certain minimum qualification standards for
loan originators.\27\ The Bureau believed that those standards provided
important consumer protections without imposing significant burdens on
loan originator organizations.\28\ When the Bureau adopted Sec.
1026.36(f)(3), the category of loan originators with temporary
authority under the SAFE Act did not exist. Instead, the Bureau's main
focus was on addressing the qualifications of employees of depository
institutions, who are not subject to loan originator licensing under
the SAFE Act at any point during their employment at those
institutions.\29\ Under the scheme the Bureau adopted in Regulation Z,
an individual loan originator's screening and training was either
completed by the State (as part of reviewing an
[[Page 63794]]
application for a license) or by the loan originator organization
employing the individual loan originator (to comply with Sec.
1026.36(f)(3)). Under that scheme, both the State and the loan
originator organization did not have to complete screening and
training. If Sec. 1026.36(f)(3) were interpreted to apply to a loan
originator organization that employs a loan originator with temporary
authority, both the State (as part of reviewing the loan originator's
application for a license) and the loan originator organization (to
comply with Sec. 1026.36(f)(3)) would have to obtain the required
criminal background and credit history reports and make the required
criminal, financial responsibility, and character and fitness findings
at the same time on the same individual. Similarly, both the State and
the loan originator organization would have responsibilities related to
the loan originator's training. This duplication of efforts would be
inconsistent with the Bureau's purpose in issuing Sec. 1026.36(f)(3),
because such duplication would not result in additional consumer
protections that could justify these new burdens on loan originator
organizations.
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\27\ 78 FR at 11378; 15 U.S.C. 1639b(b)(1).
\28\ 78 FR at 11378.
\29\ 78 FR at 11378.
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For these reasons, the Bureau concludes that the individual loan
originators described in Sec. 1026.36(f)(3) do not include the loan
originators with temporary authority described in section 1518 of the
SAFE Act, 12 U.S.C. 5117. Thus, if an individual loan originator
employee has temporary authority to act as a loan originator in a
State, the loan originator organization is not required to comply with
the screening and training requirements in Sec. 1026.36(f)(3) to
permit that employee to act as a loan originator in that State.
Finally, the Bureau underscores that loan originator organizations
continue to be subject to the obligation in Sec. 1026.36(f)(2) to
ensure that any individual loan originator who works for them is
licensed or registered to the extent required by the SAFE Act, its
implementing regulations, or State SAFE Act implementing laws before
permitting the individual to act as a loan originator on a consumer
credit transaction secured by a dwelling. Thus, when satisfying the
loan originator organization's obligations under Sec. 1026.36(f)(2),
the loan originator organization must ensure that any individual loan
originator that works for it is either registered or licensed as
required by the SAFE Act or excluded from those requirements because
the individual may act as a loan originator with temporary
authority.\30\
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\30\ The Bureau also reminds loan originator organizations that
they continue to be subject to Sec. 1026.36(f)(1)'s obligation to
comply with all applicable State law requirements for legal
existence and foreign qualification.
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II. Effective Date
Because this rule is solely interpretive, it is not subject to the
30-day delayed effective date for substantive rules under section
553(d) of the Administrative Procedure Act.\31\ Therefore, this rule is
effective on November 24, 2019, the same date that the EGRRCPA
amendments to the SAFE Act take effect.
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\31\ 5 U.S.C. 553(d).
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III. Regulatory Requirements
This rule articulates the Bureau's interpretation of Regulation Z.
As an interpretive rule, it is exempt from the notice-and-comment
rulemaking requirements of the Administrative Procedure Act.\32\
Because no notice of proposed rulemaking is required, the Regulatory
Flexibility Act does not require an initial or final regulatory
flexibility analysis.\33\
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\32\ 5 U.S.C. 553(b).
\33\ 5 U.S.C. 603(a), 604(a).
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The Bureau has determined that this interpretive rule does not
impose any new or revise any existing recordkeeping, reporting, or
disclosure requirements on covered entities or members of the public
that would be collections of information requiring approval by the
Office of Management and Budget under the Paperwork Reduction Act.\34\
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\34\ 44 U.S.C. 3501-3521.
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IV. Congressional Review Act
Pursuant to the Congressional Review Act,\35\ the Bureau will
submit a report containing this interpretive rule and other required
information to the U.S. Senate, the U.S. House of Representatives, and
the Comptroller General of the United States prior to the rule's
published effective date. The Office of Information and Regulatory
Affairs has designated this interpretive rule as not a ``major rule''
as defined by 5 U.S.C. 804(2).
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\35\ 59 U.S.C. 801-808.
Dated: November 12, 2019.
Kathleen L. Kraninger,
Director, Bureau of Consumer Financial Protection.
[FR Doc. 2019-24944 Filed 11-18-19; 8:45 am]
BILLING CODE 4810-AM-P
