House File 685 - Introduced



                                       HOUSE FILE       
                                       BY  COMMITTEE ON COMMERCE

                                       (SUCCESSOR TO HSB 137)


    Passed House,  Date               Passed Senate, Date             
    Vote:  Ayes        Nays           Vote:  Ayes        Nays         
                 Approved                            

                                      A BILL FOR

  1 An Act providing for the registration of escrow agents,
  2    authorizing fees, and providing an effective date.
  3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
  4 TLSB 1143HV 83
  5 jr/rj/24

PAG LIN



  1  1    Section 1.  NEW SECTION.  545.1  DEFINITIONS.
  1  2    As used in this chapter, unless the context otherwise
  1  3 requires:
  1  4    1.  "Commission" means the real estate commission created
  1  5 in section 543B.8.
  1  6    2.  "Escrow" means a transaction wherein a written
  1  7 instrument, money, evidence of title to real or personal
  1  8 property, or other thing of value is delivered, for the
  1  9 purpose of paying an obligation or effecting the sale,
  1 10 transfer, encumbrance, or lease of real property located in
  1 11 this state, to a person not otherwise having any right, title,
  1 12 or interest therein, to be held by that person until the
  1 13 happening of a specified event or the performance of a
  1 14 prescribed condition, when it is then to be delivered by such
  1 15 person to a grantee, grantor, promisee, promisor, obligee,
  1 16 obligor, bailee, bailor, or any agent or employee thereof.
  1 17    3.  "Escrow agent" means a person engaged in the business
  1 18 of administering escrows.
  1 19    4.  "Registrant" means an escrow agent registered under
  1 20 this chapter.
  1 21    Sec. 2.  NEW SECTION.  545.2  REGISTRATION REQUIRED ==
  1 22 EXEMPTIONS.
  1 23    A person shall not engage in business as an escrow agent
  1 24 without first registering pursuant to this chapter.  This
  1 25 chapter shall not apply to any of the following:
  1 26    1.  A bank, bank holding company, trust company, savings
  1 27 bank, savings and loan association, or credit union that is
  1 28 subject to licensing, supervision, or auditing by an agency of
  1 29 this state, another state, or the United States, or any
  1 30 subsidiary or affiliate thereof.
  1 31    2.  A mortgage lender or mortgage banker maintaining an
  1 32 office in this state whose principal business in this state is
  1 33 conducted with or through a mortgage lender or mortgage
  1 34 banker, to which this chapter does not otherwise apply and
  1 35 which maintains a place of business in this state, including a
  2  1 mortgage banker subject to the licensing requirements under
  2  2 chapter 535B.
  2  3    3.  An insurance company organized under the laws of this
  2  4 state and subject to regulation by the commissioner of
  2  5 insurance, or a wholly owned subsidiary of an insurance
  2  6 company with its principal place of business in this state.
  2  7    4.  A person licensed to practice law in this state
  2  8 rendering services in the performance of duties as an attorney
  2  9 at law.
  2 10    5.  A real estate licensee licensed under chapter 543B.
  2 11    6.  An officer or employee of the federal government, any
  2 12 state government, or a political subdivision of the state
  2 13 acting in an official capacity.
  2 14    7.  A person acting under the supervision or order of any
  2 15 court.
  2 16    8.  A qualified intermediary facilitating an exchange under
  2 17 section 1031 of the Internal Revenue Code whose role in the
  2 18 transaction is limited to acting in such a capacity.
  2 19    Sec. 3.  NEW SECTION.  545.3  REGISTRATION REQUIREMENTS.
  2 20    1.  Registration applicants shall submit to the commission
  2 21 an application on forms provided by the commission.
  2 22 Notification of material changes in the information contained
  2 23 in the application must be immediately filed with the
  2 24 commission.  The application shall be accompanied by a filing
  2 25 fee as set by the commission and shall include, at a minimum,
  2 26 all of the following:
