54-14-12. Definitions.

Terms used in this chapter mean:

(1)    "Depository institution," the same meaning as provided in 12 U.S.C. § 1813(c) as of January 1, 2009, and includes any credit union;

(2)    "Director," the director of the Division of Banking of the Department of Labor and Regulation;

(3)    "Division," the Division of Banking of the Department of Labor and Regulation;

(4)    "Federal banking agencies," 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, and the Federal Deposit Insurance Corporation;

(5)    "Immediate family member," a spouse, child, sibling, parent, grandparent, grandchild, stepparent, stepchildren, stepsibling, and adoptive relationship;

(6)    "Individual," a natural person;

(7)    "Licensee," the person holding a license provided by this chapter;

(8)    "Mortgage lender," any person who, for valuable consideration, originates, sells, or services mortgages, or holds himself, herself, or itself out as a person who, for valuable consideration, originates, sells, or services mortgages, other than those exempt pursuant to § 54-14-21;

(9)    "Mortgage broker," any person who acts as a mortgage loan originator and has not less than a ten percent interest in a mortgage brokerage;

(10)    "Mortgage brokerage," any person engaged in placing mortgage loans with investors for a fee, but does not service such loans;

(11)    "Mortgage lending activities," for compensation, either directly or indirectly, accepting or offering to accept applications for making mortgage loans;

(12)    "Nationwide mortgage licensing system and registry," 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;

(13)    "Regional revolving loan fund," any regional revolving loan fund with a service area of at least five South Dakota counties, a designated staff for loan processing and servicing, a loan portfolio of at least one million dollars, and which is governed by a board of directors that meets at least quarterly;

(14)    "Residential mortgage loan," 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 12 C.F.R. § 226.2(19), or residential real estate upon which is constructed or intended to be constructed a dwelling;

(15)    "Unique identifier," a number or other identifier assigned by protocols established by the nationwide mortgage licensing system and registry.

Source: SL 2007, ch 279, § 1; SL 2008, ch 255, § 1; SL 2009, ch 251, § 1; SL 2011, ch 1 (Ex. Ord. 11-1), § 36, eff. Apr. 12, 2011.

54-14-12.1. Loan processor or underwriter defined.

For the purposes of this chapter, the term, loan processor or underwriter, means any 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 according to this chapter, or a person exempt according to this chapter. Clerical or support duties subsequent to the receipt of an application include the receipt, collection, distribution, and analysis of information common for the processing or underwriting of a mortgage loan; and communicating with a consumer to obtain the information necessary for the processing or underwriting of a loan, to the extent that the communication does not include offering or negotiating loan rates or terms, or counseling consumers about mortgage loan rates or terms.

No individual engaging solely in loan processor or underwriter activities may 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 the individual can or will perform any of the activities of a mortgage loan originator.

Source: SL 2009, ch 251, § 2.

54-14-12.2. Mortgage loan originator defined.

For the purposes of this chapter, the term, mortgage loan originator, means an individual who for compensation or gain or in the expectation of compensation or gain takes a mortgage loan application or offers or negotiates terms of a mortgage loan.

A mortgage loan originator does not include:

(1)    An individual engaged solely as a loan processor or underwriter except as otherwise provided in § 54-14-12.1

(2)    An individual or entity that performs only real estate brokerage activities and is licensed or registered in accordance with applicable South Dakota law, unless the individual or entity 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; or

(3)    Any individual or entity solely involved in extensions of credit relating to timeshare plans, as that term is defined in 11 U.S.C. § 101(53D) as of January 1, 2009.

Source: SL 2009, ch 251, § 3.

54-14-12.3. Real estate brokerage activity defined.

For the purposes of this chapter, the term, real estate brokerage activity, means any activity that involves offering or providing real estate brokerage services to the public, including:

(1)    Acting as a real estate agent or real estate broker for a buyer, seller, lessor, or lessee of real property;

(2)    Bringing together parties interested in the sale, purchase, lease, rental, or exchange of real property;

(3)    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);

(4)    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;

(5)    Offering to engage in any activity, or act in any capacity, described in this section.

Source: SL 2009, ch 251, § 4.

54-14-12.4. Registered mortgage loan originator defined.

