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Sub. H. B. No. 3 As Pending in the House Housing and Urban Revitalization CommitteeAs Pending in the House Housing and Urban Revitalization Committee
128th General Assembly | Regular Session | 2009-2010 |
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Representatives Foley, Driehaus
Cosponsors:
Representatives Heard, Skindell, Stewart, Newcomb, Yuko, Hagan, Harris, Williams, B., Williams, S., Yates, Luckie, Patten, Slesnick, Ujvagi, Letson, Harwood, Boyd, Weddington, Winburn, Pryor, Murray, Mallory, Domenick, DeBose
A BILL
To amend sections 109.572 and 1321.52 and
to enact
sections 1323.01 to 1323.11, 1323.20 to
1323.36,
1323.361, 1323.37, 1323.99, 2303.33,
2308.01,
2308.02, 2308.03, and
2308.04
of the
Revised
Code to declare a six-month
moratorium on
mortgage foreclosures, to provide
courts
authority to modify mortgage
payments on
foreclosures of subprime mortgages, to require
registration of
residential mortgage servicers,
to
regulate
residential mortgage servicers, to
adopt
procedures and requirements related to
residential
foreclosure actions, to adopt civil
and criminal
penalties for violations of the
bill's provisions,
to terminate provisions of
this act six months
after its effective date by
repealing section
2308.03 of the Revised Code on
that date, to
terminate certain provisions of
this act three
years
after its effective date by
repealing
section
2308.04 of the Revised Code on
that date,
and to
declare an emergency.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 109.572 and 1321.52 be
amended and
sections 1323.01, 1323.02, 1323.04, 1323.05,
1323.06,
1323.07,
1323.08, 1323.09, 1323.10, 1323.11, 1323.20,
1323.21,
1323.22,
1323.23, 1323.24, 1323.25, 1323.26, 1323.27,
1323.28,
1323.29,
1323.30, 1323.31, 1323.32, 1323.33, 1323.34,
1323.35,
1323.36,
1323.361, 1323.37, 1323.99, 2303.33, 2308.01, 2308.02,
2308.03,
and
2308.04 of the Revised Code be enacted to read as
follows:
Sec. 109.572. (A)(1) Upon receipt of a request pursuant to
section 121.08, 3301.32, 3301.541, or 3319.39
of the Revised
Code, a completed form prescribed pursuant to
division (C)(1) of
this section, and a set of fingerprint
impressions obtained in
the manner described in division (C)(2) of
this section, the
superintendent of the bureau of criminal
identification and
investigation shall conduct a criminal records
check in the
manner described in division (B) of this section to
determine
whether any information exists that indicates that the
person who
is the subject of the request previously has been
convicted of or
pleaded guilty to any of the following:
(a) A violation of section 2903.01, 2903.02, 2903.03,
2903.04, 2903.11, 2903.12, 2903.13, 2903.16, 2903.21, 2903.34,
2905.01, 2905.02, 2905.05, 2907.02, 2907.03, 2907.04, 2907.05,
2907.06, 2907.07, 2907.08, 2907.09, 2907.21, 2907.22, 2907.23,
2907.25, 2907.31, 2907.32, 2907.321, 2907.322, 2907.323, 2911.01,
2911.02, 2911.11, 2911.12, 2919.12, 2919.22, 2919.24, 2919.25,
2923.12, 2923.13, 2923.161, 2925.02, 2925.03, 2925.04, 2925.05,
2925.06, or 3716.11 of the Revised Code, felonious sexual
penetration in violation of former section 2907.12 of the Revised
Code, a violation of section 2905.04 of the Revised Code as it
existed prior to July 1, 1996, a violation of section 2919.23 of
the Revised Code that would have been a violation of section
2905.04 of the Revised Code as it existed prior to July 1, 1996,
had the violation been committed prior to that date, or a
violation of section 2925.11 of the Revised Code that is not a
minor drug possession offense;
(b) A violation of an existing or former law of this state,
any other state, or the United States that is substantially
equivalent to any of the offenses listed in division (A)(1)(a) of
this section.
