1997 Wisconsin Act 145

145,40 Section 40 . 224.75 (1) (c) (intro.) of the statutes is amended to read:

224.75 (1) (c) Loan application documents. (intro.) A mortgage banker or loan solicitor mortgage broker shall maintain for each mortgage loan application all of the following documents, if used by the mortgage banker or loan solicitor mortgage broker in connection with the mortgage loan application file:

145,41 Section 41 . 224.75 (1) (d) of the statutes is created to read:

224.75 (1) (d) Loan servicing records and documents. A mortgage banker shall maintain for each mortgage loan serviced by the mortgage banker a copy of or a record of all correspondence relating to the loan.

145,42 Section 42 . 224.75 (2) of the statutes is amended to read:

224.75 (2) Period of record retention. A mortgage banker or loan solicitor mortgage broker shall keep for at least 25 months copies of all deposit receipts, canceled checks, trust account records, the records which a mortgage banker or loan solicitor mortgage broker maintains under sub. (1) (c) or (d) and other relevant documents or correspondence received or prepared by the mortgage banker or loan solicitor mortgage broker in connection with a loan or loan application. The retention period begins on the date the loan is closed or, if the loan is not closed, the date of loan application. If the loan is serviced by a mortgage banker, the retention period commences on the date that the loan is paid in full. The mortgage banker or loan solicitor mortgage broker shall make the records available for inspection and copying by the department division. If the records are not kept within this state, the mortgage banker or loan solicitor mortgage broker shall, upon request of the department division, promptly send exact and complete copies of requested records to the department division.

145,43 Section 43 . 224.75 (3) of the statutes is amended to read:

224.75 (3) Contents of credit and appraisal reports. (a) Credit report. If a mortgage banker or loan solicitor mortgage broker charges a loan applicant a separate fee for a credit report, the credit report shall consist, at a minimum, of a written statement indicating the name of the credit reporting agency which investigated the credit history of the applicant.

(b) Appraisal report. If a mortgage banker or loan solicitor mortgage broker charges a loan applicant a separate fee for an appraisal report, the appraisal report shall consist, at a minimum, of a written statement indicating the appraiser's opinion of the value of the property appraised for mortgage loan purposes, the basis for that opinion and the name of the person who conducted the appraisal. If requested by a loan applicant, a mortgage banker or mortgage broker shall provide the loan applicant with a copy of any written appraisal report held by the mortgage banker or mortgage broker, if the loan applicant paid a fee for the report and the report relates to residential real estate that the loan applicant owns or has agreed to purchase.

145,44 Section 44 . 224.75 (4) of the statutes is amended to read:

224.75 (4) Responsibility for forms. A mortgage banker or loan solicitor mortgage broker is responsible for the preparation and correctness of all entries on forms, documents and records which are under the mortgage banker's or loan solicitor's mortgage broker's control and which are not dependent on information provided by the loan applicant or a 3rd party.

145,45 Section 45 . 224.75 (5) of the statutes is amended to read:

224.75 (5) Accounting practices. A mortgage banker or loan solicitor mortgage broker shall maintain its books and records in accordance with generally accepted accounting principles.

145,46 Section 46 . 224.76 of the statutes is amended to read:

224.76 (title) Mortgage banker, loan originator and loan solicitor mortgage broker trust accounts. A mortgage banker, loan originator or loan solicitor mortgage broker shall deposit in one or more trust accounts all funds other than nonrefundable fees which it receives on behalf of any person, pending disbursement of the funds in accordance with instructions from the person on whose behalf the funds are deposited. A mortgage banker or loan solicitor may mortgage broker shall maintain trust accounts in a bank, savings bank, savings and loan association or credit union which is authorized to do business in this state or which is federally chartered whose accounts are insured by the Federal Deposit Insurance Corporation or the National Credit Union Administration. The mortgage banker or loan solicitor mortgage broker shall notify the department division of the location of its trust accounts and shall authorize the department to examine and audit any trust account as the department considers it necessary.

145,47 Section 47 . 224.77 (title) of the statutes is amended to read:

224.77 (title) Discipline of mortgage bankers, loan originators and loan solicitors mortgage brokers.

