Jurris.COM
Article 1. Definitions of California Financial Code >> Division 9. >> Chapter 1. >> Article 1.
This division is known and may be cited as the "California
Finance Lenders Law."
(a) This division shall be liberally construed and applied
to promote its underlying purposes and policies, which are:
(1) To ensure an adequate supply of credit to borrowers in this state.
(2) To simplify, clarify, and modernize the law governing loans made by finance lenders.
(3) To foster competition among finance lenders.
(4) To protect borrowers against unfair practices by some lenders, having due regard for the interests of legitimate and scrupulous lenders.
(5) To permit and encourage the development of fair and economically sound lending practices.
(6) To encourage and foster a sound economic climate in this state.
(b) Consumer loans, as defined in Sections 22203 and 22204, are subject to this chapter, Chapter 2 (commencing with Section 22200), Article 1 (commencing with Section 22700) of Chapter 4, and Article 2 (commencing with Section 22750) of Chapter 4.
(c) Commercial loans, as defined in Section 22502, are subject to this chapter, Chapter 3 (commencing with Section 22500), Article 1 (commencing with Section 22700) of Chapter 4, and Article 3 (commencing with Section 22780) of Chapter 4.
(1) To ensure an adequate supply of credit to borrowers in this state.
(2) To simplify, clarify, and modernize the law governing loans made by finance lenders.
(3) To foster competition among finance lenders.
(4) To protect borrowers against unfair practices by some lenders, having due regard for the interests of legitimate and scrupulous lenders.
(5) To permit and encourage the development of fair and economically sound lending practices.
(6) To encourage and foster a sound economic climate in this state.
(b) Consumer loans, as defined in Sections 22203 and 22204, are subject to this chapter, Chapter 2 (commencing with Section 22200), Article 1 (commencing with Section 22700) of Chapter 4, and Article 2 (commencing with Section 22750) of Chapter 4.
(c) Commercial loans, as defined in Section 22502, are subject to this chapter, Chapter 3 (commencing with Section 22500), Article 1 (commencing with Section 22700) of Chapter 4, and Article 3 (commencing with Section 22780) of Chapter 4.
To accomplish its underlying purposes and policies, this
division creates a class of exempt persons pursuant to Section 1 of
Article XV of the California Constitution.
It is the intent of the Legislature to preserve existing
exemptions under Section 1 of Article XV of the Constitution and
statutory law for (a) personal property brokers formerly regulated by
the Personal Property Brokers Law; (b) lenders formerly regulated by
the Consumer Finance Lenders Law; and (c) lenders formerly regulated
by the Commercial Finance Lenders Law; and no finding that any
provision of this division is invalid with respect to a particular
lender or class of lenders shall affect the enforceability of this
division with respect to any of the foregoing classifications of
lenders, which shall in all events continue to be exempted by this
division.
Unless the context otherwise requires, the definitions given
in this article govern the construction of this division.
"Broker" includes any person who is engaged in the business
of negotiating or performing any act as broker in connection with
loans made by a finance lender.
"Commissioner" means the Commissioner of Business Oversight.
As used in this division, the terms "security interest,"
"accounts," "chattel paper," "documents," "general intangibles,"
"goods," and "instruments" are as defined in the Uniform Commercial
Code.
"Licensee" means any finance lender or broker who receives a
license in accordance with this division.
"Person" means an individual, a corporation, a partnership,
a limited liability company, a joint venture, an association, a joint
stock company, a trust, an unincorporated organization, a
government, or a political subdivision of a government.
"Finance lender" includes any person who is engaged in the
business of making consumer loans or making commercial loans. The
business of making consumer loans or commercial loans may include
lending money and taking, in the name of the lender, or in any other
name, in whole or in part, as security for a loan, any contract or
obligation involving the forfeiture of rights in or to personal
property, the use and possession of which property is retained by
other than the mortgagee or lender, or any lien on, assignment of, or
power of attorney relative to wages, salary, earnings, income, or
commission.
It is the intent of the Legislature that the definition of finance
lender shall be interpreted to include a personal property broker as
referenced in Section 1 of Article XV of the California
Constitution.
"Finance lender" and "broker" do not include employees
regularly employed at the location specified in the license of the
finance lender or broker, except that an employee, when acting within
the scope of his or her employment, shall be exempt from any other
law from which his or her employer is exempt.
A "regulatory ceiling provision" is a statement in a section
or subdivision that specifies an original bona fide principal loan
amount at or above which that section or subdivision does not apply
to a loan.
(a) "Branch office license" means a license to engage in
business as a finance lender or broker at a location other than the
location identified in a finance lender or broker license application
or amended application.