(2) On receipt of a request pursuant to section 5123.081 of
the Revised Code with respect to an applicant for employment in
any position with the department of mental retardation and
developmental disabilities, pursuant to section 5126.28 of the
Revised Code with respect to an applicant for employment in any
position with a county board of mental retardation and
developmental disabilities, or pursuant to section 5126.281 of the
Revised Code with respect to an applicant for employment in a
direct services position with an entity contracting with a county
board for employment, a completed form prescribed pursuant to
division (C)(1) of this section, and a set of fingerprint
impressions obtained in the manner described in division (C)(2) of
this section, the superintendent of the bureau of criminal
identification and investigation shall conduct a criminal records
check. The superintendent shall conduct the criminal records check
in the manner described in division (B) of this section to
determine whether any information exists that indicates that the
person who is the subject of the request has been convicted of or
pleaded guilty to any of the following:
(a) A violation of section 2903.01, 2903.02, 2903.03,
2903.04, 2903.11, 2903.12, 2903.13, 2903.16, 2903.21, 2903.34,
2903.341, 2905.01, 2905.02, 2905.04, 2905.05, 2907.02, 2907.03,
2907.04, 2907.05, 2907.06, 2907.07, 2907.08, 2907.09, 2907.12,
2907.21, 2907.22, 2907.23, 2907.25, 2907.31, 2907.32, 2907.321,
2907.322, 2907.323, 2911.01, 2911.02, 2911.11, 2911.12, 2919.12,
2919.22, 2919.24, 2919.25, 2923.12, 2923.13, 2923.161, 2925.02,
2925.03, or 3716.11 of the Revised Code;
(b) An existing or former municipal ordinance or law of this
state, any other state, or the United States that is substantially
equivalent to any of the offenses listed in division (A)(2)(a) of
this section.
(3) On receipt of a request pursuant to section 173.27,
173.394, 3712.09, 3721.121, or 3722.151 of the Revised Code, a
completed form prescribed pursuant to division (C)(1) of this
section, and a set of fingerprint impressions obtained in the
manner described in division (C)(2) of this section, the
superintendent of the bureau of criminal identification and
investigation shall conduct a criminal records check with respect
to any person who has applied for employment in a position for
which a criminal records check is required by those sections. The
superintendent shall conduct the criminal records check in the
manner described in division (B) of this section to determine
whether any information exists that indicates that the person who
is the subject of the request previously has been convicted of or
pleaded guilty to any of the following:
(a) A violation of section 2903.01, 2903.02, 2903.03,
2903.04, 2903.11, 2903.12, 2903.13, 2903.16, 2903.21, 2903.34,
2905.01, 2905.02, 2905.11, 2905.12, 2907.02, 2907.03, 2907.05,
2907.06, 2907.07, 2907.08, 2907.09, 2907.12, 2907.25, 2907.31,
2907.32, 2907.321, 2907.322, 2907.323, 2911.01, 2911.02, 2911.11,
2911.12, 2911.13, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21,
2913.31, 2913.40, 2913.43, 2913.47, 2913.51, 2919.25, 2921.36,
2923.12, 2923.13, 2923.161, 2925.02, 2925.03, 2925.11, 2925.13,
2925.22, 2925.23, or 3716.11 of the Revised Code;
(b) An existing or former law of this state, any other state,
or the United States that is substantially equivalent to any of
the offenses listed in division (A)(3)(a) of this section.
(4) On receipt of a request pursuant to section 3701.881 of
the Revised Code with respect to an applicant for employment with
a home health agency as a person responsible for the care,
custody, or control of a child, a completed form prescribed
pursuant to division (C)(1) of this section, and a set of
fingerprint impressions obtained in the manner described in
division (C)(2) of this section, the superintendent of the bureau
of criminal identification and investigation shall conduct a
criminal records check. The superintendent shall conduct the
criminal records check in the manner described in division (B) of
this section to determine whether any information exists that
indicates that the person who is the subject of the request
previously has been convicted of or pleaded guilty to any of the
following:
(a) A violation of section 2903.01, 2903.02, 2903.03,
2903.04, 2903.11, 2903.12, 2903.13, 2903.16, 2903.21, 2903.34,
2905.01, 2905.02, 2905.04, 2905.05, 2907.02, 2907.03, 2907.04,
2907.05, 2907.06, 2907.07, 2907.08, 2907.09, 2907.12, 2907.21,
2907.22, 2907.23, 2907.25, 2907.31, 2907.32, 2907.321, 2907.322,
2907.323, 2911.01, 2911.02, 2911.11, 2911.12, 2919.12, 2919.22,
2919.24, 2919.25, 2923.12, 2923.13, 2923.161, 2925.02, 2925.03,
2925.04, 2925.05, 2925.06, or 3716.11 of the Revised Code or a
violation of section 2925.11 of the Revised Code that is not a
minor drug possession offense;
(b) An existing or former law of this state, any other state,
or the United States that is substantially equivalent to any of
the offenses listed in division (A)(4)(a) of this section.