  2 27    a.  The applicant's form of business organization and place
  2 28 of organization.
  2 29    b.  If the applicant is a corporation or limited liability
  2 30 company, the address of the physical location of its
  2 31 headquarters, a list of employees, officers, controlling
  2 32 persons, and directors of such corporation or company and
  2 33 their residential addresses, telephone numbers, and other
  2 34 identifying information as required by rule adopted pursuant
  2 35 to this chapter.  If the applicant is a sole proprietorship or
  3  1 partnership, the address of its business location, a list of
  3  2 owners, partners, employees, and controlling persons and their
  3  3 residential addresses, telephone numbers, and other
  3  4 identifying information as required by rule adopted pursuant
  3  5 to this chapter.
  3  6    c.  The name under which the applicant will conduct
  3  7 business.
  3  8    d.  The name of a natural person to receive service of
  3  9 process.
  3 10    e.  Evidence of compliance with the financial
  3 11 responsibility requirements of section 545.7.
  3 12    2.  A registrant shall be subject to criminal background
  3 13 checks.  A registration certificate shall not be issued to an
  3 14 applicant who has been convicted, including a conviction based
  3 15 upon a guilty plea or plea of nolo contendere, of a crime
  3 16 which is substantially related to the qualifications,
  3 17 functions, and duties of an escrow agent, including, fraud and
  3 18 theft.  A registrant shall relinquish a registration
  3 19 certificate within twenty days of being convicted of such a
  3 20 crime.
  3 21    3.  An applicant who fails to comply with the requirements
  3 22 of this section shall not be registered.
  3 23    4.  A registration certificate issued pursuant to this
  3 24 chapter is not transferable.
  3 25    Sec. 4.  NEW SECTION.  545.4  GRANTING OF REGISTRATION
  3 26 CERTIFICATE.
  3 27    When the applicant has complied with the requirements as
  3 28 set forth in section 545.3, and the commission finds the
  3 29 financial responsibility, character, and general fitness of
  3 30 the applicant and the members and employees thereof if the
  3 31 applicant is a partnership, association, or other organization
  3 32 or of the applicant and the officers, directors, and employees
  3 33 thereof if the application is a corporation, are such to
  3 34 warrant a belief that the applicant's business will be
  3 35 operated honestly, soundly, and efficiently in the public
  4  1 interest consistent with the purposes of this chapter, the
  4  2 commission shall enroll the applicant's name and address in
  4  3 the roster of registered escrow agents and issue to the
  4  4 applicant a certificate of registration, which certificate
  4  5 shall entitle the applicant to practice as an escrow agent in
  4  6 this state.
  4  7    Sec. 5.  NEW SECTION.  545.5  PROHIBITION ON ADMINISTERING
  4  8 ESCROWS IN CONJUNCTION WITH MORTGAGE BROKERS == EXCEPTIONS.
  4  9    A registrant who is also a mortgage broker subject to
  4 10 licensing pursuant to chapter 535B shall not conduct the
  4 11 business of administering escrows pursuant to this chapter
  4 12 unless the registrant maintains separate escrow accounts,
  4 13 books, and records from the registrant's mortgage broker's
  4 14 accounts, books, and records, and maintains a mortgage broker
  4 15 license under chapter 535B and registers as an escrow agent
  4 16 under this chapter.
  4 17    Sec. 6.  NEW SECTION.  545.6  RENEWALS.
  4 18    Certificates of registration shall be valid for a period of
  4 19 three years.  Registered escrow agents shall renew their
  4 20 certificates of registration and pay a renewal fee in the
  4 21 manner prescribed by the commission.  The commission shall
  4 22 prescribe the conditions and reasonable penalties for renewal
  4 23 after a certificate's expiration date.
  4 24    Sec. 7.  NEW SECTION.  545.7  FINANCIAL RESPONSIBILITY.
  4 25    1.  A registrant shall file with the commission a bond
  4 26 furnished by a surety company authorized to do business in
  4 27 this state.  The bond shall be at a minimum, the amount of one
  4 28 hundred thousand dollars.  The commission by administrative
