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2017 New Hampshire Revised Statutes
Title XXXV - BANKS AND BANKING; LOAN ASSOCIATIONS; CREDIT UNIONS
Chapter 397-A - LICENSING OF NONDEPOSITORY MORTGAGE BANKERS, BROKERS, AND SERVICERS
Section 397-A:12 - Examinations.
Universal Citation: NH Rev Stat § 397-A:12 (2017)
397-A:12 Examinations. –
I. The banking department may examine the business affairs of any licensee or any other person, whether licensed or not, as it deems necessary to determine compliance with this chapter and the rules adopted pursuant to it and with the Consumer Credit Protection Act, (15 U.S.C. 1601 et seq.) as amended. In determining compliance, the banking department may examine the books, accounts, records, files, and other documents or matters of any licensee or person. The banking department shall have the power to subpoena witnesses and administer oaths in any adjudicative proceedings, and to compel, by subpoena duces tecum, the production of all books, records, files, and other documents and materials relevant to its investigation.
II. For the purpose of discovering violations of this chapter, the banking department may examine, during business hours, the records of any licensee and of any person by whom any such loan is made, whether such person shall be licensed to act, or claim to act, as principal, agent, or other representative, or under, or without the authority of this chapter; and for that purpose, the banking department shall have access to the books, papers, records, files, and vaults of all such persons. The banking department shall also have authority to examine, under oath, all persons whose testimony it may require relative to such loans or business.
III. The affairs and records of every licensee shall be subject at any time to such periodic, special, regular, or other examination by the banking department with or without notice to the licensee. All books, papers, files, related material, and records of assets of the licensee shall be subject to the department's examination and made available immediately upon request.
IV. When a licensee is requested to provide files or business records to the office of the department, such material must be received no later than 21 calendar days from receipt of request. When the department requests a loan list or other similar summary document from a licensee from which to select particular files for review, the licensee shall ensure that the list is received by the department within 7 calendar days, and provide the files selected by the department to the department within 14 calendar days to ensure compliance with the 21-day requirement. Failure to provide files and documents within the time established by this paragraph shall subject a licensee or person to a fine of $50 per day for each day after 21 days the files and documents are not produced. Failure to provide files and documents within 60 days after being requested to do so by the department shall be sufficient cause for license revocation, suspension, or denial.
V. Any agent of the banking department may make a thorough examination into the business affairs of each licensee and shall report any violations of law, rule, or standard business practice to the banking department.
VI. The expense of such examination shall be chargeable to and paid by the licensee. The payment shall be calculated by the same method as for payments by institutions for cost of examinations under RSA 383:11, except when the principal office of the licensee or person is located outside of this state and the department has determined that the examination must be conducted at that out-of-state location, the actual cost of travel, lodging, meals, and other expenses of examination personnel making the examination, shall be chargeable to and paid by such licensee or person in addition to the per diem charge for examination personnel set forth in RSA 383:11.
VI-a. The commissioner may, in his or her discretion, accept all or a part of a report of examination of a mortgage banker, mortgage broker, or mortgage servicer, certified to by the regulatory supervisory official of another state. To avoid unnecessary duplication of examinations and investigations, the commissioner, insofar as he or she deems it practicable in administering this section, may cooperate and share information with the regulators of this state and other states, the Federal Trade Commission, the Department of Housing and Urban Development, other federal regulators, or their successors in conducting examinations and investigations.
VII. In any investigation to determine whether any person has violated or is about to violate this chapter or any rule or order under this chapter, upon the commissioner's finding that the person violated this chapter or a rule or order under this chapter, or the person charged with the violation being found in default, the commissioner shall be entitled to recover the cost of the investigation, in addition to any other penalty provided for under this chapter.
VIII. Every person being examined, and all of the officers, directors, employees, agents, and representatives of such person shall make freely available to the commissioner or his or her examiners, the accounts, records, documents, files, information, assets, and matters in their possession or control relating to the subject of the examination and shall facilitate the examination.
IX. Upon receipt of a written report of examination, the licensee shall have 30 days or such additional reasonable period as the commissioner for good cause may allow, within which to review the report and recommend any changes. If any deficiencies are identified in the report of examination, the licensee shall, within 30 days or such additional reasonable period as the commissioner for good cause may allow, set forth in writing to the department, a detailed plan of corrective action the licensee will pursue to correct any reported deficiencies outlined in the report. The examination will remain open until such time as the department determines that the licensee has appropriately responded to all identified deficiencies.
