Chapter 224

224.79(2) (2) Disclosure statement. Before entering into a contract with an individual to provide brokerage services relating to a residential mortgage loan, a mortgage broker shall give the individual a copy of a disclosure statement, explain the content of the statement, and ensure that the individual initials or signs the statement, acknowledging that the individual has read and understands the statement. The disclosure statement shall contain a brief explanation of the relationship between the individual and the mortgage broker under the proposed contract, a brief explanation of the manner in which the mortgage broker may be compensated under the proposed contract, and any additional information required by rule of the division. The division shall promulgate rules to administer this subsection and, by rule, shall specify the form and content of the disclosure statement required under this subsection.

224.79(3) (3) Mortgage broker agency relationship and duties.

224.79(3)(a) (a) In this subsection, “borrower” means the residential mortgage loan applicant or investor on whose behalf a mortgage broker provides, or contracts to provide, mortgage brokerage services.

224.79(3)(b) (b) A mortgage broker, at all times when acting in the capacity of a mortgage broker, has an agency relationship with the borrower.

224.79(3)(c) (c) A mortgage broker owes all of the following duties to the borrower:

224.79(3)(c)1. 1. The mortgage broker shall act in the borrower’s best interest and in the utmost good faith toward the borrower, and may not compromise the borrower’s rights or interests in favor of another’s rights or interests, including those of the mortgage broker.

224.79(3)(c)2. 2. The mortgage broker may not accept, give, or charge any undisclosed compensation or realize any undisclosed remuneration, through direct or indirect means, that inures to the benefit of the mortgage broker on an expenditure made for the borrower.

224.79(3)(c)3. 3. The mortgage broker shall carry out all lawful instructions given by the borrower.

224.79(3)(c)4. 4. The mortgage broker shall disclose to the borrower all material facts of which the mortgage broker has knowledge that might reasonably affect the borrower’s rights or interests or ability to receive the borrower’s intended benefit from the residential mortgage loan, but not facts that are reasonably susceptible to the knowledge of the borrower.

224.79(3)(c)4m. 4m. The mortgage broker shall present loan options in an objective and unbiased manner and disclose the advantages and disadvantages of each loan option.

224.79(3)(c)5. 5. The mortgage broker shall use reasonable care in performing the mortgage broker’s duties.

224.79(3)(c)6. 6. The mortgage broker shall account to the borrower for all money and property received by the mortgage broker as the borrower’s agent.

224.79(3)(d) (d) Nothing in this subsection prohibits a mortgage broker from contracting or collecting a fee for services provided, if the services were disclosed to the borrower before they were provided.

224.79(3)(e) (e) Nothing in this subsection requires a mortgage broker to obtain a residential mortgage loan containing terms or conditions not available to the mortgage broker in the mortgage broker’s usual course of business or to obtain a residential mortgage loan for the borrower from a mortgage lender with whom the mortgage broker does not have a business relationship.

224.79(3)(f) (f) The duties imposed under par. (c) may not be waived.

224.79(3)(g) (g) Every contract under sub. (1), and every disclosure statement under sub. (2), shall identify the agency relationship described in par. (b) and the mortgage broker’s duties imposed under par. (c).

224.79 History History: 2003 a. 260; 2009 a. 2, 188; 2011 a. 233.

224.79 Cross-reference Cross-reference: See also ch. DFI-Bkg 44, Wis. adm. code.

224.80 224.80 Penalties and private cause of action.

224.80(1) (1) Penalties. A person who violates any provision of this subchapter or any rule promulgated under this subchapter may be fined not more than $25,000 or imprisoned for not more than 9 months or both. The district attorney of the county where the violation occurs shall enforce the penalty under this subsection on behalf of the state.

224.80(2) (2) Private cause of action. A person who is aggrieved by an act which is committed by a mortgage banker, mortgage loan originator, or mortgage broker in violation of any provision of this subchapter or of any rule promulgated under this subchapter may recover all of the following in a private action:

224.80(2)(a) (a) An amount equal to the greater of the following:

224.80(2)(a)1. 1. Twice the amount of the cost of loan origination connected with the transaction, except that the liability under this subdivision may not be less than $100 nor greater than $25,000 for each violation.

224.80(2)(a)2. 2. The actual damages, including any incidental and consequential damages, which the person sustained because of the violation.

224.80(2)(b) (b) The aggregate amount of costs and expenses which the court determines were reasonably incurred by the person in connection with the action, together with reasonable attorney fees, notwithstanding s. 814.04 (1).

224.80 History History: 1987 a. 359; 1987 a. 403 ss. 182, 256; Stats. 1987 s. 440.80; 1989 a. 45; 1995 a. 27 s. 6602; Stats. 1995 s. 224.80; 1997 a. 145; 2003 a. 260; 2009 a. 2.

224.80 Annotation A “person who is aggrieved” under sub. (2) is one who suffered at least some actual injury or damage. Avudria v. McGlone Mortgage Company, Inc. 2011 WI App 95, 334 Wis. 2d 480, 802 N.W.2d 524, 10-2032.

