NY State Senate Bill S2869

Archive: Last Bill Status - In Senate Committee Banks Committee

Introduced
In Committee
On Floor Calendar
- Passed Senate
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Actions

view actions (3)

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 08, 2014	referred to banks
Feb 12, 2013	reported and committed to codes
Jan 24, 2013	referred to banks

Votes

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Feb 12, 2013 - Banks committee Vote

S2869

committee

Aye

Nay

Aye with Reservations

Absent

Excused

Abstained

S2869 (ACTIVE) - Details

Current Committee:: Senate Banks
Law Section:: Banking Law
Laws Affected:: Add §78-a, amd §§590 & 598, Bank L; amd Art 187 Art Head, amd §§187.00, 187.05, 187.10, 187.15, 187.20 & 187.25, Pen L
Versions Introduced in Other Legislative Sessions:: 2009-2010: S4871
2011-2012: S3781
2015-2016: S3777
2017-2018: S3215
2019-2020: S2088
2021-2022: S1565
2023-2024: S1144

S2869 (ACTIVE) - Summary

Relates to unauthorized entities, unregistered mortgage brokers and mortgage fraud; establishes additional penalties against unlicensed or unregistered persons or entities engaging in activities after receiving a cease and desist notice; relates to the crime of mortgage fraud.

S2869 (ACTIVE) - Sponsor Memo

BILL NUMBER:S2869

TITLE  OF  BILL:   An act to amend the banking law and the penal law, in
relation to unauthorized entities,  unregistered  mortgage  brokers  and
mortgage fraud

PURPOSE:   To help prevent and address illegal and fraudulent activities
in the mortgage industry.

SUMMARY:

Section 78-a is added to the Banking Law to provide  that  the  Criminal
Investigations  Bureau  of  the  Department  of Financial Services shall
refer any instances of a person, partnership,  association,  corporation
or  other entity which is operating without being chartered, licensed or
registered as required under this chapter to the Attorney General and to
any other federal, state or  local  agency  or  entity  for  appropriate
enforcement  action.  At  least  every  six months, the Attorney General
shall provide the Bureau with a written update  of  the  status  of  any
enforcement actions it has taken against such persons or entities.

Paragraph  (e) is added to Section 590(5) of the Banking Law to prohibit
a mortgage banker, mortgage broker or exempt organization from  conduct-
ing  business  with any person, partnership, association, corporation or
other entity which it knows or should have known is acting as a mortgage
banker or a mortgage broker without  being  licensed  or  registered  as

required  by  the  Banking Law. In addition, a mortgage banker, mortgage
broker or exempt organization shall promptly notify  the  Department  of
Financial  Services if it becomes aware of any such unlicensed or unreg-
istered operations.

Section 598(5) of the Banking Law is amended  to  increase  the  maximum
amount  of  civil penalties assessable against an unlicensed or unregis-
tered person engaged illegally in mortgage banking or  brokering  activ-
ities.  Currently,  such Person may be liable for a sum of not less than
the amount paid, nor more than four times the amount paid.  This  amend-
ment  would  provide that, where a non-exempt unlicensed or unregistered
person has continued to engage in  such  unauthorized  activities  after
receiving  a  cease  and  desist  notice  from the Superintendent of the
Department of Financial Services, the maximum amount of liability  shall
be up to ten times the amount paid.

JUSTIFICATION:    New  York State has established a comprehensive system
for regulating, examining and overseeing the activities  and  operations
of  financial  institutions. This regulatory system is important for the
promotion and protection of the financial system, and fox  ensuring  the
protection of consumers.

There  continue  to  be some problems with persons undertaking financial
activities without the required approval of the Department of  Financial
Services.  Licensing  and  regulation  are crucial for the protection of

consumers. Because some entities are avoiding  regulation  and  are  not
complying  with  the  rules established for the protection of consumers,
there is a much greater likelihood that consumers will be defrauded.

In particular, a number of people have operated without authorization as
mortgage brokers, mortgage bankers and money transmitters. Several home-
owners  have  been subjected to abusive lending practices as a result of
the activities of unregulated persons.

