30 Apr Nebraska and Nevada Legislative Update
The Nebraska legislature recently enacted legislation, effective May 16, 2013, criminalizing the filing of fraudulent liens and financing statements and amended its laws governing nonconsensual common-law liens. The Nevada legislature recently amended its laws governing mortgage lending, effective May 21, 2013.
NEBRASKA LEGISLATIVE BILL 3
A person commits the offense of fraudulently filing a financing statement, lien, or document if the person directly, or through an intermediary, submits for filing or recording in the public record:
- Any document purporting to create a nonconsensual common-law lien, knowing or having reason to know that the lien is a nonconsensual common-law lien;
- A financing statement, knowing or having reason to know that the financing statement is not based on a bona fide security agreement or was not authorized or authenticated by the alleged borrower identified in the financing statement or an authorized representative of the alleged borrower; or
- Any document filed in an attempt to harass an entity, individual, or public official or obstruct a government operation or judicial proceeding, knowing or having reason to know the document contained false information.
Fraudulently filing a financing statement, lien, or document is a Class IV felony.
A nonconsensual common-law lien is not binding or enforceable at law or in equity. Any nonconsensual common-law lien that is recorded is void and unenforceable.
To give the owner of real property upon which a nonconsensual common-law lien is recorded notice of the recording of the lien, the claimant must cause the sheriff to serve a copy of the recorded lien upon the owner of the real property upon which the nonconsensual common-law lien is recorded and the sheriff must file proof of service with the register of deeds. There is no filing fee for filing the proof of service.
A judicial proceeding to enforce a nonconsensual common-law lien must be instituted by the claimant within ten days after recording the lien. Failure to serve a copy of the recorded lien upon the owner or failure to file a judicial proceeding to enforce the lien will cause the lien to lapse and be of no legal effect.
NEVADA SENATE BILL 47
“Employee” means a natural person:
- Whose manner and means of performance of work are subject to the right of control of, or are controlled by, another person; and
- Whose compensation for federal income tax purposes is reported, or required to be reported, on Form W-2 issued by the controlling person.
“Licensee” means a person who is licensed or required to be licensed as a mortgage broker. The term does not include a person issued a license as a mortgage agent who is acting properly within the scope of that license.
The definition of a “residential mortgage loan originator” does not include a loan processor, underwriter, or other natural person who performs clerical or ministerial tasks as an employee at the direction of and subject to the supervision and instruction of a person licensed or exempt from licensing as a mortgage broker or mortgage agent, unless the person who performs the clerical or ministerial tasks is an independent contractor.
In addition to the previous requirements, except as otherwise exempt by Nevada law or regulations and other applicable law, a nonprofit agency or organization must now be tax-exempt as a charitable organization to be exempt from the provisions governing mortgage brokers and mortgage agents.
A person must not act as or provide any of the services of a mortgage agent or otherwise engage in, carry on, or hold himself or herself out as engaging in or carrying on the activities of a mortgage agent unless the person:
- Has a license as a mortgage agent;
- Is :
- If the person is not a loan processor who is an independent contractor, an employee of a mortgage broker or mortgage banker; or
- An employee of or associated with a person who holds a certificate of exemption; or
- If the person is required to register with the Nationwide Mortgage Licensing System and Registry (“NMLSR”):
- Is an employee of and whose sponsorship has been entered with the NMLSR by a mortgage broker, mortgage banker, or person who holds a certificate of exemption; and
- Is registered with and provides any identifying number issued by the NMLSR.
The mortgage agent licensing requirements must be construed to enable the Commissioner of Mortgage Lending (the “Commissioner”) to reject renewing the license of a mortgage agent who does not satisfy the licensing requirements at the time of the renewal application.
Mortgage brokers and mortgage bankers must exercise reasonable supervision and control over the activities of his or her mortgage agents.
The Commissioner may adopt regulations prescribing standards for determining whether a mortgage broker or mortgage banker has exercised reasonable supervision and control over the activities of a mortgage agent.
For each violation committed by a mortgage broker, the Commissioner may impose upon the mortgage broker an administrative fine of not more than $25,000, may suspend, revoke, or place conditions upon the mortgage broker’s license, or may do both, if the mortgage broker, whether or not acting as such, has, directly or indirectly, paid any commission, fees, points, or any other compensation as payment for the services of a mortgage agent to a person other than a mortgage agent who:
- Is an employee of or associated with the mortgage broker; or
- If the mortgage agent is required to register with the NMLSR, is an employee of and whose sponsorship has been entered with the NMLSR by the mortgage broker.
For each violation committed by a mortgage agent, the Commissioner may impose upon the mortgage agent an administrative fine of not more than $25,000, may suspend, revoke, or place conditions upon the mortgage agent’s license, or may do both, if the mortgage agent, whether or not acting as such has, directly or indirectly, received any commission, fees, points, or any other compensation as payment for his or her services as a mortgage agent:
- From a person other than the mortgage broker with whom the mortgage agent is associated or by whom he or she is employed; or
- If the mortgage agent is required to be registered with the NMLSR, from a person other than the mortgage broker by whom the mortgage agent is employed and on whose behalf sponsorship was entered with the NMLSR.
The provisions governing foreclosure consultants, foreclosure purchasers, loan modification consultants and persons performing covered services for compensation do not apply to, and the terms “foreclosure consultant” and “foreclosure purchaser” do not include:
- An attorney at law licensed to practice in Nevada rendering services in the performance of his or her duties as an attorney at law, unless the attorney at law is rendering those services in the course and scope of his or her employment by or other affiliation with a person who is licensed or required to be licensed as a foreclosure consultant or a loan modification consultant or is otherwise engaging in a practice that is comprised primarily of providing a covered service to his or her clients; and
- A nonprofit agency or organization that offers credit counseling or advice to a homeowner of a residence in foreclosure or a person in default on a loan and which is a tax-exempt charitable organization.