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The Vermont Statutes Online
Title
08
:
Banking and Insurance
Chapter
073
:
LICENSED LENDERS
§
2200. Definitions
As used in this
chapter:
(1)
"Commercial loan" means any loan or extension of credit that is
described in 9 V.S.A. § 46(1), (2), or (4). The term does not include a loan or
extension of credit secured in whole or in part by an owner occupied one- to
four-unit dwelling.
(2)
"Commissioner" means the Commissioner of Financial Regulation.
(3)
"Control" means the possession, direct or indirect, of the power to
direct or cause the direction of the management or policies of a person,
whether through the ownership of voting securities, by contract other than a
commercial contract for goods or nonmanagement services, or otherwise, unless
the power is the result of an official position with or corporate office held
by the person. Control shall be presumed to exist if any person, directly or
indirectly, owns, controls, holds with the power to vote, or holds proxies
representing 10 percent or more of the voting securities or other interest of
any other person.
(4)
"Depository institution" has the same meaning as in Section 3 of the
Federal Deposit Insurance Act, 12 U.S.C. § 1813(c), which includes any bank and
any savings association as defined in Section 3 of the Federal Deposit
Insurance Act. For purposes of this chapter, "depository institution"
also includes any credit union organized and regulated as such under the laws
of the United States or any state or territory of the United States.
(5)(A)
"Employee" means, subject to subdivision (B) of this subdivision (5),
an individual whose manner and means 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 a registered mortgage loan originator as defined in subdivision (22) of this
section, the term employee has such binding definition as may be issued by the
federal banking agencies in connection with their responsibilities under the
federal Secure and Fair Enforcement for Mortgage Licensing Act of 2008.
(6) "Engage
in the business of a mortgage loan originator" means to act as, or to hold
oneself out as acting as, or to represent to the public that one can provide
the services of a mortgage loan originator, in a commercial context, and with
some degree of habitualness or repetition. Habitualness or repetition is met if
either the individual who acts as a mortgage loan originator does so with a
degree of habitualness or repetition or the source of the prospective financing
provides such financing or performs other phases of origination of residential
mortgage loans with a degree of habitualness or repetition. Acting in a
commercial context is met if either the individual or an entity for which the
individual acts does so for the purpose of obtaining profit rather than
exclusively for governmental or family purposes.
(7)
"Federal banking agencies" means the Board of Governors of the
Federal Reserve System, the Comptroller of the Currency, the Office of Thrift
Supervision, the National Credit Union Administration, and the Federal Deposit
Insurance Corporation or any successor of any of these.
(8)
"Holder" shall have the meaning set forth in 9A V.S.A. §
1-201(b)(21).
(9)
"Housing finance agency" means any authority:
(A) that is
chartered by a state to help meet the affordable housing needs of the residents
of the state;
(B) that is
supervised directly or indirectly by the state government;
(C) that is
subject to audit and review by the state in which it operates; and
(D) whose
activities make it eligible to be a member of the National Council of State
Housing Agencies.
(10)
"Immediate family member" means a spouse, child, sibling, parent,
grandparent, or grandchild, aunt, uncle, nephew, niece, including stepparents,
stepchildren, stepsiblings, step grandparents, step grandchildren, and adoptive
relationships. The term also includes former spouses dividing property in
connection with a divorce or separation.
(11)
"Individual" means a natural person.
(12)
"Insurance company" shall mean an institution organized and regulated
as such under the laws of the State of Vermont or any state or territory of the
United States.
(13)
"Licensee" means any person subject to the provisions of section 2201
of this title.
(14) "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 person licensed, or exempt from licensing,
under this chapter.
(A) For purposes
of this subdivision (14), the term "clerical or support duties" may
include, subsequent to the receipt of a residential mortgage loan application:
(i) The receipt,
collection, distribution, and analysis of information common for the processing
or underwriting of a residential mortgage loan; and
(ii)
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.
(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 such
individual can or will perform any of the activities of a mortgage loan
originator.
(15)
"Mortgage broker" means any person who for compensation or gain, or
in the expectation of compensation or gain, directly or indirectly negotiates,
places, assists in placement, finds or offers to negotiate, place, assist in
placement or find mortgage loans, other than commercial loans, on real property
for others. The term shall not include real estate brokers or salespersons, as
defined in 26 V.S.A. § 2211, who in connection with services performed in a
prospective real estate transaction, provide mortgage information or assistance
to a buyer, if such real estate broker or real estate salesperson is not
compensated for providing such mortgage information or assistance in addition
to the compensation received from the seller or buyer for such real estate
brokerage activity. The term shall not include attorneys licensed to practice
law in this State acting in their professional capacity. The term shall not
include persons engaged in the foregoing activities solely in connection with
the sale, assignment, or other transfer of one or more previously originated
loans.