145,48 Section 48 . 224.77 (1) (intro.) of the statutes is amended to read:

224.77 (1) Prohibited conduct. (intro.) The department division may deny an application submitted to it under s. 224.72, or may revoke, suspend or limit the certificate of registration of a mortgage banker, loan originator or loan solicitor mortgage broker, or may reprimand a mortgage banker, loan originator or loan solicitor mortgage broker, if it finds that the mortgage banker, loan originator or loan solicitor mortgage broker did any of the following:

145,49 Section 49 . 224.77 (1) (a) of the statutes is amended to read:

224.77 (1) (a) Made a material misstatement in an application for registration, or in information furnished to the department division.

145,50 Section 50 . 224.77 (1) (e) of the statutes is amended to read:

224.77 (1) (e) Acted for more than one party in a transaction without the knowledge and consent of all parties on whose behalf the mortgage banker, loan originator or loan solicitor mortgage broker is acting.

145,51 Section 51 . 224.77 (1) (f) of the statutes is amended to read:

224.77 (1) (f) Accepted a commission, money or other thing of value for performing an act as a loan originator unless the payment is from a mortgage banker or mortgage broker who is registered under s. 224.72 (3) as employing the loan originator.

145,52 Section 52 . 224.77 (1) (h) of the statutes is amended to read:

224.77 (1) (h) Failed, within a reasonable time, to account for or remit any moneys coming into the mortgage banker's, loan originator's or loan solicitor's mortgage broker's possession which belong to another person.

145,53 Section 53 . 224.77 (1) (i) of the statutes is amended to read:

224.77 (1) (i) Demonstrated a lack of competency to act as a mortgage banker, loan originator or loan solicitor mortgage broker in a way which safeguards the interests of the public.

145,54 Section 54 . 224.77 (1) (k) of the statutes is amended to read:

224.77 (1) (k) Violated any provision of this subchapter, ch. 138 or any federal or state statute, rule or regulation which relates to practice as a mortgage banker, loan originator or loan solicitor mortgage broker.

145,55 Section 55 . 224.77 (1) (L) of the statutes is amended to read:

224.77 (1) (L) Engaged in conduct which violates a standard of professional behavior which, through professional experience, has become established for mortgage bankers, loan originators or loan solicitors mortgage brokers.

145,56 Section 56 . 224.77 (1) (o) of the statutes is amended to read:

224.77 (1) (o) In the course of practice as a mortgage banker, loan originator or loan solicitor mortgage broker, except in relation to housing designed to meet the needs of elderly individuals, treated a person unequally solely because of sex, race, color, handicap, sexual orientation, as defined in s. 111.32 (13m), religion, national origin, age or ancestry, the person's lawful source of income, or the sex or marital status of the person maintaining a household.

145,57 Section 57 . 224.77 (1) (r) of the statutes is created to read:

224.77 (1) (r) Failed to notify the division that the mortgage banker's or mortgage broker's net worth fell below the minimum amount required under s. 224.72 (4) (a) 4. or (d) 2. or (4m) (a) 3. or (b) 2., if the mortgage banker or mortgage broker had qualified for registration under s. 224.72 (4) (a) 4. or (d) or (4m) (a) 3. or (b).

145,58 Section 58 . 224.77 (1m) of the statutes is created to read:

224.77 (1m) Administrative forfeiture and hearing rights. (a) The division may assess against a person who is registered under this chapter a forfeiture of not more than $1,000 for each violation enumerated under sub. (1) (a) to (o) or (r).

(b) A person may contest an assessment of forfeiture under par. (a) by sending, within 10 days after receipt of notice of the assessment under par. (a), a written request for hearing under s. 227.44 to the division of hearings and appeals created under s. 15.103 (1). The administrator of the division of hearings and appeals may designate a hearing examiner to preside over the case and recommend a decision to the administrator under s. 227.46. The decision of the administrator of the division of hearings and appeals shall be the final administrative decision. The division of hearings and appeals shall commence the hearing within 30 days after receipt of the request for hearing and shall issue a final decision within 15 days after the close of the hearing. Proceedings before the division of hearings and appeals are governed by ch. 227. In any petition for judicial review of a decision by the division of hearings and appeals, the party, other than the petitioner, who was in the proceeding before the division of hearings and appeals shall be the named respondent.