(b) "Depository institution" has the same meaning as in Section 3 of the Federal Deposit Insurance Act, and includes any credit union.
(c) "Federal banking agencies" 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, and the Federal Deposit Insurance Corporation.
(d) "Nationwide Mortgage Licensing System and Registry" means a mortgage licensing system developed and maintained by the Conference of State Bank Supervisors and the American Association of Residential Mortgage Regulators for the licensing and registration of licensed mortgage loan originators.
(e) "Residential mortgage loan" means any loan primarily for personal, family, or household use that is secured by a mortgage, deed of trust, or other equivalent consensual security interest on a dwelling, as defined in Section 103(v) of the federal Truth in Lending Act, or residential real estate upon which is constructed or intended to be constructed a dwelling. "Dwelling" means a residential structure that contains one to four units, whether or not that structure is attached to real property. The term includes an individual condominium unit, cooperative unit, mobilehome, or trailer, if it is used as a residence.
(f) "SAFE Act" means the federal Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (Public Law 110-289).
(g) "Unique identifier" means a number or other identifier assigned by protocols established by the Nationwide Mortgage Licensing System and Registry.
(h) For purposes of Sections 22109.2, 22109.3, and 22109.5, "nontraditional mortgage product" means any mortgage product other than a 30-year fixed rate mortgage.
(i) For purposes of Section 22109.1, "expungement" means the subsequent order under the provisions of Section 1203.4 of the Penal Code allowing such individual to withdraw his or her plea of guilty and to enter a plea of not guilty, or setting aside the verdict of guilty or dismissing the accusation, information, or indictment. With respect to criminal convictions in another state, that state's definition of expungement will apply.
(b) "Depository institution" has the same meaning as in Section 3 of the Federal Deposit Insurance Act, and includes any credit union.
(c) "Federal banking agencies" 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, and the Federal Deposit Insurance Corporation.
(d) "Nationwide Mortgage Licensing System and Registry" means a mortgage licensing system developed and maintained by the Conference of State Bank Supervisors and the American Association of Residential Mortgage Regulators for the licensing and registration of licensed mortgage loan originators.
(e) "Residential mortgage loan" means any loan primarily for personal, family, or household use that is secured by a mortgage, deed of trust, or other equivalent consensual security interest on a dwelling, as defined in Section 103(v) of the federal Truth in Lending Act, or residential real estate upon which is constructed or intended to be constructed a dwelling. "Dwelling" means a residential structure that contains one to four units, whether or not that structure is attached to real property. The term includes an individual condominium unit, cooperative unit, mobilehome, or trailer, if it is used as a residence.
(f) "SAFE Act" means the federal Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (Public Law 110-289).
(g) "Unique identifier" means a number or other identifier assigned by protocols established by the Nationwide Mortgage Licensing System and Registry.
(h) For purposes of Sections 22109.2, 22109.3, and 22109.5, "nontraditional mortgage product" means any mortgage product other than a 30-year fixed rate mortgage.
(i) For purposes of Section 22109.1, "expungement" means the subsequent order under the provisions of Section 1203.4 of the Penal Code allowing such individual to withdraw his or her plea of guilty and to enter a plea of not guilty, or setting aside the verdict of guilty or dismissing the accusation, information, or indictment. With respect to criminal convictions in another state, that state's definition of expungement will apply.
(a) "Mortgage loan originator" means an individual who, for
compensation or gain, or in the expectation of compensation or gain,
takes a residential mortgage loan application or offers or negotiates
terms of a residential mortgage loan.
(b) Mortgage loan originator does not include any of the following:
(1) An individual who performs purely administrative or clerical tasks on behalf of a person meeting the definition of a mortgage loan originator, except as provided in subdivision (c) of Section 22014. The term "administrative or clerical tasks" means the receipt, collection, and distribution of information common for the processing or underwriting of a loan in the mortgage industry and communication with a consumer to obtain information necessary for the processing or underwriting of a residential mortgage loan, to the extent that the communication does not include offering or negotiating loan rates or terms, or counseling consumers about residential mortgage loan rates or terms.
(2) An individual who solely renegotiates terms for existing mortgage loans held or serviced by his or her employer and who does not otherwise act as a mortgage loan originator, unless the United States Department of Housing and Urban Development or a court of competent jurisdiction determines that the SAFE Act requires such an employee to be licensed as a mortgage loan originator under state laws implementing the SAFE Act.
(3) An individual that is solely involved in extensions of credit relating to timeshare plans, as that term is defined in Section 101 (53D) of Title 11 of the United States Code.
(4) An individual licensed as a mortgage loan originator pursuant to the provisions of Article 2.1 (commencing with Section 10166.01) of Chapter 3 of Part 1 of Division 4 of the Business and Professions Code and the SAFE Act.
