32-9-103. Definitions. As used in this part, the following definitions apply:
(1) "Administrative or clerical tasks" mean the receipt, collection, and distribution of information common for the processing or underwriting of a residential mortgage loan 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) "Approved education course" means any course approved by the nationwide mortgage licensing system and registry.
(3) "Approved test provider" means any test provider approved by the nationwide mortgage licensing system and registry.
(4) "Bona fide third party" means a person that provides services relative to the origination of a residential mortgage loan. The term includes but is not limited to real estate appraisers and credit reporting agencies.
(5) "Borrower" means a person seeking a residential mortgage loan or an obligor on a residential mortgage loan.
(6) "Branch office" means a location at which a licensee conducts business other than a licensee's principal place of business. The location is considered a branch office if:
(a) the address of the location appears on business cards, stationery, or advertising used by the entity;
(b) the entity's name or advertising suggests that mortgages are made at the location;
(c) the location is held out to the public as a licensee's place of business due to the actions of an employee or independent contractor of the entity; or
(d) the location is controlled directly or indirectly by the entity.
(7) (a) "Control" means the power, directly or indirectly, to direct the management or policies of an entity, whether through ownership of securities, by contract, or otherwise.
(b) A person is presumed to control an entity if that person:
(i) is a director, general partner, or executive officer;
(ii) directly or indirectly has the right to vote 10% or more of a class of a voting security or has the power to sell or direct the sale of 10% or more of a class of voting securities;
(iii) in the case of a limited liability company, is a managing member; or
(iv) in the case of a partnership, has the right to receive upon dissolution or has contributed 10% or more of the capital.
(8) "Department" means the department of administration provided for in 2-15-1001, acting through its division of banking and financial institutions.
(9) "Depository institution" has the meaning provided in section 3 of the Federal Deposit Insurance Act, 12 U.S.C. 1813(c), and includes any credit union.
(10) "Designated manager" means a mortgage loan originator with at least 3 years of experience as a mortgage loan originator or registered mortgage loan originator who is designated by an entity as the individual responsible for the operation of a particular location that is under the designated manager's full management, supervision, and control.
(11) "Dwelling" has the meaning provided in 15 U.S.C. 1602(v).
(12) "Entity" means a business organization, including a sole proprietorship.
(13) "Escrow account" means a depository account with a financial institution that provides deposit insurance and that is separate and distinct from any personal, business, or other account of the mortgage lender or mortgage servicer and is maintained solely for the holding and payment of escrow funds.
(14) "Escrow funds" means funds entrusted to a mortgage lender or mortgage servicer by a borrower for payment of taxes, insurance, or other payments to be made in connection with the servicing of a loan.
(15) "Federal banking agency" 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, or the federal deposit insurance corporation.
(16) "Immediate family member" means a spouse, child, sibling, parent, grandparent, grandchild, stepchild, stepbrother, or stepsister and includes parent, grandparent, child, grandchild, and sibling relationships based upon adoptive relationships.
(17) "Individual" means a natural person.
(18) "Licensee" means a person authorized pursuant to this part to engage in activities regulated by this part. The term does not include an individual who is a registered mortgage loan originator.
(19) "Loan commitment" means a statement transmitted in writing or electronically by a mortgage lender setting forth the terms and conditions upon which the mortgage lender is willing to make a particular residential mortgage loan to a particular borrower.
(20) "Loan processor or underwriter" means an individual who performs administrative or clerical tasks as an employee, subsequent to the receipt of a residential mortgage loan application, at the direction of and subject to the supervision of a licensed mortgage loan originator or registered mortgage loan originator.
(21) "Mortgage" means a consensual interest in real property located in Montana, including improvements, securing a debt evidenced by a mortgage, trust indenture, deed of trust, or other lien on real property.
(22) (a) "Mortgage broker" means an entity that obtains, attempts to obtain, or assists in obtaining a mortgage loan for a borrower from a mortgage lender in return for consideration or in anticipation of consideration.