(c) All forfeitures shall be paid to the division of banking within 10 days after receipt of notice of assessment or, if the forfeiture is contested under par. (b), within 10 days after receipt of the final decision after exhaustion of administrative review. The division of banking shall remit all forfeitures paid to the state treasurer for deposit in the school fund.

(d) The attorney general may bring an action in the name of the state to collect any forfeiture imposed under this subsection if the forfeiture has not been paid following the exhaustion of all administrative and judicial reviews. The only issue to be contested in any such action shall be whether the forfeiture has been paid.

145,59 Section 59 . 224.77 (2) of the statutes is amended to read:

224.77 (2) Conduct of officers, directors and others. The department division may revoke, suspend or limit a certificate of registration issued under this subchapter or reprimand a mortgage banker or loan solicitor mortgage broker registered under this subchapter, if a director, officer, trustee, partner or member of the mortgage banker or loan solicitor mortgage broker or a person who has a financial interest in or is in any way connected with the operation of the mortgage banker's or loan solicitor's mortgage broker's business is guilty of an act or omission which would be cause for refusing to issue a certificate of registration to that individual.

145,60 Section 60 . 224.77 (3) of the statutes is amended to read:

224.77 (3) (title) Orders of the department division. (a) Orders to prevent or correct actions. The department division may issue general and special orders necessary to prevent or correct actions by a mortgage banker, loan originator or loan solicitor mortgage broker that constitute cause under this section for revoking, suspending or limiting a certificate of registration.

(b) Types of special orders. Special orders may direct a mortgage banker, loan originator or loan solicitor mortgage broker to cease and desist from engaging in a particular activity or may direct the mortgage banker, loan originator or loan solicitor mortgage broker to refund or remit to a loan applicant or borrower amounts that the mortgage banker, loan originator or loan solicitor mortgage broker got from actions which constitute cause under this section for revoking, suspending or limiting a certificate of registration.

(c) Judicial review. Orders of the department division are subject to review as provided in ch. 227.

145,61 Section 61 . 224.77 (3m) of the statutes is created to read:

224.77 (3m) Hearing rights for registration denial, revocation or suspension. A person whose certificate of registration has been denied, revoked or suspended under this section may request a hearing under s. 227.44 within 30 days after the date of denial, revocation or suspension of the certificate of registration. The division may appoint a hearing examiner under s. 227.46 to conduct the hearing.

145,62 Section 62 . 224.77 (4) of the statutes is amended to read:

224.77 (4) Period of disciplinary action; ineligibility for registration. (a) Period. Except as provided in par. (b), the department division shall determine in each case the period that a revocation, suspension or limitation of a certificate of registration is effective.

(b) Ineligibility. 1. Except as provided in subd. 2., if the department division denies or revokes a certificate of registration under sub. (1), the person is not eligible for a certificate of registration until the expiration of a period which may not exceed 2 years after the effective date of the revocation determined in each case by the division.

2. If the department division revokes a certificate of registration under sub. (1) (p) or (q), the person is not eligible for a certificate of registration until 5 years after the effective date of the revocation.

145,63 Section 63 . 224.77 (5) (a) of the statutes is amended to read:

224.77 (5) (a) Mandatory revocation or suspension. Notwithstanding sub. (1) (intro.) and (4), if the department division finds that a mortgage banker, loan originator or loan solicitor mortgage broker has violated sub. (1) (p) or (q), the department division shall:

1. For the first offense, suspend the registration of the mortgage banker, loan originator or loan solicitor mortgage broker for not less than 90 days.

2. For the 2nd offense, revoke the registration of the mortgage banker, loan originator or loan solicitor mortgage broker.

145,64 Section 64 . 224.77 (6) of the statutes is created to read:

224.77 (6) Voluntary surrender. A mortgage banker, loan originator or mortgage broker may voluntarily surrender a registration to the division, but the division may refuse to accept the surrender if the division has received allegations of unprofessional conduct against the mortgage banker, loan originator or mortgage broker. The division may negotiate stipulations in consideration for accepting the surrender of registration.

145,65 Section 65 . 224.78 of the statutes is amended to read:

224.78 Fee splitting. A mortgage banker, loan originator or loan solicitor mortgage broker may not pay a person who is not registered under this subchapter a commission, money or other thing of value for performing an act as a mortgage banker, loan originator or loan solicitor mortgage broker.

