6-983. Required accounting practices and
records; escrow of monies; disclosure
A. A commercial mortgage banker shall keep and maintain at all times correct and
complete records as prescribed by the superintendent that will enable the superintendent
to determine whether the licensee is complying with this article. If the commercial
mortgage banker operates two or more licensed places of business in this state, after
notifying the superintendent, he may maintain such records at his principal place of
business in this state, except that a commercial mortgage banker, with the approval of
the superintendent, may maintain the records outside of this state. For records kept
outside this state, a commercial mortgage banker shall make the records available to the
superintendent in this state not more than three business days after demand and shall
provide for the acceptance of collect calls or provide a toll free telephone number to
borrowers to obtain information from the records if the licensed place of business in
this state cannot readily provide the information requested by the borrowers. A
commercial mortgage banker shall maintain original documents or clearly legible copies of
all commercial mortgage loan transactions for at least two years from the date of the
commercial mortgage loan closing.
B. A commercial mortgage banker shall observe generally accepted accounting
principles and practices.
C. If a commercial mortgage banker requires an advance or fee to be paid in
connection with an application for a commercial mortgage loan there shall be a written
agreement. The parties shall sign the written agreement, and the agreement shall contain
terms pertaining to the payment of the fee or disposition of the advance or fee, whether
the loan is finally consummated or not, and a term for which the agreement is to remain
in force before return of the advance or fee for nonperformance can be required. The
licensee shall immediately deposit advances or fees in a trust account in a bank, savings
bank or savings and loan association that is fully insured by the federal deposit
insurance corporation or any successor agency, and the advances or fees shall not be
commingled with other monies. The trust account shall designate the licensee as trustee
and shall provide for withdrawing the monies without previous notice. Withdrawals shall
only be disbursed according to the terms of the agreement. A licensee who receives
advances or fees shall preserve and on request make available to the superintendent all
deposits, withdrawal receipts and statements of account rendered by the bank, savings
bank or savings and loan association. The licensee shall further preserve all agreements
between the parties involved in the transaction and all contracts, agreements and
instructions to or with the depository and shall keep an accurate accounting of each
separate bank account in which the trust monies have been deposited. If the loan is
declined by or on behalf of the lender or canceled by the applicant, all documents
provided by or at the expense of the applicant, including any appraisal, are the property
of the applicant. At the applicant's discretion, the documents shall be returned or
transferred to any designated financial institution or enterprise without additional
consideration except for fees for which the applicant has previously contracted, if the
document is not prohibited by law from being transferred or returned.
D. If periodic payments are to be collected from the mortgagor to provide for
payments by the mortgagee of taxes, assessments, insurance premiums, ground rents or
other current charges against the real estate security, the estimated payment amount
stated to the mortgagor by the commercial mortgage banker shall be such that the total of
these payments collected for each category during the tax or other period will
approximate the actual tax or other payment when due. The licensee shall annually
account to the borrower for all such periodic payments of taxes, assessments, insurance
premiums, ground rents and other current charges and, to the extent monies have been
collected for payment, shall pay them promptly.
|