Operating without the required authorization under the  Banking  Law  is
already  a  crime,  and  in  some  cases civil penalties may also apply.
However, additional steps need to be taken to attack this problem.   One
concern  raised  in  a State Comptroller's audit was the lack of coordi-
nation between the Department of Financial  Services  and  the  Attorney
General's  Office  in  addressing  the  problem of unregistered mortgage
brokers. These entities have often engaged in misleading, deceptive  and
fraudulent practices, harming many homeowners.

In  order  to  encourage and promote better cooperation, this bill would
require the Department of Financial  Services  to  inform  the  Attorney
General  and  other  appropriate agencies if it learns of any such unau-
thorized entities. The attorney  General  is  directed  to  provide  the
Department  with regular updates on the status of any enforcement action
being taken to prevent the continued operation of unauthorized entities.
This should help ensure that the State remains focused on shutting  down
entities which flaunt the laws and harm consumers.

Given  the  number  of  problems with unauthorized mortgage brokers, the
bill also establishes an affirmative  obligation  on  licensed  mortgage
bankers  and  registered  mortgage  brokers to not conduct business with
these unauthorized entities, and to notify  the  Banking  Department  if
they become aware of such illegal operations.

The  bill  would  also establish the specific crime of mortgage fraud in
order to provide law enforcement officials with the improved ability  to
address  this  growing  problem. Law enforcement officials and financial
regulators have seen a disturbing number of incidents in which  a  mort-
gage  broker  (or  a mortgage banker acting in the capacity of a broker)
falsifies data and documents in order to  secure  approval  of  a  loan,
thereby  enabling the banker or broker to close the loan and collect its
fees. This type of fraudulent action may occur either  with  or  without
the knowledge of the applicant.

This type of fraud victimizes both the borrower and the lender. In these
cases,  the  homeowner  usually receives a loan they can't afford, which
typically ruins them financially and ultimately results in the  loss  of
the  home.  The lender is also victimized as it loses money on these bad
loans.

Federal law already imposes strict penalties for knowingly making  false
statements  in  an attempt to influence the action of a banking institu-
tion on a loan application. However, that law only applies to fraudulent

applications submitted to federally-insured banking  institutions.  This
bill creates state level penalties that can be used for crimes affecting
both  insured  banking  institutions and other types of mortgage bankers
who  are  not  currently  protected  by  the federal law. This new crime
targets those brokers and bankers who actively engage in the forging  of
false supporting documents for a mortgage loan. By cracking down on this
abusive  practice, this legislation will help protect both the consumers
and lenders who are victimized by this practice.

LEGISLATIVE HISTORY:  Bill S.2856 of 2005-06 Passed  Senate  both  years
Bill  S.2746  of 2007-06 Passed Senate both years Bill S.4871 of 2009-10
Referred to Banks Bill S.3781 of 2012 Passed Senate

FISCAL IMPACT: None.

EFFECTIVE DATE:  This act shall take effect on the thirtieth  day  after
it shall have become a law.

S2869 (ACTIVE) - Bill Text download pdf

                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2869

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 24, 2013
                               ___________

Introduced  by  Sen.  SMITH  -- read twice and ordered printed, and when
  printed to be committed to the Committee on Banks

AN ACT to amend the banking law and the penal law, in relation to  unau-
  thorized entities, unregistered mortgage brokers and mortgage fraud