  4 29 rule may establish an increased bonding requirement amount.  A
  4 30 registrant shall maintain a bond continuous in nature until
  4 31 canceled by the surety with not less than thirty days' notice
  4 32 in writing to the escrow agent and to the commission
  4 33 indicating the surety's intention to cancel the bond on a
  4 34 specific date.  The surety bond shall be in a form provided by
  4 35 the commission and the applicant or licensee shall be named as
  5  1 principal.  The bond shall be for the use of this state and
  5  2 any persons who may have causes of action against the
  5  3 registrant.  The bond shall be conditioned upon the
  5  4 registrant's faithfully conforming to and abiding by this
  5  5 chapter and any rules adopted pursuant to this chapter and
  5  6 shall require that the surety pay to this state and to any
  5  7 persons all moneys that become due or owing to this state and
  5  8 to the persons from the registrant by virtue of this chapter.
  5  9    2.  A registrant shall maintain a policy of errors and
  5 10 omissions insurance executed by an insurer authorized to do
  5 11 business in this state in an amount not less than one hundred
  5 12 thousand dollars per claim, and two hundred fifty thousand
  5 13 dollars in the aggregate.
  5 14    3.  In lieu of filing a bond, the registrant may pledge an
  5 15 alternative form of collateral acceptable to the commission,
  5 16 if the alternative collateral provides protection to this
  5 17 state and any aggrieved person that is equivalent to that
  5 18 provided by a bond.
  5 19    4.  A bond, errors and omissions policy, or alternative
  5 20 form of collateral required by the commission shall be kept in
  5 21 full force and effect as a condition precedent to the escrow
  5 22 agent's authority to transact escrow business in this state,
  5 23 and the escrow agent shall supply the commission with
  5 24 satisfactory evidence thereof upon request.
  5 25    5.  In the event of cancellation of the required bond,
  5 26 errors and omissions policy, or alternative form of
  5 27 collateral, the commission shall require new evidence of
  5 28 financial responsibility.  Failure to provide the commission
  5 29 with satisfactory evidence shall be considered a violation of
  5 30 this chapter.  An escrow agent shall inform the commission
  5 31 within ten days of any substantial change to a registrant's
  5 32 financial responsibility activities, which include bonding and
  5 33 insurance carriers and amounts.
  5 34    Sec. 8.  NEW SECTION.  545.8  CEASE AND DESIST POWERS ==
  5 35 INJUNCTIVE RELIEF == SUBPOENAS.
  6  1    If the commission has reason to believe that a person is
  6  2 conducting business in an unsafe and injurious manner or in
  6  3 violation of this chapter or rules adopted pursuant to this
  6  4 chapter, the commission has the same cease and desist power
  6  5 and authority to take any action to enforce this chapter that
  6  6 the commission has under chapter 543B.
  6  7    Sec. 9.  NEW SECTION.  545.9  TRUST OR ESCROW ACCOUNTS.
  6  8    1.  All moneys deposited in escrow to be delivered upon the
  6  9 close of the escrow or upon any other contingency must be
  6 10 deposited in a trust account in a financial institution that
  6 11 is insured by the federal deposit insurance corporation or
  6 12 national credit union share insurance fund unless another
  6 13 financial institution has been designated in writing in the
  6 14 escrow instructions.
  6 15    2.  The moneys when deposited must be designated as trust
  6 16 funds or escrow accounts or under some other appropriate name
  6 17 indicating that the moneys are not the moneys of the
  6 18 registrant.
  6 19    3.  The trust or escrow account must be an interest=bearing
  6 20 account.  The interest on the account must be transferred
  6 21 quarterly to the treasurer of state and transferred to the
  6 22 Iowa finance authority for deposit in the housing trust fund
  6 23 established in section 16.181 unless there is written
  6 24 agreement between the buyer and seller to the contrary.  The
  6 25 registrant shall not benefit from interest received on funds
  6 26 of others in the registrant's possession.