X. If so requested by the person examined, within the period allowed in paragraph IX, or if deemed advisable by the commissioner without such request, the commissioner shall hold a closed hearing relative to the report and shall not file the report in the department until after such closed hearing and issuance of his or her order thereon. If no such closed hearing has been requested or held, the examination report, with such modifications, if any, as the commissioner deems proper, shall be accepted by the commissioner and filed upon expiration of the review period provided for in paragraph IX. The report shall be accepted and filed within 6 months after the final hearing thereon.
XI. All reports pursuant to this section shall be absolutely privileged and although filed in the department as provided in paragraph X shall nevertheless not be for public inspection. The comments and recommendations of the examiner shall also be deemed confidential information and shall not be available for public inspection.
XII. Each licensee or person subject to this chapter shall make or compile reports or prepare other information as directed by the commissioner in order to carry out the purposes of the chapter including but not limited to:
(a) Accounting compilations;
(b) Information lists and data concerning loan transactions in a format prescribed by the commissioner; and
(c) Such other information deemed necessary to carry out the purposes of the chapter.
XIII. In making any examination or investigation authorized by this chapter, the commissioner may control access to any documents and records of the licensee or person under examination or investigation. The commissioner may take possession of the documents and records or place a person in exclusive charge of the documents and records in the place where they are usually kept. During the period of control, no person shall remove or attempt to remove any of the documents and records except pursuant to a court order or with the consent of the commissioner. Unless the commissioner has reasonable grounds to believe the documents or records of the licensee have been, or are at risk of, being altered or destroyed for purposes of concealing a violation of this chapter, the licensee or owner of the documents and records shall have access to the documents or records as necessary to conduct its ordinary business affairs.
XIV. The authority of this section shall remain in effect, whether a licensee or person subject to this chapter acts or claims to act under any licensing or registration law of this state, or claims to act without such authority.
XV. The authority of this section shall extend to any person who has custody of or control over documents within the jurisdiction of the commissioner including but not limited to title companies and other settlement providers who shall provide loan documents to the commissioner upon request.
XVI. No licensee or person subject to investigation or examination under this section may knowingly and with intent to deceive withhold, abstract, remove, mutilate, destroy, or secrete any books, records, computer records, or other information. Such actions shall be fraud under the chapter.
I. The banking department may examine the business affairs of any licensee or any other person, whether licensed or not, as it deems necessary to determine compliance with this chapter and the rules adopted pursuant to it and with the Consumer Credit Protection Act, (15 U.S.C. 1601 et seq.) as amended. In determining compliance, the banking department may examine the books, accounts, records, files, and other documents or matters of any licensee or person. The banking department shall have the power to subpoena witnesses and administer oaths in any adjudicative proceedings, and to compel, by subpoena duces tecum, the production of all books, records, files, and other documents and materials relevant to its investigation.
II. For the purpose of discovering violations of this chapter, the banking department may examine, during business hours, the records of any licensee and of any person by whom any such loan is made, whether such person shall be licensed to act, or claim to act, as principal, agent, or other representative, or under, or without the authority of this chapter; and for that purpose, the banking department shall have access to the books, papers, records, files, and vaults of all such persons. The banking department shall also have authority to examine, under oath, all persons whose testimony it may require relative to such loans or business.
III. The affairs and records of every licensee shall be subject at any time to such periodic, special, regular, or other examination by the banking department with or without notice to the licensee. All books, papers, files, related material, and records of assets of the licensee shall be subject to the department's examination and made available immediately upon request.
IV. When a licensee is requested to provide files or business records to the office of the department, such material must be received no later than 21 calendar days from receipt of request. When the department requests a loan list or other similar summary document from a licensee from which to select particular files for review, the licensee shall ensure that the list is received by the department within 7 calendar days, and provide the files selected by the department to the department within 14 calendar days to ensure compliance with the 21-day requirement. Failure to provide files and documents within the time established by this paragraph shall subject a licensee or person to a fine of $50 per day for each day after 21 days the files and documents are not produced. Failure to provide files and documents within 60 days after being requested to do so by the department shall be sufficient cause for license revocation, suspension, or denial.
V. Any agent of the banking department may make a thorough examination into the business affairs of each licensee and shall report any violations of law, rule, or standard business practice to the banking department.