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The banking law is amended by adding a new section 78-a  to
read as follows:
  S  78-A.  UNAUTHORIZED  ENTITIES.  THE  FINANCIAL  FRAUDS AND CONSUMER
PROTECTION UNIT OF THE DEPARTMENT OF FINANCIAL SERVICES SHALL REFER  ANY
INSTANCES  OF  A  PERSON, PARTNERSHIP, ASSOCIATION, CORPORATION OR OTHER
ENTITY WHICH IS OPERATING WITHOUT BEING CHARTERED,  LICENSED  OR  REGIS-
TERED  AS REQUIRED UNDER THIS CHAPTER TO THE ATTORNEY GENERAL AND TO ANY
OTHER FEDERAL, STATE OR LOCAL AGENCY OR ENTITY FOR APPROPRIATE  ENFORCE-
MENT  ACTION.  AT  LEAST  EVERY  SIX  MONTHS, THE ATTORNEY GENERAL SHALL
PROVIDE THE UNIT WITH A WRITTEN UPDATE OF THE STATUS OF ANY  ENFORCEMENT
ACTIONS IT HAS TAKEN AGAINST SUCH PERSONS OR ENTITIES.
  S  2. Paragraph (e) of subdivision 5 of section 590 of the banking law
is relettered paragraph (f) and a new paragraph (e) is added to read  as
follows:
  (E)  NO  MORTGAGE BANKER, MORTGAGE BROKER OR EXEMPT ORGANIZATION SHALL
CONDUCT BUSINESS WITH ANY PERSON, PARTNERSHIP, ASSOCIATION,  CORPORATION
OR OTHER ENTITY WHICH IT KNOWS OR SHOULD HAVE KNOWN IS ACTING AS A MORT-
GAGE BANKER OR A MORTGAGE BROKER WITHOUT BEING LICENSED OR REGISTERED AS
REQUIRED  BY  THIS ARTICLE. A MORTGAGE BANKER, MORTGAGE BROKER OR EXEMPT
ORGANIZATION SHALL PROMPTLY NOTIFY THE DEPARTMENT OF ANY SUCH UNLICENSED
OR UNREGISTERED OPERATIONS.
  S 3. Subdivision 5 of section 598 of the  banking  law,  as  added  by
chapter 571 of the laws of 1986, is amended to read as follows:
  5.  Civil  penalties  assessable  against  unlicensed  or unregistered
persons or entities. If any non-exempt unlicensed or unregistered person

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07216-01-3

S. 2869                             2

or entity engages in activities encompassed by this article, he shall be
liable to any person or entity affected by such activities for a sum  of
money of not less than the amount of money paid to an affected person or
entity in connection with such activities, nor more than four times such
sum; PROVIDED HOWEVER THAT WHERE A NON-EXEMPT UNLICENSED OR UNREGISTERED
PERSON  HAS  CONTINUED  TO  ENGAGE IN SUCH UNAUTHORIZED ACTIVITIES AFTER
RECEIVING A CEASE AND DESIST NOTICE FROM THE SUPERINTENDENT, THE MAXIMUM
AMOUNT OF LIABILITY SHALL BE UP TO TEN TIMES SUCH SUM. Such sum  may  be
sued  for  and recovered by any person or entity for his use and benefit
in any court of competent jurisdiction.
  S 4.  The article heading of article 187 of the penal law, as added by
chapter 472 of the laws of 2008, is amended to read as follows:
  [RESIDENTIAL] MORTGAGE FRAUD
  S 5. Section 187.00 of the penal law, as amended by chapter 507 of the
laws of 2009, is amended to read as follows:
S 187.00 Definitions.
  As used in this article:
  1. "Person" means any individual or entity.
  2. ["Residential mortgage] "MORTGAGE loan" means a loan  or  agreement
to  extend credit, including the renewal, refinancing or modification of
any such loan, made to a person OR AN ENTITY, which  loan  is  primarily
secured  by  either  a  mortgage,  deed of trust, or other lien upon any
interest in [residential] real property or any certificate of  stock  or
other  evidence  of ownership in, and a proprietary lease from, a corpo-
ration or partnership formed for the purpose of cooperative ownership of
[residential] real property.
  3. ["Residential real property" means  real  property  improved  by  a
one-to-four family dwelling, or a residential unit in a building includ-
ing units owned as condominiums or on a cooperative basis, used or occu-
pied,  or intended to be used or occupied, wholly or partly, as the home
or residence of one or more persons, but shall not refer  to  unimproved
real property upon which such dwellings are to be constructed.
  4.  "Residential  mortgage]  "MORTGAGE fraud" is committed by a person
who, knowingly and with  intent  to  defraud,  presents,  causes  to  be
presented,  or prepares with knowledge or belief that it will be used in
soliciting an applicant for, applying for,  underwriting  or  closing  a
[residential] mortgage loan, or filing with a county clerk of any county
in  the  state  arising out of and related to the closing of a [residen-
tial] mortgage loan, any written statement which:
  (a) contains materially false information concerning any fact material
thereto; or
  (b) conceals, for the purpose of  misleading,  information  concerning
any fact material thereto.
  S  6.  Section 187.05 of the penal law, as added by chapter 472 of the
laws of 2008, is amended to read as follows:
S 187.05 [Residential mortgage] MORTGAGE fraud in the fifth degree.
  A person is guilty of [residential] mortgage fraud in the fifth degree
when he or she commits [residential] mortgage fraud.
  [Residential mortgage] MORTGAGE fraud in the fifth degree is a class A
misdemeanor.
  S 7. Section 187.10 of the penal law, as added by chapter 472  of  the
laws of 2008, is amended to read as follows:
S 187.10 [Residential mortgage] MORTGAGE fraud in the fourth degree.
  A  person  is  guilty  of  [residential]  mortgage fraud in the fourth
degree when he or she commits [residential] mortgage fraud  and  thereby