224.81 224.81 Limitation on actions for commissions and other compensation. A person who is engaged in the business or acting in the capacity of a mortgage banker, mortgage loan originator, or mortgage broker in this state may not bring or maintain an action in this state to collect a commission, money, or other thing of value for performing an act as a mortgage banker, mortgage loan originator, or mortgage broker without alleging and proving that the person was licensed under this subchapter as a mortgage banker, mortgage loan originator, or mortgage broker when the alleged cause of action arose.

224.81 History History: 1987 a. 359; 1987 a. 403 s. 182; Stats. 1987 s. 440.81; 1995 a. 27 s. 6603; Stats. 1995 s. 224.81; 1997 a. 145; 2009 a. 2.

224.82 224.82 Compensation presumed. In a prosecution arising from a violation of this subchapter, proof that a person acted as a mortgage banker, mortgage loan originator, or mortgage broker is sufficient, unless rebutted, to establish that compensation was received by, or promised to, that person.

224.82 History History: 1987 a. 359; 1987 a. 403 s. 182; Stats. 1987 s. 440.82; 1995 a. 27 s. 6604; Stats. 1995 s. 224.82; 1997 a. 145; 2009 a. 2.

subch. IV of ch. 224 SUBCHAPTER IV

NONDEPOSITORY SMALL BUSINESS LENDERS

224.90 224.90 Definitions. In this subchapter:

224.90(1) (1) “Division” means the division of banking.

224.90(2) (2) “In control” means any of the following:

224.90(2)(a) (a) Owning 10 percent or more of the outstanding voting stock of a nondepository lender.

224.90(2)(b) (b) Possessing, directly or indirectly, alone or in concert with others, the power to control or vote 10 percent or more of the outstanding voting stock of a nondepository lender or to elect or control the election of a majority of the board of directors of a nondepository lender.

224.90(3) (3) “Licensee” means a lender licensed under this subchapter.

224.90(4) (4) “Nondepository lender” means a commercial small business lender that participates in the loan guarantee program of the U.S. small business administration described in 13 CFR 120.2 (a) and that provides financial assistance to small businesses that qualify for financial assistance pursuant to 15 USC 636 (a). “Nondepository lender” does not include a bank, credit union, savings and loan association or savings bank.

224.90 History History: 1999 a. 9.

224.92 224.92 License required. No person may engage in business as a nondepository lender in this state without a license issued under this subchapter.

224.92 History History: 1999 a. 9.

224.923 224.923 License application. An application for a license under this subchapter shall be made to the division in writing on a form to be prescribed by the division. An application for a license under this subchapter shall state the full name and business address of the applicant and each officer, director and person in control of the applicant. The application also shall contain the applicant’s federal employer identification number. In addition, the application shall contain the applicant’s business plan, 3 years of detailed financial projections and other relevant information, all as prescribed by the division.

224.923 History History: 1999 a. 9.

224.927 224.927 Disclosure of certain application information. The division may not disclose an applicant’s federal employer identification number received under s. 224.923, except as follows:

224.927(1) (1) The division may disclose the information to the department of revenue for the sole purpose of requesting certifications under s. 73.0301 and to the department of workforce development for the sole purpose of requesting certifications under s. 108.227.

224.927(2) (2) The division may disclose the information to the department of children and families in accordance with a memorandum of understanding under s. 49.857.

224.927 History History: 1999 a. 9; 2007 a. 20; 2013 a. 36.

224.93 224.93 License approval. After a review of information regarding the directors, officers and controlling persons of the applicant for a license, a review of the applicant’s business plan, including at least three years of detailed financial projections and other information considered relevant by the division, the division may approve an application for a license if the division determines that all of the following conditions are met:

224.93(1) (1) The applicant has at least $500,000 in capital and the amount of capital is adequate for the applicant to transact business as a nondepository lender.

224.93(2) (2) Each director, officer and person in control of the applicant is of good character and sound financial standing; the directors and officers of the applicant are competent to perform their functions with respect to the applicant and the directors and officers of the applicant are collectively adequate to manage the business of the applicant as a nondepository lender.

224.93(3) (3) The business plan of the applicant will be honestly and efficiently conducted in accordance with the intent and purpose of this subchapter.

224.93(4) (4) The proposed activity of the applicant possesses a reasonable prospect for success.

224.93(5) (5) The applicant has paid to the division the application fee prescribed by the division, together with the actual cost incurred by the division in investigating the application.

224.93 History History: 1999 a. 9.

224.935 224.935 Expiration of license.

224.935(1) (1) Generally. Except as provided under sub. (2), a license issued under this subchapter expires on the June 30 following the date on which the license was issued.

224.935(2) (2) Change in control of licensee. A change in the identity or number of individuals that are in control of a licensee terminates the licensee’s license under this subchapter, unless the licensee applies to the division for and receives a renewal of the license no later than 15 days after the change in control.

224.935 History History: 1999 a. 9.

224.94 224.94 Renewal of license. Except as provided under s. 224.935 (2), a licensee shall renew its license by submitting to the division a renewal application and the renewal fee as prescribed by the division not less than 60 days before the date on which the license expires. A renewal application is subject to the same criteria as the criteria for approval of an original license.

