TITLE XXXV BANKS AND BANKING; LOAN ASSOCIATIONS; CREDIT UNIONS
CHAPTER 397-A LICENSING OF NONDEPOSITORY MORTGAGE BANKERS, BROKERS, AND SERVICERS
Section 397-A:1
397-A:1 Definitions. –
In this chapter:
I. "Agent" means any individual, other than a mortgage banker, mortgage broker, or mortgage servicer who is employed or retained by a mortgage banker, mortgage broker, or mortgage servicer required to be licensed under this chapter, and who represents a mortgage banker, mortgage broker, or mortgage servicer in soliciting, finding, negotiating, arranging, or processing mortgage loans.
I-a. "Affiliate" means a relationship between 2 or more persons if either person has the power to control the other, or where a third person controls or has the power to control such persons. Affiliates shall include but not be limited to:
(a) Interlocking directorates or ownership; or
(b) Identity of interests among members of a family.
II. "At closing" means the time at which the mortgage and the note are executed by the borrower.
III. "Borrower" means a homeowner or purchaser of a home who obtains funds from another by the signing of a note and mortgage deed on a dwelling. The term shall include any legal successor to the borrower's rights or obligations.
IV. "Branch office" means a location within or without this state of a person required to be licensed under this chapter that is identified by any means to the public as a location at which a mortgage banker, mortgage broker, or mortgage servicer conducts New Hampshire mortgage business. Branch office does not include:
(a) A person's principal office location.
(b) A location identified solely in a telephone directory line listing or on a business card or letterhead if:
(1) The listing, card, or letterhead also sets forth the address and telephone number of a New Hampshire licensed office of the mortgage banker, mortgage broker, or mortgage servicer from which all individuals conducting mortgage business from such identified location are directly supervised, provided that such supervisory office is located within 100 miles of the identified location; and
(2) No more than one agent, employee, originator, or other representative transacts business on behalf of the mortgage banker or mortgage broker from such identified location.
(c) Any other location not within the intent of this paragraph as the commissioner may determine.
V. "Commissioner" means the bank commissioner.
V-a. "Control" means the power, directly or indirectly, to direct the management or policies of a company, whether through ownership of securities, by contract, or otherwise. Any person is presumed to control a company that:
(a) Is a director, general partner, or executive officer;
(b) Directly or indirectly has the right to vote 10 percent or more of a class of a voting security or membership interest, or has the power to sell or direct the sale of 10 percent or more of a class of voting securities or membership interest;
(c) In the case of a limited liability company, is a managing member; or
(d) In the case of a partnership, has the right to receive upon dissolution, or has contributed, 10 percent or more of the capital.
VI. "Department" means the banking department.
VI-a. "Direct owner" means any person, including an individual, that owns, beneficially owns, has the right to vote, or has the power to sell or direct the sale of 10 percent or more of the applicant or licensee.
VI-b. "Depository institution" has the same definition as in section 3 of the Federal Deposit Insurance Act, and includes any insured credit union.
VI-c. "Dwelling" means a residential structure or mobile or manufactured home which contains one to 4 family housing units located in New Hampshire whether or not attached to real property, or individual units of condominiums or cooperatives. The term includes manufactured housing, a mobile home, and a trailer if it is used or intended to be used as a residence.
VI-d. "Engaged in the business of" means to act or hold oneself out as acting in a commercial context and with some degree of habitualness or repetition.
VI-e. "Federal banking agency" means the Board of Governors of the Federal Reserve System, the Comptroller of the Currency, the Director of the Office of Thrift Supervision, the National Credit Union Administration, or the Federal Deposit Insurance Corporation.
VI-f. "Financial services" or "financial services-related" means securities, commodities, banking, insurance, consumer lending, or real estate, including, but not limited to, acting as or being associated with a bank or savings association, credit union, mortgage lender, mortgage broker, mortgage servicer, real estate salesperson or agent, closing agent, title company, or escrow agent.
