12 Apr Maine, Oregon and Utah Legislative Update
Maine has now enacted the Revised Uniform Fiduciary Access to Digital Assets Act, effective April 4, 2018 (the “Maine Act”). The Oregon legislature has enacted legislation setting fees for licensing mortgage servicers, effective April 3, 2018. The Utah Residential Mortgages Practices and Licensing Act (the “Utah Act”) was recently amended, effective May 8, 2018.
Maine Legislative Document 846 / House Paper 595
The Uniform Fiduciary Access to Digital Assets Act (the “Act”) has been enacted in various states on which we have previously reported. (see our Distribution Memoranda dated September 1, 2016 with updates dated February 17, March 30, June 1, July 13, August 9, September 7, November 21, and December 6, 2017).
The acts in each state have minor differences, but the primary focus of the Act is to define digital assets and the parties involved, which generally includes the following:
- Custodian (person or entity that carries, maintains, processes, receives or stores a digital asset of a user)
- Digital Asset (electronic record in which an individual has a right or interest, but does not include an underlying asset or liability unless the asset or liability is itself an electronic record)
- User (person who has an account with a custodian)
- Designated recipient (person chosen by a user using an online tool to administer digital assets of the user)
- Fiduciary (an original, additional or successor personal representative, conservator, agent or trustee).
The state enactments set forth the requirements and obligations for a custodian to provide a designated recipient or fiduciary with access to the digital assets of a user, with slight variations from state to state. In some states, the act also amends the statutory power of attorney, if any, to include a power related to digital assets. The Maine Act includes an amendment to the Maine statutory power of attorney form to include the exercise of authority over the content of an electronic communication of the principal in the grant of agent’s general authority.
Oregon House Bill 5202
As we reported in a memo dated November 8, 2017, mortgage servicers must now be licensed in Oregon. Accordingly, the following licensing fees were enacted by the Oregon legislature, adopted by the Department of Consumer and Business Services, and approved by the Oregon Department of Administrative Services:
- Application fee: $960
- Application fee (branch): $330
- Renewal fee: $480
- Renewal fee (branch): $165
- Hourly examination fee: $75
Utah House Bill 243
The Division of Real Estate (“Division”) may not license an entity and an entity licensed under the Utah Act may not conduct the business of residential mortgage loans unless the entity conducts the entity’s business of residential mortgage loans from a location within the United States. The Division may make rules that define what constitutes conducting the business of residential mortgage loans from a location within the United States.
A licensee, or a person required to be licensed under the Utah Act, must maintain and safeguard in the licensee’s or the person’s possession required records for four years from the last to occur of the following:
- The final entry on a residential mortgage loan is made by that licensee;
- If the residential mortgage loan is serviced by the licensee:
- The residential mortgage loan is paid in full; or
- The licensee ceases to service the residential mortgage loan; or
- If the residential mortgage loan is not serviced by the licensee, the residential mortgage loan is closed.
A failure to respond to a request by the Division in an investigation authorized by law within 10 days after the day on which the request is served is considered as a separate violation.