For the purposes of this chapter, the term, registered mortgage loan originator, means any individual who:

(1)    Meets the definition of mortgage loan originator and is an employee of:

(a)    A depository institution;

(b)    A subsidiary that is owned and controlled by a depository institution and regulated by a federal banking agency; or

(c)    An institution regulated by the Farm Credit Administration; and

(2)    Is registered with, and maintains a unique identifier through, the nationwide mortgage licensing system and registry.

Source: SL 2009, ch 251, § 5.

54-14-13. License required for mortgage lenders, brokerage, brokers, and loan originators--Identification through nationwide mortgage licensing system and registry--Exemption.

No person may act as a mortgage lender, mortgage brokerage, mortgage broker, or mortgage loan originator in this state or use the title, mortgage lender, mortgage brokerage, mortgage broker, or mortgage loan originator with respect to any property located in South Dakota without first obtaining and maintaining a license according to the requirements of this chapter. Each person shall be licensed or registered, and maintain a unique identifier through the nationwide mortgage licensing system and registry.

The requirements of this chapter, except for the provisions of chapter 10-43 as referenced in § 54-14-30, do not apply to any person who, on, before, or after July 1, 2017, originates, sells, or services five or fewer nonresidential mortgage loans in a twelve-month period as long as the total amount of the loans outstanding does not exceed four million dollars. The exemption under this section applies jointly to every entity in which a person has an equity interest, whether the loan or loans are made by that person or through an entity in which the person holds an equity interest.

Any person exempted by the provisions of this section shall report to the division annually, no later than December thirty-first of 2017, and every subsequent year for any year in which nonresidential mortgage loans are originated, sold, or serviced. The annual report shall contain the name and address of the person who originated, sold, or serviced nonresidential mortgage loans, the number of nonresidential mortgage loans originated, sold, or serviced in the preceding calendar year, and the total balance of all nonresidential mortgage loans originated, sold, or serviced.

Source: SL 2007, ch 279, § 2; SL 2009, ch 251, § 6; SL 2017, ch 207, § 1.

54-14-13.1. (See § 54-14-13.3 for effective dates) Mortgage loan originator license--Required findings.

The director may not issue a mortgage loan originator license unless the director makes the following findings:

(1)    The applicant has never had a mortgage loan originator license revoked in any governmental jurisdiction. No revocation for which there has been a subsequent formal vacation of the revocation may be considered by the director;

(2)    The applicant has not been convicted of, or pled guilty or nolo contendere to, a felony in a domestic, foreign, or military court:

(a)    During the seven year period preceding the date of the application for licensing and registration; or

(b)    At any time preceding the date of application, if the felony involved an act of fraud, dishonesty, breach of trust, or money laundering.

No pardon of a conviction may be considered a conviction for purposes of this subdivision;

(3)    The applicant has demonstrated financial responsibility, character, and general fitness such as to command the confidence of the community and to warrant a determination that the mortgage loan originator will operate honestly, fairly, and efficiently within the purposes of this chapter. For purposes of this subdivision, an applicant shows a lack of financial responsibility if the applicant has shown a disregard in the management of his or her own financial affairs. Factors to be considered may include current outstanding judgments, except judgments solely as a result of medical expenses; current outstanding tax liens or other governmental liens and filings; foreclosures within the past three years; or a pattern of seriously delinquent accounts within the past three years;

(4)    The applicant has completed the pre-licensing education requirement provided for by rule pursuant to § 54-14-31;

(5)    The applicant has passed a written test that meets the test requirement provided for by rule pursuant to § 54-14-31; and

(6)    The applicant has met the surety bond requirement as required by § 54-14-24 and provided for by rule pursuant to § 54-14-24.

Source: SL 2009, ch 251, § 7.

54-14-13.2. (See § 54-14-13.3 for effective dates) Mortgage loan originator license--Renewal standards.

The minimum standards for license renewal for mortgage loan originators shall include the following:

(1)    The mortgage loan originator continues to meet the minimum standards for license issuance under subdivisions 54-14-13.1(1) to (5), inclusive; and

(2)    The mortgage loan originator has satisfied the annual continuing education requirements provided by rule pursuant to § 54-14-31.

Source: SL 2009, ch 251, § 9.