(5) An individual who is an employee of a federal, state, or local government agency or housing finance agency and who acts as a loan originator only pursuant to his or her official duties as an employee of the federal, state, or local government agency or housing finance agency.
(A) For purposes of this paragraph, the term "employee" means an individual whose manner and means of performance of work are subject to the right of control of, or are controlled by, a person, and whose compensation for federal income tax purposes is reported, or required to be reported, on a W-2 form issued by the controlling person.
(B) For purposes of this paragraph, the term "housing finance agency" means any authority:
(i) That is chartered by a state to help meet the affordable housing needs of the residents of the state.
(ii) That is supervised directly or indirectly by the state government.
(iii) That is subject to audit and review by the state in which it operates.
(6) (A) An employee of a bona fide nonprofit organization who exclusively originates residential mortgage loans for a bona fide nonprofit organization, and who acts as a mortgage loan originator only with respect to residential mortgage loans with terms that are favorable to the borrower.
(B) To qualify for the exemption under this paragraph, the bona fide nonprofit organization under this paragraph must register with the department on a form prescribed by the commissioner, along with documentation of all of the following by December 31 of each year:
(i) Status of a tax-exempt organization under Section 501(c)(3) of the Internal Revenue Code of 1986.
(ii) That the organization promotes affordable housing or provides home ownership education or similar services.
(iii) That the organization conducts its activities in a manner that serves public or charitable purposes, rather than commercial purposes.
(iv) That the organization receives funding and revenue, and charges fees in a manner that does not incentivize the organization or its employees to act other than in the best interests of its clients.
(v) That the organization compensates employees in a manner that does not incentivize employees to act other than in the best interests of its clients.
(vi) That the organization provides to, or identifies for, the borrower residential mortgage loans with terms favorable to the borrower and comparable to mortgage loans and housing assistance provided under government housing assistance programs.
(vii) That the organization is certified by the United States Department of Housing and Urban Development as a housing counselor who engages solely in traditional housing counseling services, if applicable.
(C) The commissioner may periodically require reports regarding the activities of the bona fide nonprofit organization, and shall examine the nonprofit organization's books and records in accordance with the regulations of the United States Department of Housing and Urban Development, or any successor guidance or requirement by the Consumer Financial Protection Bureau. If the nonprofit organization fails to provide documentation as required by subparagraph (B), or if it does not continue to meet the criteria under subparagraph (B), the commissioner may revoke the nonprofit organization's status as a registered bona fide nonprofit organization.
(D) For residential mortgage loans to have terms that are favorable to the borrower, the terms shall be consistent with loan origination in a public or charitable context, rather than a commercial context.
(E) In making its determinations and examinations, the commissioner may rely on the receipt and review of:
(i) Reports filed with federal, state, or local housing agencies and authorities.
(ii) Reports and attestations prescribed by the commissioner by rule or order.
(c) "Registered mortgage loan originator" means any individual who is all of the following:
(1) Meets the definition of mortgage loan originator.
(2) Is an employee of a depository institution, a subsidiary that is owned and controlled by a depository institution and regulated by a federal banking agency, or an institution regulated by the Farm Credit Administration.
(3) Is registered with, and maintains a unique identifier through, the Nationwide Mortgage Licensing System and Registry.
(d) "Loan processor or underwriter" means an individual who performs clerical or support duties as an employee at the direction of, and subject to the supervision and instruction of, a mortgage loan originator licensed by the state or a registered mortgage loan originator.
(b) Mortgage loan originator does not include any of the following:
(1) An individual who performs purely administrative or clerical tasks on behalf of a person meeting the definition of a mortgage loan originator, except as provided in subdivision (c) of Section 22014. The term "administrative or clerical tasks" means the receipt, collection, and distribution of information common for the processing or underwriting of a loan in the mortgage industry and communication with a consumer to obtain information necessary for the processing or underwriting of a residential mortgage loan, to the extent that the communication does not include offering or negotiating loan rates or terms, or counseling consumers about residential mortgage loan rates or terms.
(2) An individual who solely renegotiates terms for existing mortgage loans held or serviced by his or her employer and who does not otherwise act as a mortgage loan originator, unless the United States Department of Housing and Urban Development or a court of competent jurisdiction determines that the SAFE Act requires such an employee to be licensed as a mortgage loan originator under state laws implementing the SAFE Act.
(3) An individual that is solely involved in extensions of credit relating to timeshare plans, as that term is defined in Section 101 (53D) of Title 11 of the United States Code.