(b) For purposes of this subsection (22), attempting to or assisting in obtaining a mortgage loan includes referring a borrower to a mortgage lender or mortgage broker, soliciting or offering to solicit a mortgage loan on behalf of a borrower, or negotiating or offering to negotiate the terms or conditions of a mortgage loan with a mortgage lender on behalf of a borrower.
(23) "Mortgage lender" means an entity that closes a residential mortgage loan, advances funds, offers to advance funds, or commits to advancing funds for a mortgage loan applicant.
(24) (a) "Mortgage loan originator" 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.
(b) The term does not include an individual:
(i) engaged solely as a loan processor or underwriter, except as provided in 32-9-129; or
(ii) involved solely in extensions of credit relating to timeshare plans, as that term is defined in 11 U.S.C. 101(53D).
(25) "Mortgage servicer" means an entity that:
(a) engages, for compensation or gain from another or on its own behalf, in the business of receiving any scheduled periodic payment from a borrower pursuant to the terms of a residential mortgage loan, residential mortgage servicing documents, or a residential mortgage servicing contract; or
(b) meets the definition of "servicer" in 12 U.S.C. 2605(i)(2) with respect to residential mortgage loans.
(26) "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 registration of state-licensed mortgage brokers, state-licensed mortgage lenders, state-licensed mortgage servicers, state-licensed mortgage loan originators, and registered mortgage loan originators.
(27) "Nontraditional mortgage product" means any mortgage product other than a 30-year, fixed-rate mortgage.
(28) "Person" means an individual, sole proprietorship, corporation, company, limited liability company, partnership, limited liability partnership, trust, or association.
(29) "Real estate brokerage activities" means activities that involve offering or providing real estate brokerage services to the public, including:
(a) acting as a real estate salesperson 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 the transaction;
(d) engaging in any activity for which a person is required to be licensed as a real estate salesperson or real estate broker under Montana law; or
(e) offering to engage in any activity or act in any capacity described in subsections (29)(a) through (29)(d).
(30) "Registered mortgage loan originator" means an individual who:
(a) meets the definition of mortgage loan originator and is an employee of:
(i) a depository institution;
(ii) a subsidiary that is owned and controlled by a depository institution and 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.
(31) "Residential mortgage loan" means a loan primarily for personal, family, or household use secured by a mortgage, deed of trust, or other equivalent consensual security interest on a dwelling or on residential real estate located in Montana.
(32) "Residential real estate" means any real property located in the state of Montana upon which is constructed a dwelling or upon which a dwelling is intended to be built within a 2-year period, subject to 24 CFR 3500.5(b)(4). The borrower's intent to construct a dwelling is presumed unless the borrower has submitted a written, signed statement to the contrary.
(33) "Trust account" means a depository account with a financial institution that provides deposit insurance that is separate and distinct from any personal, business, or other account of the mortgage broker or the mortgage lender and that is maintained solely for the holding and payment of bona fide third-party fees.
(34) "Trust account funds" means money entrusted to a mortgage lender or mortgage broker during the origination of a mortgage loan for the payment of services provided by a bona fide third party, which does not include the services of a mortgage broker, mortgage lender, or mortgage loan originator. The term includes appraisal fees, credit report fees, and other fees required for the mortgage loan origination.
(35) "Ultimate equity owner" means an individual who, directly or indirectly, owns or controls an ownership interest in a corporation, a foreign corporation, an alien business organization, or any other form of business organization, regardless of whether the individual owns or controls an ownership interest, individually or in any combination, through one or more persons or one or more proxies, powers of attorney, nominees, corporations, associations, partnerships, trusts, joint-stock companies, or other entities or devices.
(36) "Unique identifier" means a number or other identifier assigned by protocols established by the nationwide mortgage licensing system and registry. (See compiler's comment regarding contingent suspension.)
History: En. Sec. 3, Ch. 516, L. 2003; amd. Sec. 1, Ch. 136, L. 2005; amd. Sec. 1, Ch. 498, L. 2007; amd. Sec. 3, Ch. 321, L. 2009; amd. Sec. 21, Ch. 19, L. 2011; amd. Sec. 6, Ch. 317, L. 2011.