(16)
"Mortgage loan" means a loan secured primarily by a lien against real
estate.
(17)
"Mortgage loan originator":
(A) Means an
individual who for compensation or gain or in the expectation of compensation
or gain:
(i) Takes a
residential mortgage loan application; or
(ii) Offers or
negotiates terms of a residential mortgage loan; or
(iii) Represents
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 the services described in subdivision (A)(i) or (A)(ii) of this
subdivision (17).
(B) An
individual "takes a residential mortgage loan application" if the individual
receives a residential mortgage loan application for the purpose of
facilitating a decision whether to extend an offer of residential mortgage loan
terms to a borrower or prospective borrower (or to accept the terms offered by
a borrower or prospective borrower in response to a solicitation), whether the
application is received directly or indirectly from the borrower or prospective
borrower.
(C) An
individual "offers or negotiates terms of a residential mortgage loan for
compensation or gain" if the individual:
(i)(I) Presents
for consideration by a borrower or prospective borrower particular residential
mortgage loan terms;
(II)
Communicates directly or indirectly with a borrower or prospective borrower for
the purpose of reaching a mutual understanding about prospective residential
mortgage loan terms; or
(III)
Recommends, refers, or steers a borrower or prospective borrower to a
particular lender or set of residential mortgage loan terms, in accordance with
a duty to or incentive from any person other than the borrower or prospective
borrower; and
(ii) Receives or
expects to receive payment of money or anything of value in connection with the
activities described in subdivision (C)(i) of this subdivision (17) or as a
result of any residential mortgage loan terms entered into as a result of such
activities.
(D) Does not
include:
(i) an
individual engaged solely as a loan processor or underwriter, except as
otherwise provided in subsection 2201(f) of this chapter;
(ii) a person or
entity that only performs real estate brokerage activities and is licensed or
registered in accordance with Vermont law, unless the person or entity is
compensated by a buyer or a seller in addition to the compensation received for
such real estate brokerage activity or is compensated by a lender, a mortgage
broker, or other mortgage loan originator or by any agent of such lender,
mortgage broker, or other mortgage loan originator; and
(iii) a person
or entity solely involved in extensions of credit relating to timeshare plans,
as that term is defined in Section 101(53D) of Title 11, United States Code.
(18)
"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, or any
successor to the Nationwide Mortgage Licensing System and Registry.
(19)
"Nontraditional mortgage product" means any mortgage product other
than a 30-year fixed rate mortgage.
(20)
"Person" shall have the meaning set forth in 1 V.S.A. § 128 and
includes a natural person, corporation, company, limited liability company,
partnership, or association.
(21) "Real
estate brokerage activity" means 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 subdivision (A),
(B), (C), or (D) of this subdivision (21).
(22)
"Registered mortgage loan originator" means any individual who:
(A) meets the
definition of mortgage loan originator and is an employee of:
(i) A depository
institution;
(ii) A
subsidiary that is:
(I) Owned and
controlled by a depository institution, as determined by a federal banking
agency; and
(II) Regulated
by a federal banking agency; or
(iii) An
institution regulated by the Farm Credit Administration; and
(B) is
registered with, and maintains a unique identifier through, the Nationwide
Mortgage Licensing System and Registry.
(23)
"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 Truth in Lending Act) or residential real estate upon which is
constructed or intended to be constructed a dwelling (as so defined).
(24)
"Residential mortgage loan application" means a request, in any form,
for an offer (or a response to a solicitation of an offer) of residential
mortgage loan terms, and information about the borrower or prospective borrower
that is customary or necessary in a decision on whether to make such an offer.
(25)
"Residential real estate" means any real property located in Vermont,
upon which is constructed or intended to be constructed a dwelling.
(26) "Sales
finance company" means any person who has purchased one or more retail
installment contracts, as defined in 9 V.S.A. §§ 2351(5) and 2401(7), from one
or more retail sellers located in this State. Taking one or more retail
installment contracts as security for a loan or loans shall not be construed as
purchasing for purposes of this definition.
(27)
"Unique identifier" means a number or other identifier assigned by
protocols established by the Nationwide Mortgage Licensing System and Registry.
(Added 1995, No. 162 (Adj. Sess.), § 1, eff. Jan. 1, 1997; amended 1995, No.
180 (Adj. Sess.), § 38(a); 1997, No. 98 (Adj. Sess.), § 2, eff. April 16, 1998;
1999, No. 153 (Adj. Sess.), § 11, eff. Jan. 1, 2001; 2009, No. 29, § 1; 2009,
No. 134 (Adj. Sess.), § 24a; 2011, No. 78 (Adj. Sess.), § 2, eff. April 2,
2012; 2011, No. 85 (Adj. Sess.), § 1, eff. April 20, 2012; 2013, No. 34, § 3.)