54-14-13.3. Effective dates of §§ 54-14-13.1 and 54-14-13.2.

The effective dates of §§ 54-14-13.1 and 54-14-13.2 are as follows:

(1)    July 31, 2010, for any individual other than an individual described in subdivision (2); and

(2)    December 31, 2010, for any individual licensed as a mortgage loan originator as of July 1, 2009.

Source: SL 2009, ch 251, § 28.

54-14-13.4. License required for loan processor or underwriter--Identification through nationwide mortgage licensing system and registry.

No loan processor or underwriter who is an independent contractor may engage in the activities of a loan processor or underwriter unless the loan processor or underwriter obtains and maintains a license under this chapter. Each loan processor or underwriter who is an independent contractor licensed as a mortgage loan originator shall have and maintain a valid unique identifier issued by the nationwide mortgage licensing system and registry.

Source: SL 2009, ch 251, § 13.

54-14-13.5. License required for company originating, selling, or servicing nonresidential mortgage loans.

Any company who, for valuable consideration, originates, sells, or services nonresidential mortgage loans, shall apply for, on forms prescribed by the director, and maintain, a mortgage lending license and is subject to the tax as provided in § 54-14-30. The tax required in § 54-14-30 shall be imposed only on those loans funded after December 31, 2009. The requirement of a surety bond as provided in § 54-14-24 does not apply to a company licensed under this section.

Any individual solely employed by or solely acting as an intermediary on behalf of a company licensed pursuant to this section is not required to hold an individual license under this chapter. Any individual acting as an intermediary, on behalf of a company licensed as provided in this section, shall be disclosed to the director during the application process and annually thereafter.

The requirements of registration with the nationwide mortgage licensing system and registry do not apply to any company or its employees or intermediaries licensed pursuant to this section.

Source: SL 2009, ch 251, § 27; SL 2012, ch 252, § 28.

54-14-14. Application for licensure or registration.

Any applicant for licensure or registration shall submit to the director an application on forms prescribed by the division. The forms shall include, at a minimum, all addresses at which business is to be conducted, the names and titles of each director and principal officer of the business, and a description of the business activities and experience of the applicant.

Source: SL 2007, ch 279, § 3.

54-14-15. Information to be furnished to nationwide mortgage licensing system and registry--Distribution of information--Criminal background check.

In connection with an application for licensing as a mortgage lender, mortgage broker, or mortgage loan originator, the applicant shall furnish to the nationwide mortgage licensing system and registry information concerning the applicant's identity, including:

(1)    Fingerprints for submission to the Federal Bureau of Investigation, and any governmental agency or entity authorized to receive such information, for a state, national, and international criminal history background check; and

(2)    Personal history and experience in a form prescribed by the nationwide mortgage licensing system and registry, including the submission of authorization for the nationwide mortgage licensing system and registry and the director to obtain:

(a)    An independent credit report from a consumer reporting agency described in 15 U.S.C. § 1681(a) as of January 1, 2009; and

(b)    Information related to any administrative, civil, or criminal findings by any governmental jurisdiction.

The Division of Banking may require a state and federal criminal background check for any licensee who is the subject of a disciplinary investigation by the division. Failure to submit or cooperate with the criminal background investigation is grounds for denial of an application or may result in revocation of a license. The applicant shall pay for any fees charged for the cost of fingerprinting or the criminal background investigation.

The director may use the nationwide mortgage licensing system and registry as a channeling agent for requesting information from and distributing information to the United States Department of Justice or any governmental agency. The director may use the nationwide mortgage licensing system and registry as a channeling agent for requesting and distributing information to and from any source so directed by the director.

Source: SL 2007, ch 279, § 4; SL 2009, ch 251, § 8.

54-14-16. Fees.

The applicant for an initial license shall submit a fee in the amount of not more than two hundred fifty dollars for a mortgage loan originator, not more than five hundred dollars for a mortgage broker or mortgage brokerage license, and not more than one thousand dollars for a mortgage lender license. The director shall establish the fees by rules promulgated pursuant to chapter 1-26.

Source: SL 2007, ch 279, § 5; SL 2009, ch 251, § 10.

54-14-17. License and registration not assignable.

No license or registration granted pursuant to this chapter is assignable.

Source: SL 2007, ch 279, § 6.