VII. "First mortgage loan" means a loan secured in whole or in part by a mortgage upon any interest in real property used or intended to be used as a dwelling with accommodations for not more than 4 families, which property is not subject to the lien of any prior mortgage, and shall include retail installment contracts secured by manufactured housing as defined in RSA 205-A:1 and the renewal or refinancing of an existing first mortgage loan.
VIII. "Indirect owner" means, with respect to direct owners and other indirect owners in a multilayered organization:
(a) In the case of an owner that is a corporation, each of its shareholders that beneficially owns, has the right to vote, or has the power to sell or direct the sale of, 25 percent or more of that corporation.
(b) In the case of an owner that is a partnership, all general partners and those limited and special partners that have the right to receive upon dissolution, or have contributed, 25 percent or more of the partnership's capital.
(c) In the case of an owner that is a trust, the trust, each trustee, and each beneficiary of 25 percent or more of the trust.
(d) In the case of an owner that is a limited liability company ("LLC"):
(1) Those members that have the right to receive upon dissolution, or have contributed, 25 percent or more of the LLC's capital; and
(2) If managed by elected managers, all elected managers.
(e) In the case of an indirect owner, the parent owners of 25 percent or more of their subsidiary.
VIII-a. "Individual" means a natural person.
VIII-b. "Immediate family member" means a spouse, child, sibling, parent, grandparent, or grandchild. "Immediate family member" includes stepparents, stepchildren, stepsiblings, and adoptive relationships.
IX. "Lender" means any person that provides the initial funding for a mortgage and includes any legal successor to the rights of the lender. For the purpose of a table-funded transaction, the lender is the person who actually provides the funds for the transaction.
X. "Licensee" means a person, whether mortgage banker, mortgage broker, mortgage originator, or mortgage servicer, duly licensed by the commissioner pursuant to the provisions of this chapter.
XI. "Loan" means any loan of money or goods or forbearance of money and goods or choses in action.
XI-a. (a) "Loan processor" or "underwriter" means an individual who performs clerical or support duties as an employee of and at the direction of and subject to the supervision and instruction of a licensed mortgage banker, licensed mortgage broker, or licensed mortgage servicer.
(b) For purposes of this paragraph, "clerical or support duties" may include subsequent to the receipt of an application:
(1) The receipt, collection, distribution, and analysis of information common for the processing or underwriting of a residential mortgage loan; or
(2) Communicating with a consumer to obtain the information necessary for the processing or underwriting of a loan, to the extent that such communication does not include offering or negotiating loan rates or terms or counseling consumers about residential mortgage loan rates or terms.
(c) An individual engaging solely in loan processor or underwriter activities shall not represent to the public, through advertising or other means of communicating or providing information including the use of business cards, stationery, brochures, signs, rate lists, or other promotional items, that such individual can or will perform any of the activities of a mortgage loan originator.
XI-b. "Management level employee" means any officer of record, assistant vice president or higher, office or branch manager, director of operations, or other position the responsibilities of which provide such employee with the discretion or ability to set policy or manage or direct affairs of the licensee as a whole, or of any division or department or unit of the licensee.
XII. "Mortgage banker" means a person not exempt under RSA 397-A:4 who, for compensation or gain, or in the expectation of compensation or gain, whether such compensation or gain is direct or indirect:
(a) Makes or originates a mortgage loan as payee on the note evidencing the loan;
(b) Advances, or offers to advance, or makes or offers to make, a commitment to advance a banker's funds for a mortgage loan, or closes a mortgage loan in its own name or with the banker's funds; or
(c) Otherwise funds or offers to fund a mortgage loan.
XIII. "Mortgage broker" means a person not exempt under RSA 397-A:4 who for compensation or gain, or in the expectation of compensation or gain, either directly or indirectly:
(a) Acts or offers to act as an intermediary, finder, or agent of a lender or borrower for the purpose of negotiating, arranging, finding, or procuring mortgage loans, or commitments for mortgage loans.