  6 27    4.  A registrant shall notify the commission of the name of
  6 28 each financial institution in which a trust or escrow account
  6 29 is maintained and the name of the account on forms acceptable
  6 30 to the commission.  A registrant may maintain more than one
  6 31 trust or escrow account provided the commission is advised of
  6 32 the multiple trust or escrow accounts.
  6 33    5.  A registrant shall only deposit trust or escrow funds
  6 34 in a trust or escrow account and shall not commingle the
  6 35 registrant's personal funds or other funds in the trust or
  7  1 escrow account with the exception that a registrant may
  7  2 deposit and keep a sum not to exceed five hundred dollars in
  7  3 the trust or escrow account from the registrant's personal
  7  4 funds, which sum shall be specifically identified and
  7  5 deposited to cover bank service charges relating to the trust
  7  6 or escrow account.
  7  7    6.  Money deposited in escrow is not subject to execution
  7  8 or attachment on any claim against the registrant.
  7  9    7.  A registrant shall not knowingly keep or cause to be
  7 10 kept any moneys in any bank, credit union, or other financial
  7 11 institution under any name designating the moneys as belonging
  7 12 to a client of a registrant, unless the money was actually
  7 13 entrusted to the registrant by the client for deposit in
  7 14 escrow.
  7 15    Sec. 10.  NEW SECTION.  545.10  STATUTORY AND COMMON LAW
  7 16 RIGHTS UNAFFECTED.
  7 17    The provisions of this chapter do not limit any statutory
  7 18 or common law right of any person to bring an action in a
  7 19 court for an act involved in the transaction of the escrow
  7 20 business or the right of the state to punish a person for any
  7 21 violation of a law.
  7 22    Sec. 11.  NEW SECTION.  545.11  TRANSACTIONS BY FOREIGN
  7 23 CORPORATIONS.
  7 24    A foreign corporation shall not transact an escrow business
  7 25 in this state unless the foreign corporation qualifies under
  7 26 chapter 490 and otherwise complies with the provisions of this
  7 27 chapter.
  7 28    Sec. 12.  NEW SECTION.  545.12  CONSUMER FRAUD ACT.
  7 29    This chapter does not limit the power of the attorney
  7 30 general to determine that any practice is unlawful under the
  7 31 consumer fraud Act, section 714.16, and to file an action
  7 32 under that section.
  7 33    Sec. 13.  EFFECTIVE DATE.  This Act takes effect July 1,
  7 34 2010.
  7 35                           EXPLANATION
  8  1    This bill requires escrow agents to register with the real
  8  2 estate commission.  Escrow agents generally operate as neutral
  8  3 third parties on behalf of sellers and buyers in a real estate
  8  4 transaction, accepting funds and documents for delivery to the
  8  5 parties when the terms of escrow have been completed.
  8  6 Registration may be issued either to individuals or
  8  7 businesses.  Several entities are excluded from the licensure
  8  8 requirements, including:  Iowa banks, Iowa mortgage or
  8  9 insurance companies, lawyers acting within the scope of their
  8 10 practice, real estate brokers and salespersons, government
  8 11 employees, and persons acting under the direction of a court.
  8 12    The real estate commission issues three=year certificates
  8 13 of registration, and holds a surety bond from each registrant.
  8 14 The commission may also issue cease and desist orders if a
  8 15 registrant is conducting business in an unsafe and injurious
  8 16 manner or in violation of the law.  As set out in Code section
  8 17 543B.48, the commission may impose a penalty not to exceed
  8 18 $2,500 for violation of this Code chapter, and may suspend or
  8 19 revoke a registration under Code section 543B.29.
  8 20    Under the bill, all moneys deposited in escrow must be
  8 21 deposited in an interest=bearing trust account in a financial
  8 22 institution that is insured by the federal deposit insurance
  8 23 corporation or national credit union share insurance fund
  8 24 unless another financial institution has been designated in
  8 25 writing in the escrow instructions.
  8 26    The bill takes effect on July 1, 2010.
  8 27 LSB 1143HV 83
  8 28 jr/rj/24