54-14-18. Expiration of license or registration.

Any license or registration granted under this chapter expires on the following December thirty-first after its issuance.

Source: SL 2007, ch 279, § 7.

54-14-19. Fees for renewal of license.

Any application for renewal of a license under this chapter shall be postmarked to the director by December first and shall be accompanied by a fee to be established by the director by rules promulgated pursuant to chapter 1-26. The fee to transact business as a mortgage loan originator may not exceed two hundred fifty dollars. The fee to transact business as a mortgage broker or mortgage brokerage may not exceed five hundred dollars. The fee to transact business as a mortgage lender may not exceed one thousand dollars. Any licensee or registrant that files for renewal after December first and before January first of the next calendar year shall pay a late fee in addition to the renewal fee. The late fee, not to exceed twenty-five percent of the renewal fee, shall be established by the director by rules promulgated pursuant to chapter 1-26. After January first no license may be issued unless an application is filed pursuant to §§ 54-14-13 to 54-14-16, inclusive.

Source: SL 2007, ch 279, § 8; SL 2009, ch 251, § 11.

54-14-20. Exemption of certain entities from chapter.

The State of South Dakota, any political subdivision of the state, and any quasi-governmental organization created by an executive order of the State of South Dakota and any subsidiary of such organization; any nonprofit corporation formed pursuant to chapter 47-22; any nonprofit United States Treasury Community Development Financial Institution, Small Business Administration Certified Development Company, or Regional Revolving Loan Fund; or any commercial club, chamber of commerce, or industrial development corporation formed pursuant to § 9-12-11 or 9-27-37 is exempt from the requirements of this chapter.

Source: SL 2007, ch 279, § 9; SL 2008, ch 256, § 1; SL 2009, ch 251, § 24.

54-14-20.1. Exemption of certain persons from mortgage loan originator license requirement.

The following are exempt from the requirement of obtaining a mortgage loan originator license:

(1)    Any individual who offers or negotiates terms of a mortgage loan with or on behalf of an immediate family member of the individual;

(2)    Any individual who offers or negotiates terms of a residential mortgage loan secured by a dwelling that served as the individual's residence; or

(3)    Any individual who, on, before, or after July 1, 2017, offers or negotiates terms of five or fewer nonresidential mortgage loans in a twelve-month period as long as the total amount of the loans outstanding does not exceed four million dollars.

Source: SL 2009, ch 251, § 23; SL 2012, ch 237, § 1; SL 2017, ch 207, § 2.

54-14-20.2. Exemption of attorneys from mortgage loan originator license requirement.

Any attorney licensed in this state performing activities that come within the definition of a mortgage loan originator, is not required to be licensed as a mortgage loan originator if such activities are:

(1)    Considered by the South Dakota Supreme Court to be part of the authorized practice of law in South Dakota;

(2)    Carried out within an attorney-client relationship; and

(3)    Accomplished by the attorney in compliance with all applicable laws, rules, and standards of professional conduct.

Source: SL 2012, ch 237, § 2.

54-14-21. Exemption of certain entities from licensing requirements.

The following entities are exempt from the requirement of a mortgage lender, mortgage brokerage, or mortgage broker license as required by this chapter:

(1)    Any state bank and its subsidiary;

(2)    Any national bank and its subsidiary;

(3)    Any bank holding company and its subsidiary;

(4)    Any other federally insured financial institution, and its holding company and subsidiary; and

(5)    Any South Dakota chartered trust company.

Any registered mortgage loan originator, if acting for a depository institution, is exempt from the provisions of this chapter.

Source: SL 2007, ch 279, § 10; SL 2009, ch 251, § 12.

54-14-22. Repealed by SL 2012, ch 252, § 29.

54-14-23. Mortgage broker or lender permitted to use services of mortgage loan originator.

Any mortgage broker or mortgage lender licensed to practice in the State of South Dakota may use the services of a mortgage loan originator that operates under direct control and supervision of the mortgage broker or mortgage lender. The mortgage loan originator shall be registered by the director and while registered and employed by a mortgage broker or mortgage lender may not be deemed to be operating as a mortgage broker or mortgage lender.

Source: SL 2007, ch 279, § 12.

54-14-24. Surety bond requirements.