(b) Offers to serve as agent for any person in an attempt to obtain a mortgage loan.
(c) Offers to serve as agent for any person who has money to lend for a mortgage loan.
XIII-a. "Mortgage lender" means a mortgage banker.
XIV. "Mortgage loan" or "residential mortgage loan" means any loan, including a first or second mortgage loan, primarily for personal, family, or household use which is secured in whole or in part by a mortgage, deed of trust, or other equivalent consensual security interest upon a dwelling or any interest in real property or in residential real estate.
XIV-a. "Mortgage servicing company" or "mortgage servicer" means an individual, partnership, corporation, association, or other entity however organized and wherever located which, for itself or on behalf of the holder of a mortgage loan, holds the servicing rights or records such payments on its books and records and performs such other administrative functions as may be necessary to properly carry out the mortgage holders obligations under the mortgage agreement including, when applicable, the receipt of funds from the mortgagor to be held in escrow for payment of real estate taxes and insurance premiums and the distribution of such funds to the taxing authority and insurance company.
XIV-b. "Nationwide Multistate Licensing System and Registry" means a national licensing system and facility developed and maintained by the Conference of State Bank Supervisors and the American Association of Residential Mortgage Regulators, or their successors, for the licensing and registration of mortgage loan originators, mortgage lenders, mortgage servicers, and mortgage brokers or any similar system established by the Secretary of the United States Department of Housing and Urban Development.
XIV-c. "Nontraditional mortgage product" means any mortgage product other than a 30-year fixed-rate mortgage.
XV. "Note" means the instrument, other than the mortgage, evidencing or containing the debt secured by the mortgage, or any renewal or refinancing of such instrument.
XVI. "Open end credit" means a plan prescribing the terms of credit transactions which may be made thereunder from time to time and under the terms of which a finance charge may be charged from time to time on an outstanding unpaid balance.
XVII. (a) "Originator" or "mortgage loan originator" or "mortgage originator" or "loan originator" means an individual who for direct or indirect compensation or gain or in the expectation of direct or indirect compensation or gain, takes a mortgage application or offers, negotiates, solicits, arranges, or finds a mortgage loan or who offers or negotiates terms of a residential mortgage loan. Mortgage loan originator does not include:
(1) An individual engaged solely as a loan processor or underwriter except as otherwise provided in RSA 397-A:3, VIII;
(2) An individual engaged solely in loan modification activities not resulting in a new extension of credit;
(3) A person that only performs real estate brokerage activities and is licensed or registered in accordance with applicable state law, unless the person or entity is compensated by a lender, a mortgage broker, mortgage servicer, or other mortgage loan originator or by any agent of such lender, mortgage broker, mortgage servicer, or other mortgage loan originator;
(4) A person solely involved in extensions of credit relating to timeshare plans, as that term is defined in 11 U.S.C. Section 101(53D); and
(5) Any individual who is not otherwise described in subparagraph (a) and who performs purely administrative or clerical tasks as an employee at the direction of and subject to the supervision and instruction of a licensed person who is described in subparagraph (a).
(b) For purposes of this paragraph, "takes a mortgage application" means:
(1) Recording the borrower's application information in any form for use in a credit decision; or
(2) Receiving the borrower's application information in any form for use in a credit decision.
XVIII. "Person" means an individual, corporation, business trust, estate, trust, partnership, association, 2 or more persons having a joint or common interest, or any other legal or commercial entity however organized.
XIX. "Principal" of the applicant or licensee means an owner with 10 percent or more ownership interest, corporate officer, director, member, general or limited liability partner, limited partner with 10 percent or more ownership interest, trustee, beneficiary of 10 percent or more of the trust that owns the applicant or licensee, indirect owner, senior manager, branch manager of a location required to be licensed as a branch office under this chapter, and any person occupying similar status or performing similar functions.
