BILL ANALYSIS                                                                                                                                                                                                    Ó





          SENATE COMMITTEE ON
                         BANKING AND FINANCIAL INSTITUTIONS
                            Senator Steven Glazer, Chair
                                2015 - 2016  Regular 

          Bill No:             SB 657         Hearing Date:     August 17,  
          2016
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          |Author:    |Berryhill and Pan                                    |
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          |Version:   |August 1, 2016    Amended                            |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Eileen Newhall                                       |
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             Subject:  The California Residential Mortgage Lending Act:  
                                 lenders: licensees


           SUMMARY       This bill revises the definition of a lender under the  
          California Residential Mortgage Lending Act (CRMLA) to include  
          persons who act as loan processors or underwriters for  
          residential mortgage loans, as specified.
          
           DESCRIPTION
             
            1.  Adds the following persons to the definition of a lender  
              under the CRMLA:

               a.     An entity that is a natural person and an  
                 independent contractor, who engages in the activities of  
                 a loan processor or underwriter for a residential  
                 mortgage loan, as specified. 

               b.     An entity that is not a natural person, who engages  
                 in the activities of a loan processor or underwriter for  
                 a residential mortgage loan, as specified.

           2.  Authorizes the commissioner to require a CRMLA licensee who  
              is a loan processor or underwriter to maintain a minimum  








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              tangible net worth in excess of $250,000, but that does not  
              exceed the net worth required of an approved lender under  
              the Federal Housing Administration (FHA).

           EXISTING LAW
           
           3.  Authorizes the CRMLA (Financial Code Section 50000 et  
              seq.), administered by the Department of Business Oversight  
              (DBO), to regulate the activities of residential mortgage  
              lending and servicing in California.  Provides that no  
              person may engage in the business of making or servicing  
              residential mortgage loans in California without first  
              obtaining a license as a mortgage lender or mortgage  
              servicer under the CRMLA, unless that person or transaction  
              is exempt from licensure (Financial Code Section 50002).  

           4.  Defines "makes or making residential mortgage loans" or  
              "mortgage lending," pursuant to the CRMLA, as processing,  
              underwriting, or advancing one's own funds to a loan  
              applicant for a residential mortgage loan (Financial Code  
              Section 50003).  

           5.  Defines a "lender," pursuant to the CRMLA, as a person that  
              meets all of the following criteria:  

              a.    Is an approved lender for the FHA, Veterans  
                Administration, Farmers Home Administration, Government  
                National Mortgage Association, Federal National Mortgage  
                Association, or Federal Home Loan Mortgage Corporation; 

              b.    Directly makes residential mortgage loans;

              c.    Makes the credit decision in the loan transactions. 

           6.  Prohibits an independent contractor from engaging in the  
              activities of a loan processor or underwriter for a  
              residential mortgage loan, unless that independent  
              contractor obtains and maintains both a license under the  
              CRMLA and a mortgage loan originator license (Financial Code  
              Section 50003.6).  

           7.  Requires all CRMLA licensees to maintain a minimum tangible  
              net worth at all times of $250,000, computed in accordance  
              with generally accepted accounting principles.








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           COMMENTS
         
          1.  Purpose:   This bill is sponsored by the author to mitigate  
              the unintended negative consequences in California of a  
              policy change adopted by the federal Department of Housing  
              and Urban Development (HUD) in September, 2015.  By changing  
              the definition of lender under the CRMLA, this bill allows  
              certain entities that are currently licensed under the CRMLA  
              and currently doing business in California to continue doing  
              business as licensed CRMLA lenders in this state.  

           2.  Senate Rule 29.10(d)  :  The current contents of SB 657 were  
              amended into the bill in the Assembly.  Because this bill  
              has not previously been heard in the Senate in its current  
              form, it is back before this Committee pursuant to Senate  
              Rule 29.10(d).  Pursuant to Senate Rule 29.10(d), this  
              Committee has two options when it considers SB 657:  a)  
              concur in the Assembly amendments, and return the bill to  
              the Senate Floor; or b) hold the bill in Committee.  The  
              bill cannot be amended.  

           3.  Background and Discussion:   This bill is focused on entities  
              that process and underwrite residential mortgage loans in  
              California.  Its intent is to maintain the status quo under  
              the CRMLA, by allowing loan processors and underwriters that  
              are currently licensed under the CRMLA to remain licensed  
              under that law.  