Each mortgage lender, mortgage brokerage, mortgage broker, or mortgage loan originator shall submit with any application, and maintain at all times, a surety bond in an amount that reflects the total dollar amount of loans originated by the licensee and the licensee's employees and agents, but not less than twenty-five thousand dollars. The surety bond shall be in a form and amount as prescribed by the director.

Each mortgage loan originator and mortgage broker shall be covered by a surety bond in accordance with this section. If the mortgage loan originator or mortgage broker is an employee or exclusive agent of a person subject to this chapter, the surety bond of such person can be used in lieu of the mortgage loan originator or mortgage broker's surety bond requirement. The surety bond shall provide coverage for each mortgage loan originator and mortgage broker in an amount prescribed by this section.

The bond shall be issued by a surety company qualified to do business as a surety in this state. The bond shall be in favor of this state for the use of this state and any person who has a cause of action under this chapter against the licensee. The bond shall be conditioned on:

(1)    The licensee's faithful performance under this chapter and any rules adopted pursuant to this chapter; and

(2)    The payment of any amounts that are due to the state or another person during the time the bond is in force.

The bond may be continuous, and regardless of how long the bond remains in force, the aggregate liability of a surety to all persons damaged by a licensee's violation of the provisions of this chapter may not exceed the amount of the bond. The bond may be cancelled by the surety upon thirty days notice to the licensee and the director, and the surety's liability on the bond shall also terminate upon the effective date of any suspension or revocation of the license.

If an action is commenced on a licensee's bond, the director may require the filing of a new bond. Immediately upon recovery in any action on the bond the licensee shall file a new bond.

The director may promulgate rules pursuant to chapter 1-26 with respect to the requirements for such surety bonds as are necessary to accomplish the purposes of this chapter.

Source: SL 2007, ch 279, § 13; SL 2008, ch 255, § 2; SL 2009, ch 251, § 14.

54-14-25. Violation of license or registration requirements--Misdemeanor.

Any person, who without first obtaining a license or registration under this chapter, engages in the business or occupation of, or advertises or holds the person out as, or claims to be, or temporarily acts as, a mortgage broker, mortgage brokerage, mortgage lender, or mortgage loan originator in this state is guilty of a Class 2 misdemeanor and may be held responsible for all costs of prosecution, including restitution.

Source: SL 2007, ch 279, § 14; SL 2009, ch 251, § 26.

54-14-25.1. Civil penalty for acting without required license or registration.

The director may impose a civil penalty in an amount not to exceed one thousand dollars upon any person acting as a mortgage lender, mortgage brokerage, mortgage broker, or mortgage loan originator in this state without the required license or registration. Each instance of operating without a license, or holding oneself out as being authorized to conduct the business authorized by this chapter, constitutes a separate violation of this chapter and subjects any such person to a civil penalty for each violation. A civil penalty for a series of violations may not exceed twenty-five thousand dollars.

Source: SL 2009, ch 251, § 15.

54-14-26. Examination and investigation by director.

Any licensee or registrant is subject to examination and investigation by the director. The director shall promulgate rules pursuant to chapter 1-26 that specify the process by which examinations and investigations will be performed.

Source: SL 2007, ch 279, § 15.

54-14-27. Conditioning, denial, nonrenewal, suspension, or revocation of license.

The director may condition, deny, decline to renew, suspend for a period not to exceed six months, or revoke a license if the director finds:

(1)    Any fact or condition exists that, if it had existed at the time the licensee applied for its license, would have been grounds for denying the application;

(2)    The licensee violated any provisions of this chapter or any rule or order promulgated by the director;

(3)    The licensee refuses to permit the director to make any examination authorized by this chapter or rule promulgated pursuant to this chapter, or any federal statute, rule, or regulation pertaining to mortgage lending;

(4)    The licensee willfully fails to make any report required of this chapter;

(5)    The competence, experience, character, or general fitness of the licensee indicates that it is not in the public interest to permit the licensee to continue to conduct business;

(6)    The bond of the licensee has been revoked or cancelled by the surety;

(7)    The licensee or any partner, officer, director, manager, or employee of the licensee has been convicted of a felony or a misdemeanor involving any aspect of the financial services business;

(8)    The licensee or any partner, officer, director, manager, or employee of the licensee has had a license substantially equivalent to a license under this chapter, and issued by another state, denied, revoked or suspended under the laws of that state;

(9)    The licensee has filed an application for a license which as of the date the license was issued, or as of the date of an order denying, suspending, or revoking a license, was incomplete in any material respect or contained any statement that was, in light of the circumstances under which it was made, false or misleading with respect to any material fact.

