What Happened?
On May 13 and 14, Georgia Governor Brian Kemp signed into law three measures that amend or expand existing consumer financial protections for Georgians, and impact mortgage lending and servicing as follows:
- HB 240, effectively immediately upon approval on May 13, prohibits unfair and deceptive practices related to mortgage trigger leads.
- HB 241, effective July 1, clarifies allowable convenience fees applicable to loans made under the Georgia Residential Mortgage Act (“GRMA”) (as well as laws applicable to installment loans, retail installment and home solicitation sales contracts, motor vehicle sales financing contracts, and insurance premium finance companies).
- HB 15, effective July 1, in addition to certain licensing amendments, amends the GRMA to impose capital, net worth, liquidity and corporate governance obligation on mortgage lenders and servicers. Noteworthy, the measure requires mortgage lenders and brokers to prepare an annual risk assessment delivered to its board of directors and make it available to the regulators upon request.
Why Is It Important?
Taken together, these pieces of legislation signal Georgia’s intent to enhance consumer protections with respect to mortgage lending and servicing.
Trigger Lead Legislation: HB 240 amends the state’s unfair and deceptive trade law, called the Fair Business Practices Act (“FBPA”). First, the measure specifies that use of a mortgage trigger lead to solicit a consumer who has applied for a loan with a different mortgage lender or broker (as those terms are defined in the GRMA) is considered unfair or deceptive when it (1) fails to clearly state in the solicitation that the solicitor is not affiliated with the mortgage lender or broker the consumer initially applied with; (2) fails to comply with state and federal requirements to make a firm offer of credit to the consumer; (3) uses the information of consumers who have opted out of being contacted; or (4) offers rates, terms, or costs with the knowledge that they will subsequently be changed to the detriment of the consumer. For purposes of this provision, a “mortgage trigger lead,” in accordance with the federal Fair Credit Reporting Act, is defined as a “consumer report triggered by an inquiry made with a consumer reporting agency in response to an application for credit.” Second, the measure amends the GRMA to include a new paragraph prohibiting mortgage lenders and brokers form engaging in unfair or deceptive practices as outlined in Section 10-1-393.20 of the Georgia Code.
Banking and Finance Laws: HB 15 implements a variety of changes to Georgia’s banking and finance laws. The measure amends requirements for mortgage lenders related to licensing, reporting to the Nationwide Multistate Licensing System and registry, quarterly and annual reporting obligations, and calculating liquidity and net worth. The measure also requires mortgage brokers and lenders to have a board of directors and outlines their responsibilities including designing governance frameworks, monitoring licensee compliance, accurately reporting, conducting internal audits, and establishing risk management programs. The measure creates two new sections of the GRMA of particular relevance to mortgage lenders and mortgage brokers:
- Section 7-1-1022 outlines capital, liquidity, and net worth requirements, to be reported in accordance with generally accepted accounting principles. If a licensed mortgage lender is a covered servicer (meaning that it has a servicing portfolio of 2,000 or more residential mortgages serviced or subserviced as reported in its most recent mortgage call report), it must maintain the requisite the capital, liquidity, and net worth outlined in the Federal Housing Finance Agency Eligibility Requirements for Enterprise Single-family Seller/Servicers. All other lenders must maintain a minimum net worth of $100,000 and evidence of $1 million of liquidity (which may include a warehouse line of credit).
- Section 7-1-1023 mirrors the corporate governance requirements in the Model Capital, Liquidity and Risk Management Framework for non-bank lenders created by the Conference of State Bank Supervisors. Every mortgage lender and broker must establish a board of directors responsible for establishing a written corporate governance framework, monitoring the licensee’s compliance with said framework, reporting regularly, developing internal audit requirements, creating risk management programs and assessments, and conducting formal reviews. The adoption of financial and corporate governance standards for servicers also follows similar legislation in other states (including Connecticut and Maryland, and Iowa) on which we have previously reported.
Convenience Fees: HB 241 revises the general provisions of Georgia contract law to amend requirements for merchants and lenders seeking to utilize convenience fees when processing electronic payments. The measure sets a floor for convenience fees, allowing merchants to charge whichever is greater — $5.00 or the average actual cost (defined as the amount paid by a lender to a third party or the amount incurred by a third party) of a specific type of payment made by electronic means. These provisions apply to banking and financial institutions, as well as lenders of retail installment loans, home solicitation sales contracts, vehicle financing contracts, and insurance premium finance agreements.
What To Do Now?
Licensed mortgage lenders and mortgage brokers should familiarize themselves with the requirements under the newly amended GRMA and FBPA, particularly the prohibitions on deceptive or unfair practices when using mortgage trigger leads or extending credit.
Mortgage lenders and mortgage brokers should also understand the newly updated licensing, reporting, governance, and liquidity requirements to ensure compliance with Georgia’s updated banking and finance regulations.
When utilizing convenience fees, lenders and merchants should verify that such fees do not exceed the maximum amount and should implement the requisite payment processing options. The $5.00 minimum may allow changes in pricing structures for some lenders and merchants.
*We would like to thank Summer Associate Elise Hall for her contribution to this blog post.
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