224.94 History History: 1999 a. 9.

224.95 224.95 Denial of or disciplinary action relating to license.

224.95(1) (1) Mandatory denial. The division shall deny an application for issuance or renewal of a license under this subchapter if any of the following applies:

224.95(1)(a) (a) The applicant has failed to provide its federal employer identification number under s. 224.923.

224.95(1)(b) (b) The department of revenue has certified under s. 73.0301 that the applicant is liable for delinquent taxes. An applicant whose application for issuance or renewal of a license is denied under this paragraph is entitled to a notice under s. 73.0301 (2) (b) 1. b. and a hearing under s. 73.0301 (5) (a) but is not entitled to a notice or hearing under sub. (4).

224.95(1)(bm) (bm) The department of workforce development has certified under s. 108.227 that the applicant is liable for delinquent unemployment insurance contributions. An applicant whose application for issuance or renewal of a license is denied under this paragraph is entitled to a notice under s. 108.227 (2) (b) 1. b. and a hearing under s. 108.227 (5) (a) but is not entitled to a notice or hearing under sub. (4).

224.95(1)(c) (c) The applicant is an individual who has failed to comply, after appropriate notice, with a subpoena or warrant issued by the department of children and families or a county child support agency under s. 59.53 (5) and related to paternity or child support proceedings or who is delinquent in making court-ordered payments of child or family support, maintenance, birth expenses, medical expenses or other expenses related to the support of a child or former spouse, as provided in a memorandum of understanding entered into under s. 49.857. An applicant whose application for issuance or renewal of a license is denied under this paragraph is entitled to a notice and a hearing under s. 49.857 but is not entitled to a notice or hearing under sub. (4).

224.95(2) (2) Discretionary denial or disciplinary action. The division may deny an application for issuance or renewal of a license under this subchapter or may revoke, suspend or limit a license issued under this subchapter if the division finds that the applicant or nondepository lender did any of the following:

224.95(2)(a) (a) Made a material misstatement in an application for issuance or renewal of a license issued under this subchapter or in information provided to the division.

224.95(2)(b) (b) Demonstrated a lack of competency to act as a nondepository lender.

224.95(2)(c) (c) Violated any provision of this subchapter or any rule of the division.

224.95(3) (3) Disciplinary orders. The division may issue general or special orders necessary to prevent or correct actions by a nondepository lender that constitute cause under this section for revoking, suspending or limiting a license.

224.95(4) (4) Appeal of denial or disciplinary action. A person whose application for issuance or renewal of a license under this subchapter has been denied or whose license has been revoked, suspended or limited under this section may request a hearing under s. 227.42 within 30 days after the date of denial, revocation, suspension or limitation. Failure of a person to request a hearing within the time provided under this subsection is a waiver of the person’s right to a hearing on the denial, revocation, suspension or limitation.

224.95 History History: 1999 a. 9; 2007 a. 20; 2013 a. 36.

224.96 224.96 Required loan loss reserve. Each licensee shall provide for a loan loss reserve sufficient to cover projected loan losses that are not guaranteed by the U.S. government or any agency of the U.S. government.

224.96 History History: 1999 a. 9.

224.97 224.97 Division review of nondepository lender operations. The division may, at any reasonable time, examine the books of account, records, condition and affairs of a nondepository lender licensed under this subchapter. The division shall examine the books of account, records, condition and affairs of every nondepository lender licensed under this subchapter at least once during every 12 month period. The division shall prepare a report of each examination conducted under this section. As part of an examination under this section or as part of the preparation of an examination report, the division may examine under oath any person in control, officer, director, agent, employee or customer of the nondepository lender. The division may require a nondepository lender that is examined under this section to pay to the division a reasonable fee for the costs of conducting the examination.

224.97 History History: 1999 a. 9.

224.98 224.98 Powers of licensee. A licensee may do any of the following:

224.98(1) (1) Participate in the loan guaranty program under 15 USC 636 (a).

224.98(2) (2) Participate in any other government program for which the licensee is eligible and which has as its function the provision or facilitation of financing or management assistance to business firms.

224.98 History History: 1999 a. 9.

224.985 224.985 Required records and reports.

224.985(1) (1) Record keeping. A licensee shall keep books, accounts, and other records in such a form and manner as required by rule of the division. These records shall be kept at a location and shall be preserved for a length of time as prescribed by rule of the division.

224.985(2) (2) Annual report. Not more than 90 days after the close of a licensee’s fiscal year or upon request of the division, every licensee shall file with the division a report containing all of the following:

224.985(2)(a) (a) Financial statements, including the balance sheet, the statement of income or loss, the statement of changes in capital accounts and the statement of changes in financial position of the licensee. The licensee shall ensure that the financial statements have been audited by an independent certified public accountant and prepared in accordance with generally accepted account principles.

224.985(2)(b) (b) Other relevant information requested by the division.

224.985 History History: 1999 a. 9, 185.