The director may revoke a license for good cause pursuant to chapter 1-26. If the licensee is the holder of more than one license, the director may revoke any or all of the licenses.

Source: SL 2007, ch 279, § 16; SL 2009, ch 251, § 16.

54-14-28. Reinstatement of license or registration--Termination of suspension--New license or registration.

The director may, in the director's discretion, reinstate a license or registration, terminate a suspension, or grant a new license or registration to any person whose license or registration has been revoked or suspended if no fact or condition then exists which would justify the director in refusing to grant a license or registration.

Source: SL 2007, ch 279, § 17.

54-14-29. Procedure for contesting suspension or revocation.

Any licensee whose license or registration is subject to suspension or revocation by the director, may contest such suspension or revocation in accordance with the provisions of chapter 1-26.

Source: SL 2007, ch 279, § 18.

54-14-30. Annual tax upon net income--Exemptions.

Any licensee under this chapter, in addition to the license and other fees provided by this chapter, shall pay the annual tax provided in chapter 10-43, upon the net income of the licensee measured by the net income assignable to the licensee's business in South Dakota. The State of South Dakota, any political subdivision of the state, and any quasi-governmental organization created by an executive order of the State of South Dakota and any subsidiary of such organization; any nonprofit United States Treasury Community Development Financial Institution, Small Business Administration Certified Development Company, or Regional Revolving Loan Fund; or any commercial club, chamber of commerce, or industrial development corporation formed pursuant to § 9-12-11 or 9-27-37 is exempt from the payment of this tax.

Source: SL 2007, ch 279, § 19.

54-14-31. Promulgation of rules regarding licensing, education, and fees.

The director may promulgate rules pursuant to chapter 1-26 for the pre-licensing education, written testing, continuing education, personal history, and experience checks of mortgage brokers, mortgage brokerages, mortgage lenders, and mortgage loan originators, and for the management and administration of licenses and registrations issued pursuant to this chapter.

The director may promulgate rules pursuant to chapter 1-26 to establish fees required for the licensure and renewal of licenses through the nationwide mortgage licensing system and registry in addition to those fees established in §§ 54-14-16 and 54-14-19. Such fees may not exceed five hundred dollars.

Source: SL 2007, ch 279, § 20; SL 2009, ch 251, § 17.

54-14-32. Disposition of fees.

Fees collected pursuant to this chapter shall be deposited with the state treasurer in the banking special revenue fund created in § 51A-2-30. Expenditures from the fund shall be appropriated through the normal budget process.

Source: SL 2007, ch 279, § 22.

54-14-33. Contracts with nationwide mortgage licensing system.

The director may establish relationships or contracts with the nationwide mortgage licensing system and registry or other entities designated by the nationwide mortgage licensing system and registry to collect and maintain records and process transaction fees or other fees related to licensees or other persons subject to this chapter.

Source: SL 2009, ch 251, § 18.

54-14-34. Promulgation of rules for challenging information entered in nationwide mortgage licensing system.

The director shall establish a process through rules promulgated pursuant to chapter 1-26 to allow mortgage loan originators and mortgage brokers to challenge information entered into the nationwide mortgage licensing system and registry by the director.

Source: SL 2009, ch 251, § 19.

54-14-35. Sharing of information.

The following provisions apply to the sharing of information collected and retained by the director during the administration of this chapter:

(1)    Except as otherwise provided in 12 U.S.C. § 5111 as of January 1, 2009, the requirements under any federal law or § 51A-2-35 regarding privacy or confidentiality of any information or material provided to the nationwide mortgage licensing system and registry, and any privilege arising under federal or state law (including the rules of any federal or state court) with respect to the information or material, continue to apply to the information or material after the information or material has been disclosed to the nationwide mortgage licensing system and registry. The information and material may be shared with all state and federal regulatory officials with mortgage industry oversight authority without the loss of privilege or the loss of confidentiality protections by federal law or § 51A-2-35;

(2)    No information or material that is subject to a privilege or confidentiality under this section is subject to:

(a)    Disclosure under any federal or state law governing the disclosure to the public of information held by an officer or an agency of the federal government or the respective state; or

(b)    Subpoena or discovery, or admission into evidence, in any private civil action or administrative process, unless with respect to any privilege held by the nationwide mortgage licensing system and registry with respect to the information or material, the person to whom the information or material pertains waives, in whole or in part, in the discretion of the person, that privilege.