VI. The expense of such examination shall be chargeable to and paid by the licensee. The payment shall be calculated by the same method as for payments by institutions for cost of examinations under RSA 383:11, except when the principal office of the licensee or person is located outside of this state and the department has determined that the examination must be conducted at that out-of-state location, the actual cost of travel, lodging, meals, and other expenses of examination personnel making the examination, shall be chargeable to and paid by such licensee or person in addition to the per diem charge for examination personnel set forth in RSA 383:11.
VI-a. The commissioner may, in his or her discretion, accept all or a part of a report of examination of a mortgage banker, mortgage broker, or mortgage servicer, certified to by the regulatory supervisory official of another state. To avoid unnecessary duplication of examinations and investigations, the commissioner, insofar as he or she deems it practicable in administering this section, may cooperate and share information with the regulators of this state and other states, the Federal Trade Commission, the Department of Housing and Urban Development, other federal regulators, or their successors in conducting examinations and investigations.
VII. In any investigation to determine whether any person has violated or is about to violate this chapter or any rule or order under this chapter, upon the commissioner's finding that the person violated this chapter or a rule or order under this chapter, or the person charged with the violation being found in default, the commissioner shall be entitled to recover the cost of the investigation, in addition to any other penalty provided for under this chapter.
VIII. Every person being examined, and all of the officers, directors, employees, agents, and representatives of such person shall make freely available to the commissioner or his or her examiners, the accounts, records, documents, files, information, assets, and matters in their possession or control relating to the subject of the examination and shall facilitate the examination.
IX. Upon receipt of a written report of examination, the licensee shall have 30 days or such additional reasonable period as the commissioner for good cause may allow, within which to review the report and recommend any changes. If any deficiencies are identified in the report of examination, the licensee shall, within 30 days or such additional reasonable period as the commissioner for good cause may allow, set forth in writing to the department, a detailed plan of corrective action the licensee will pursue to correct any reported deficiencies outlined in the report. The examination will remain open until such time as the department determines that the licensee has appropriately responded to all identified deficiencies.
X. If so requested by the person examined, within the period allowed in paragraph IX, or if deemed advisable by the commissioner without such request, the commissioner shall hold a closed hearing relative to the report and shall not file the report in the department until after such closed hearing and issuance of his or her order thereon. If no such closed hearing has been requested or held, the examination report, with such modifications, if any, as the commissioner deems proper, shall be accepted by the commissioner and filed upon expiration of the review period provided for in paragraph IX. The report shall be accepted and filed within 6 months after the final hearing thereon.
XI. All reports pursuant to this section shall be absolutely privileged and although filed in the department as provided in paragraph X shall nevertheless not be for public inspection. The comments and recommendations of the examiner shall also be deemed confidential information and shall not be available for public inspection.
XII. Each licensee or person subject to this chapter shall make or compile reports or prepare other information as directed by the commissioner in order to carry out the purposes of the chapter including but not limited to:
(a) Accounting compilations;
(b) Information lists and data concerning loan transactions in a format prescribed by the commissioner; and
(c) Such other information deemed necessary to carry out the purposes of the chapter.
XIII. In making any examination or investigation authorized by this chapter, the commissioner may control access to any documents and records of the licensee or person under examination or investigation. The commissioner may take possession of the documents and records or place a person in exclusive charge of the documents and records in the place where they are usually kept. During the period of control, no person shall remove or attempt to remove any of the documents and records except pursuant to a court order or with the consent of the commissioner. Unless the commissioner has reasonable grounds to believe the documents or records of the licensee have been, or are at risk of, being altered or destroyed for purposes of concealing a violation of this chapter, the licensee or owner of the documents and records shall have access to the documents or records as necessary to conduct its ordinary business affairs.
XIV. The authority of this section shall remain in effect, whether a licensee or person subject to this chapter acts or claims to act under any licensing or registration law of this state, or claims to act without such authority.
XV. The authority of this section shall extend to any person who has custody of or control over documents within the jurisdiction of the commissioner including but not limited to title companies and other settlement providers who shall provide loan documents to the commissioner upon request.
XVI. No licensee or person subject to investigation or examination under this section may knowingly and with intent to deceive withhold, abstract, remove, mutilate, destroy, or secrete any books, records, computer records, or other information. Such actions shall be fraud under the chapter.
Source. 2016, 289:1, eff. Aug. 20, 2016. 2017, 103:4, eff. Aug. 7, 2017.
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