S. 2869                             3

receives  proceeds  or any other funds in the aggregate in excess of one
thousand dollars.
  [Residential  mortgage] MORTGAGE fraud in the fourth degree is a class
E felony.
  S 8. Section 187.15 of the penal law, as added by chapter 472  of  the
laws of 2008, is amended to read as follows:
S 187.15 [Residential mortgage] MORTGAGE fraud in the third degree.
  A person is guilty of [residential] mortgage fraud in the third degree
when he or she commits [residential] mortgage fraud and thereby receives
proceeds or any other funds in the aggregate in excess of three thousand
dollars.
  [Residential mortgage] MORTGAGE fraud in the third degree is a class D
felony.
  S  9.  Section 187.20 of the penal law, as added by chapter 472 of the
laws of 2008, is amended to read as follows:
S 187.20 [Residential mortgage] MORTGAGE fraud in the second degree.
  A person is guilty of  [residential]  mortgage  fraud  in  the  second
degree  when  he or she commits [residential] mortgage fraud and thereby
receives proceeds or any other funds in the aggregate in excess of fifty
thousand dollars.
  [Residential mortgage] MORTGAGE fraud in the second degree is a  class
C felony.
  S  10. Section 187.25 of the penal law, as added by chapter 472 of the
laws of 2008, is amended to read as follows:
S 187.25 [Residential mortgage] MORTGAGE fraud in the first degree.
  A person is guilty of [residential] mortgage fraud in the first degree
when he or she commits [residential] mortgage fraud and thereby receives
proceeds or any other funds in the aggregate in excess  of  one  million
dollars.
  [Residential mortgage] MORTGAGE fraud in the first degree is a class B
felony.
  S  11.  This act shall take effect on the thirtieth day after it shall
have become a law.

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The New York State Senate

senate Bill S2869

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Archive: Last Bill Status - In Senate Committee Banks Committee

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Votes

Feb 12, 2013 - Banks committee Vote

Banks Committee Vote: Feb 12, 2013

S2869 (ACTIVE) - Details

S2869 (ACTIVE) - Summary

S2869 (ACTIVE) - Sponsor Memo

S2869 (ACTIVE) - Bill Text download pdf

Comments

senate Bill S2869

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Sponsored By

Malcolm A. Smith

Archive: Last Bill Status - In Senate Committee Banks Committee

Your Voice

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Votes

Feb 12, 2013 - Banks committee Vote

Banks Committee Vote: Feb 12, 2013

S2869 (ACTIVE) - Details

S2869 (ACTIVE) - Summary

S2869 (ACTIVE) - Sponsor Memo

S2869 (ACTIVE) - Bill Text download pdf

Comments