          As explained by the California Bankers Association and  
              California Mortgage Bankers Association in their letter of  
              support for this bill, companies that specialize in  
              providing mortgage loan processing, underwriting, and  
              compliance services to lenders represent an important  
              component of mortgage loan origination in California.  These  
              third parties facilitate the flow of loans to consumers and  
              provide much-needed capacity and technical expertise to  
              lenders of all sizes, allowing those lenders to more  
              efficiently serve their borrowers.  

          The CRMLA requires these third party specialists to hold  
              licenses in California, because the CRMLA's definition of  
              "making a residential mortgage loan" includes the activities  
              of loan processing and loan underwriting.  Until September,  
              2015, several of these third parties also met the definition  
              of "lender" under the CRMLA, because these third parties  







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              were approved as "non-supervised mortgagees" by the FHA, and  
              the CRMLA definition of a lender includes entities that are  
              approved by one or more specified federal housing agencies  
              or government-sponsored enterprises.  

          However, in September, 2015, HUD (which oversees the FHA),  
              changed the definition of non-supervised lenders and  
              mortgagees in its Mortgagee Handbook; instead of referring  
              to these entities as "financial entities," the FHA began  
              referring to them as "lending institutions."  This change  
              had the effect of excluding third party processors and  
              underwriters from the definition of non-supervised lenders  
              and mortgagees, because these third parties do not originate  
              or fund loans (i.e., they do not lend).  The change to HUD's  
              Mortgagee Handbook created a Catch-22 in California, by  
              creating a category of entities that require CRMLA licenses,  
              but that no longer meet the CRMLA definition of entities  
              that are eligible to obtain those licenses.  This bill  
              modifies the definition of "lender" under the CRMLA, to  
              ensure that these loan processors and underwriters are  
              eligible to obtain and maintain CRMLA licenses.  

           4.  Net Worth Requirement:   The CRMLA requires its licensees to  
              maintain a minimum tangible net worth of $250,000.  This  
              bill authorizes DBO to require loan processors and  
              underwriters licensed under the CRMLA to maintain net worths  
              higher than $250,000, but caps the net worth requirement  
              that may be imposed on loan processors and underwriters at  
              the amount that is required of FHA-approved lenders.  This  
              provision is intended to ensure that loan processors and  
              underwriters, who are no longer FHA-approved lenders due to  
              the Mortgagee Handbook change, can still be required to  
              maintain the net worth required of FHA-approved lenders.  

           5.  Summary of Arguments in Support:   

               a.     This bill's authors state, "In 2015, FHA said that  
                 its federal lender approval should and would no longer be  
                 granted or allowed to third party processors and  
                 underwriters who did not themselves actually lend.   
                 Consequently, because of this policy change, these  
                 individuals will have to surrender their current FHA  
                 lender approval.  The ultimate effect of this change in  
                 HUD policy means that current California licensees that  
                 rely on the FHA approval to satisfy the California  







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                 requirement will have a challenge in technically meeting  
                 the definition of 'lender' in the CRMLA.  So although  
                 they have been active and in good standing in California,  
                 through no action or fault of their own making and based  
                 on a policy shift by a federal entity, some California  
                 independent contractors may no longer be able to do  
                 business in California under the CRMLA."

               This bill would make it clear that this category of CRMLA  
                 mortgage lender licensees, which engage solely in  
                 mortgage loan processing and underwriting and can no  
                 longer be FHA/HUD approved lenders, can still be licensed  
                 in California and remain subject to DBO jurisdiction and  
                 oversight, just as they are now.

               b.     The California Bankers Association and California  
                 Mortgage Bankers Association wrote a joint letter of  
                 support for this bill, stating, "SB 657 will make a  
                 small, but necessary technical adjustment to the CRMLA to  
                 address a change in FHA classifications that negatively  
                 impacts the license approval process for certain  
                 licensees.  We believe SB 657 achieves two important  
                 public policy objectives; first, it prevents a potential  
                 disruption in services critical to the flow of mortgage  
                 capital into the California marketplace; and second, it  
                 prevents potential loss of jobs to Californians if there  
                 was a disruption in the ability of a small but important  
                 set of current RML licensed companies to operate under  
                 the CRMLA."  SB 657 maintains the status quo for loan  
                 processors and underwriters, and ensures that these  
                 companies can continue to do business in California.

           6.  Summary of Arguments in Opposition:    None received.

           
          LIST OF REGISTERED SUPPORT/OPPOSITION
            
          Support
           
          California Bankers Association
          California Mortgage Bankers Association
           
          Opposition
               
          None received







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