House Study Bill 72 



                                       SENATE/HOUSE FILE       
                                       BY  (PROPOSED ATTORNEY GENERAL BILL)


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

                                      A BILL FOR

  1 An Act specifying a duty of agency applicable to licensed
  2    mortgage brokers and making penalties applicable.
  3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
  4 TLSB 1295DP 83
  5 rn/nh/5

PAG LIN



  1  1    Section 1.  NEW SECTION.  535B.18  DUTY OF AGENCY.
  1  2    1.  A licensee or individual registrant acting in the
  1  3 capacity of a mortgage broker pursuant to section 535B.1,
  1  4 subsection 5, shall be considered to have created an agency
  1  5 relationship with the borrower in all cases and shall perform
  1  6 all of the following duties:
  1  7    a.  Act in good faith and with fair dealing toward
  1  8 borrowers and place the borrower's interest ahead of the
  1  9 interest of any other party, including the interest of the
  1 10 licensee or individual registrant.
  1 11    b.  Not accept, give, or charge any undisclosed
  1 12 compensation or realize any undisclosed remuneration, either
  1 13 through direct or indirect means, that inures to the benefit
  1 14 of the licensee or individual registrant in connection with
  1 15 the licensee's or individual registrant's relationship with
  1 16 the borrower.
  1 17    c.  Carry out all lawful instructions provided or issued by
  1 18 the borrower.
  1 19    d.  Affirmatively disclose to a borrower all material facts
  1 20 of which the licensee or individual registrant has knowledge
  1 21 which might reasonably affect the borrower's rights,
  1 22 interests, or ability to receive the borrower's intended
  1 23 benefit from the mortgage loan.
  1 24    e.  Use reasonable care in the performance of duties.
  1 25    f.  Account to the borrower for all the borrower's money
  1 26 and property received as agent.
  1 27    2.  a.  This section shall not be construed to prohibit a
  1 28 licensee or individual registrant from contracting for or
  1 29 collecting a fee after services have been rendered which was
  1 30 disclosed and agreed to by the borrower in advance of the
  1 31 provision of such services.
  1 32    b.  This section shall not be construed as requiring a
  1 33 licensee or individual registrant to obtain a loan for the
  1 34 borrower containing terms or conditions not available in the
  1 35 usual course of business to the licensee or individual
  2  1 registrant, or to obtain a loan for the borrower from a
  2  2 mortgage lender with whom the licensee or individual
  2  3 registrant does not have a business relationship.
  2  4    3.  The duties and standards of care established in this
  2  5 section shall not be waived or modified by contract or
  2  6 otherwise.
  2  7                           EXPLANATION
  2  8    This bill confers upon licensed mortgage brokers and
  2  9 individual registrants a duty of agency.
  2 10    The bill provides that a licensee or individual registrant
  2 11 acting in the capacity of a mortgage broker pursuant to Code
  2 12 section 535B.1, subsection 5, shall be considered to have
  2 13 created an agency relationship with a borrower in all cases.
  2 14 The bill specifies duties a licensee or individual registrant
  2 15 shall perform pursuant to the agency relationship, including
  2 16 acting in a borrower's best interest, in good faith, and with
  2 17 fair dealing, and not accepting, giving, or charging any
  2 18 undisclosed compensation or realizing any undisclosed
  2 19 remuneration that inures to the licensee's or individual
  2 20 registrant's benefit in connection with their relationship
  2 21 with the borrower.  Additional duties include carrying out all
  2 22 lawful instructions provided or issued by a borrower,
  2 23 affirmatively disclosing all material facts of which the
  2 24 licensee or individual registrant has knowledge which might
  2 25 reasonably affect a borrower's rights, interests, or ability
  2 26 to receive the intended benefit from the mortgage loan, using
  2 27 reasonable care in the performance of duties, and accounting
  2 28 for all the borrower's money and property received as agent.
  2 29    The bill states that the duty of agency shall not be
  2 30 construed to prohibit a licensee or individual registrant from
  2 31 contracting for or collecting a fee after services have been
  2 32 rendered which was disclosed and agreed to by the borrower in
  2 33 advance of the provision of the services, and shall also not
  2 34 be construed to require a licensee or individual registrant to
  2 35 obtain a loan for the borrower containing terms or conditions
  3  1 not available to the licensee or individual registrant in the
  3  2 usual course of business, or to obtain a loan for the borrower
  3  3 from a mortgage lender with whom the licensee or individual
  3  4 registrant does not have a business relationship.  The bill
  3  5 provides that the duty of agency and standards of care cannot
  3  6 be waived or modified by contract or otherwise.
  3  7    A violation of the bill's provisions subjects a licensee to
  3  8 the disciplinary provisions of Code chapter 535B, including
  3  9 license suspension and revocation, and imposition of civil
  3 10 penalties in an amount not to exceed $5,000 per violation.
  3 11 LSB 1295DP 83
  3 12 rn/nh/5.1