(4) An individual licensed as a mortgage loan originator pursuant to the provisions of Article 2.1 (commencing with Section 10166.01) of Chapter 3 of Part 1 of Division 4 of the Business and Professions Code and the SAFE Act.
(5) An individual who is an employee of a federal, state, or local government agency or housing finance agency and who acts as a loan originator only pursuant to his or her official duties as an employee of the federal, state, or local government agency or housing finance agency.
(A) For purposes of this paragraph, the term "employee" means an individual whose manner and means of performance of work are subject to the right of control of, or are controlled by, a person, and whose compensation for federal income tax purposes is reported, or required to be reported, on a W-2 form issued by the controlling person.
(B) For purposes of this paragraph, the term "housing finance agency" means any authority:
(i) That is chartered by a state to help meet the affordable housing needs of the residents of the state.
(ii) That is supervised directly or indirectly by the state government.
(iii) That is subject to audit and review by the state in which it operates.
(6) (A) An employee of a bona fide nonprofit organization who exclusively originates residential mortgage loans for a bona fide nonprofit organization, and who acts as a mortgage loan originator only with respect to residential mortgage loans with terms that are favorable to the borrower.
(B) To qualify for the exemption under this paragraph, the bona fide nonprofit organization under this paragraph must register with the department on a form prescribed by the commissioner, along with documentation of all of the following by December 31 of each year:
(i) Status of a tax-exempt organization under Section 501(c)(3) of the Internal Revenue Code of 1986.
(ii) That the organization promotes affordable housing or provides home ownership education or similar services.
(iii) That the organization conducts its activities in a manner that serves public or charitable purposes, rather than commercial purposes.
(iv) That the organization receives funding and revenue, and charges fees in a manner that does not incentivize the organization or its employees to act other than in the best interests of its clients.
(v) That the organization compensates employees in a manner that does not incentivize employees to act other than in the best interests of its clients.
(vi) That the organization provides to, or identifies for, the borrower residential mortgage loans with terms favorable to the borrower and comparable to mortgage loans and housing assistance provided under government housing assistance programs.
(vii) That the organization is certified by the United States Department of Housing and Urban Development as a housing counselor who engages solely in traditional housing counseling services, if applicable.
(C) The commissioner may periodically require reports regarding the activities of the bona fide nonprofit organization, and shall examine the nonprofit organization's books and records in accordance with the regulations of the United States Department of Housing and Urban Development, or any successor guidance or requirement by the Consumer Financial Protection Bureau. If the nonprofit organization fails to provide documentation as required by subparagraph (B), or if it does not continue to meet the criteria under subparagraph (B), the commissioner may revoke the nonprofit organization's status as a registered bona fide nonprofit organization.
(D) For residential mortgage loans to have terms that are favorable to the borrower, the terms shall be consistent with loan origination in a public or charitable context, rather than a commercial context.
(E) In making its determinations and examinations, the commissioner may rely on the receipt and review of:
(i) Reports filed with federal, state, or local housing agencies and authorities.
(ii) Reports and attestations prescribed by the commissioner by rule or order.
(c) "Registered mortgage loan originator" means any individual who is all of the following:
(1) Meets the definition of mortgage loan originator.
(2) Is an employee of a depository institution, a subsidiary that is owned and controlled by a depository institution and regulated by a federal banking agency, or an institution regulated by the Farm Credit Administration.
(3) Is registered with, and maintains a unique identifier through, the Nationwide Mortgage Licensing System and Registry.
(d) "Loan processor or underwriter" means an individual who performs clerical or support duties as an employee at the direction of, and subject to the supervision and instruction of, a mortgage loan originator licensed by the state or a registered mortgage loan originator.
(a) A loan processor or underwriter who does 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 the individual can or will perform any of the activities of a
mortgage loan originator shall not be required to be licensed as a
mortgage loan originator.
(b) 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 the individual can or will perform any of the activities of a mortgage loan originator.
(c) An independent contractor may not engage in the activities of a loan processor or underwriter for a residential mortgage loan unless the independent contractor loan processor or underwriter obtains and maintains a mortgage loan originator license under this division. Each independent contractor loan processor or underwriter licensed as a mortgage loan originator shall have and maintain a valid unique identifier issued by the Nationwide Mortgage Licensing System and Registry.
(b) 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 the individual can or will perform any of the activities of a mortgage loan originator.
(c) An independent contractor may not engage in the activities of a loan processor or underwriter for a residential mortgage loan unless the independent contractor loan processor or underwriter obtains and maintains a mortgage loan originator license under this division. Each independent contractor loan processor or underwriter licensed as a mortgage loan originator shall have and maintain a valid unique identifier issued by the Nationwide Mortgage Licensing System and Registry.