XX. "Principal office" means the main office location of a person required to be licensed under this chapter.
XX-a. "Publicly traded" means a company whose securities are traded on a securities exchange system approved and supervised by the Securities and Exchange Commission, including but not limited to the NYSE, AMEX, BSE, and NASDAQ. The term also includes a public reporting company that is subject to sections 12 or 15(d) of the Securities Exchange Act of 1934.
XX-b. "Real estate brokerage activity" means, for purposes of this chapter only, any activity that involves offering or providing real estate brokerage services to the public, including:
(a) Acting as a real estate agent or real estate broker for a buyer, seller, lessor, or lessee of real property;
(b) Bringing together parties interested in the sale, purchase, lease, rental, or exchange of real property;
(c) Negotiating, on behalf of any party, any portion of a contract relating to the sale, purchase, lease, rental, or exchange of real property other than in connection with providing financing with respect to any such transaction;
(d) Engaging in any activity for which a person engaged in the activity is required to be registered or licensed as a real estate agent or real estate broker under any applicable law; and
(e) Offering to engage in any activity, or act in any capacity, described in subparagraph (a), (b), (c), or (d).
XXI. "Real property" means a dwelling or land and the improvements which are affixed thereon or are intended to be affixed thereon, including, but not limited to, single-family homes and multifamily dwellings not exceeding 4 units, wholly or partly used or occupied, or intended to be used or occupied, as the home or residence of one or more persons.
XXI-a. "Registered mortgage loan originator" means any individual who:
(a) Meets the definition of mortgage loan originator and is an employee of:
(1) A depository institution;
(2) A subsidiary that is:
(A) Owned and controlled by a depository institution; and
(B) Regulated by a federal banking agency; or
(3) An institution regulated by the Farm Credit Administration; and
(b) Is registered with, and maintains a unique identifier through, the Nationwide Multistate Licensing System and Registry as required by the federal banking agencies.
XXI-b. "Residential real estate" means any real property located in New Hampshire, upon which is constructed or intended to be constructed a dwelling.
XXI-c. "Reverse mortgage" means a mortgage loan generally available to seniors, usually 62 years of age and older, in which a mortgage, deed of trust, or equivalent consensual security interest securing one or more advances is created in the consumer's dwelling and the payment stream for principal, interest, shared appreciation, or equity is not due and payable until a maturity event or default occurs or any similar debt instrument as the commissioner determines.
XXII. "Second mortgage loan" means a loan secured in whole or in part by a mortgage upon any interest in real property used or intended to be used as a dwelling with accommodations for not more than 4 families, which property is subject to the lien of one or more prior mortgages, and shall include home equity loans and the renewal or refinancing of an existing second mortgage loan.
XXIII. "Secondary market" means the market where lenders and investors buy and sell existing mortgages or mortgage-backed securities.
XXIII-a. "Senior manager" means a management level employee.
XXIII-b. "Significant event" means:
(a) Filing for bankruptcy or reorganization;
(b) Criminal felony indictment or conviction of any of the licensee's principals;
(c) Receiving notification of a license denial, cease and desist, consent agreement or order, suspension, or revocation, or any other formal administrative action in any state against the licensee;
(d) Receiving notification of any enforcement action or investigation by the attorney general of the state of New Hampshire or of any other state pursuant to any consumer protection statute, and the reasons therefor, except routine investigations of consumer complaints; or
(e) Entering into a consent agreement, settlement agreement, memorandum of understanding, or similar agreement with any regulatory body pertaining to the licensee's practices.
XXIV. "Table funding" means a settlement at which a loan is funded by a contemporaneous advance of loan funds and an assignment of a loan to the person advancing the funds. A table-funded transaction is not a secondary market transaction.
XXV. "Unique identifier" means a number or other identifier assigned by protocols established by the Nationwide Multistate Licensing System and Registry.
Source. 2016, 289:1, eff. Aug. 20, 2016. 2018, 196:3, 14, eff. Aug. 7, 2018. 2019, 36:5, eff. May 15, 2019.