145,66 Section 66 . 224.80 (2) (intro.) of the statutes is amended to read:

224.80 (2) Private cause of action. (intro.) A person who is aggrieved by an act which is committed by a mortgage banker, loan originator or loan solicitor mortgage broker and which is described in s. 224.77 (1) may recover all of the following in a private action:

145,67 Section 67 . 224.81 of the statutes is amended to read:

224.81 Limitation on actions for commissions and other compensation. A person who is engaged in the business or acting in the capacity of a mortgage banker, loan originator or loan solicitor mortgage broker in this state may not bring or maintain an action in this state to collect a commission, money or other thing of value for performing an act as a mortgage banker, loan originator or loan solicitor mortgage broker without alleging and proving that the person was registered under this subchapter as a mortgage banker, loan originator or loan solicitor mortgage broker when the alleged cause of action arose.

145,68 Section 68 . 224.82 of the statutes is amended to read:

224.82 Compensation presumed. In a prosecution arising from a violation of this subchapter, proof that a person acted as a mortgage banker, loan originator or loan solicitor mortgage broker is sufficient, unless rebutted, to establish that compensation was received by, or promised to, that person.

145,69 Section 69 . 422.501 (2) (b) 8. of the statutes is amended to read:

422.501 (2) (b) 8. A person registered as a mortgage banker, loan originator or loan solicitor mortgage broker under s. 224.72 if the person is acting within the course and scope of that registration.

145,70 Section 70 . 708.10 (1) (c) of the statutes, as affected by 1997 Wisconsin Act 35, is amended to read:

708.10 (1) (c) “Lender" means all lenders identified under s. 706.11 (1), loan solicitors mortgage brokers, as defined under s. 224.71 (2) (4), and savings and loan associations organized under ch. 215, except that “lender" does not include any federal, state or local unit of government or any agency, political subdivision or instrumentality of such a unit of government.

145,71 Section 71 . 943.62 (2m) of the statutes is amended to read:

943.62 (2m) This section does not apply to a savings and loan association, credit union, bank, savings bank, or a mortgage banker, loan originator or loan solicitor mortgage broker registered under s. 224.72.

145,72 Section 72 . Nonstatutory provisions.

(1) Emergency rule-making authority. Using the procedure under section 227.24 of the statutes, the division of banking shall promulgate rules required under sections 224.72 (8) and 224.73 (3) of the statutes, as affected by this act, for the period before permanent rules become effective, but not to exceed the period authorized under section s. 227.24 (1) (c) and (2) of the statutes. Notwithstanding section 227.24 (1) (a) and (2) (b) of the statutes, the division need not provide evidence of the necessity of preservation of the public peace, health, safety or welfare in promulgating rules under this subsection.

145,73 Section 73 . Initial applicability.

(1) Registration of persons who engage in table funding. The treatment of section 224.71 (2) (with respect to engaging in table funding) and (5) of the statutes first applies to table funding that occurs on the effective date of this subsection.

(2) Other registration provisions. The treatment of sections 224.70, 224.71 (1b), (1c), (1r) (a) and (b), (2) (except with respect to engaging in table funding) and (3) (a) 3. and (b) 6., 224.72 (title), (1m), (2) (intro.) and (b), (3), (4) (intro.), (b), (c) and (d), (4m), (4n), (4r), (5) (a), (b) 1. and 2., (7), (8), 224.73, 224.74 (title), (1), (2) (a) and (b), 224.75 (title), (1) (title), (a), (b) (intro.), (c) (intro.) and (d), (2), (3), (4) and (5), 224.76, 224.77 (title), (1) (intro.), (a), (e), (f), (h), (i), (k), (L), (o) and (r), (1m), (2), (3), (3m), (4), (5) (a) and (6), 224.78, 224.80 (2) (intro.), 224.81, 224.82, 422.501 (2) (b) 8., 708.10 (1) (c) and 943.62 (2m) and subchapter II (title) of chapter 224 of the statutes, the renumbering and amendment of section 224.72 (4) (a) of the statutes and the creation of section 224.72 (4) (a) 1. a. to d. and 3. of the statutes first apply with respect to initial or renewal applications for a registration period after January 1, 1999.