This section does not apply with respect to the information or material relating to the employment history of, and publicly adjudicated disciplinary and enforcement actions against, mortgage loan originators that is included in the nationwide mortgage licensing system and registry for access by the public.

Source: SL 2009, ch 251, § 20.

54-14-36. Reports of condition--Promulgation of rules.

Each mortgage lender, mortgage brokerage, mortgage broker, and mortgage loan originator shall submit to the nationwide mortgage licensing system and registry reports of condition, which shall be in such form and shall contain such information as the director establishes through rules promulgated pursuant to chapter 1-26.

Source: SL 2009, ch 251, § 21.

54-14-37. Reports of violations and enforcement.

The director shall report on a regular basis violations of this chapter, as well as enforcement actions and other relevant information, to the nationwide mortgage licensing system and registry subject to the provisions contained in § 54-14-35.

Source: SL 2009, ch 251, § 22.

54-14-38. Improper influence on real estate appraisals prohibited--Grounds for discipline.

No mortgage lender, mortgage broker, or mortgage loan originator, required to be licensed or registered by this chapter, with an interest in a real estate transaction or the financing of any loan secured by real estate involving an appraisal assignment may improperly influence or attempt to improperly influence the development, reporting, result, or review of a real estate appraisal by:

(1)    Coercion, extortion, or bribery;

(2)    Withholding or threatened withholding of payment for an appraisal fee;

(3)    Conditioning of the payment of an appraisal fee upon the opinion, conclusion, or valuation to be reached;

(4)    Requesting that the appraiser report a predetermined opinion, conclusion, or valuation or the desired valuation of any person; or

(5)    Any other act or practice that impairs or attempts to impair an appraiser's independence, objectivity, and impartiality.

A violation of this section may constitute grounds for discipline against a mortgage lender, mortgage broker, or mortgage loan originator who is licensed or registered pursuant to this chapter.

Source: SL 2009, ch 192, § 3.

54-14-39. Conduct not constituting improper influence on real estate appraisals.

No person violates § 54-14-38 solely by asking a real estate appraiser to consider additional, appropriate property information, or to provide further detail, substantiation, or explanation for the appraiser's value conclusion, or to correct errors in the appraisal report, or by withholding payment of an appraisal fee based on a bona fide dispute regarding the appraiser's compliance with the appraisal standards adopted by the Department of Labor and Regulation pursuant to this chapter. A person does not violate § 54-14-38 solely by retaining a real estate appraiser from panels or lists on a rotating basis, or by supplying an appraiser with information the appraiser is required to analyze under the appraisal standards adopted by the department, such as agreements of sale, options, or listings of the property to be valued.

Source: SL 2009, ch 192, § 4; SL 2011, ch 1 (Ex. Ord. 11-1), § 162, eff. Apr. 12, 2011.

54-14-40. Remote work--Requirements.

An employee of a licensee may work in a remote location other than the business location identified pursuant to § 54-14-14, if the licensee:

(1)    Ensures in-person interactions with consumers are not conducted at the remote location and the remote location is not represented to consumers as a business location;

(2)    Maintains secure virtual private networks and other appropriate safeguards for licensee and consumer data, information, and records;

(3)    Employs appropriate risk-based monitoring and oversight processes of work performed from a remote location and maintains records of the processes;

(4)    Ensures consumer information and records are not maintained at the remote location;

(5)    Ensures consumer and licensee information and records remain accessible and available for regulatory oversight and examination; and

(6)    Provides appropriate employee training to keep all conversations about and with consumers conducted from the remote location confidential, as if conducted from the business location, and to ensure remote employees work in an environment that maintains confidentiality.

Source: SL 2022, ch 179, § 2.