(5) On receipt of a request pursuant to section 5111.032,
5111.033, or 5111.034 of the Revised Code, a completed form
prescribed pursuant
to division (C)(1) of this section, and a set
of fingerprint
impressions obtained in the manner described in
division (C)(2) of
this section, the superintendent of the bureau
of criminal
identification and investigation shall conduct a
criminal records
check. The superintendent shall conduct the
criminal records check
in the manner described in division (B) of
this
section to
determine whether any information
exists that
indicates that the
person who is the subject of the request
previously has been
convicted of, has pleaded guilty to, or has
been found eligible
for intervention in lieu of conviction for
any of
the following:
(a) A violation of section 2903.01, 2903.02, 2903.03,
2903.04,
2903.041, 2903.11, 2903.12, 2903.13, 2903.16,
2903.21,
2903.34, 2905.01, 2905.02, 2905.05, 2905.11, 2905.12, 2907.02,
2907.03, 2907.04, 2907.05, 2907.06, 2907.07, 2907.08, 2907.09,
2907.21, 2907.22, 2907.23, 2907.24, 2907.25, 2907.31, 2907.32,
2907.321, 2907.322, 2907.323, 2911.01, 2911.02, 2911.11, 2911.12,
2911.13, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21, 2913.31,
2913.40, 2913.43, 2913.47, 2913.48, 2913.49, 2913.51, 2917.11,
2919.12, 2919.22, 2919.24, 2919.25, 2921.13, 2921.36, 2923.02,
2923.12, 2923.13, 2923.161, 2923.32, 2925.02, 2925.03, 2925.04,
2925.05, 2925.06, 2925.11, 2925.13, 2925.14, 2925.22, 2925.23, or
3716.11 of the Revised Code, felonious sexual penetration in
violation of former section 2907.12 of the Revised Code, a
violation of section 2905.04 of the Revised Code as it existed
prior to July 1, 1996, a violation of section 2919.23 of the
Revised Code that would have been a violation of section 2905.04
of the Revised Code as it existed prior to July 1, 1996, had the
violation been committed prior to that date;
(b) An existing or former law of this state, any other state,
or the United States that is substantially equivalent to any of
the offenses listed in division (A)(5)(a) of this section.
(6) On receipt of a request pursuant to section 3701.881 of
the Revised Code with respect to an applicant for employment with
a home health agency in a position that involves providing direct
care to an older adult, a completed form prescribed pursuant to
division (C)(1) of this section, and a set of fingerprint
impressions obtained in the manner described in division (C)(2) of
this section, the superintendent of the bureau of criminal
identification and investigation shall conduct a criminal records
check. The superintendent shall conduct the criminal records check
in the manner described in division (B) of this section to
determine whether any information exists that indicates that the
person who is the subject of the request previously has been
convicted of or pleaded guilty to any of the following:
(a) A violation of section 2903.01, 2903.02, 2903.03,
2903.04, 2903.11, 2903.12, 2903.13, 2903.16, 2903.21, 2903.34,
2905.01, 2905.02, 2905.11, 2905.12, 2907.02, 2907.03, 2907.05,
2907.06, 2907.07, 2907.08, 2907.09, 2907.12, 2907.25, 2907.31,
2907.32, 2907.321, 2907.322, 2907.323, 2911.01, 2911.02, 2911.11,
2911.12, 2911.13, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21,
2913.31, 2913.40, 2913.43, 2913.47, 2913.51, 2919.25, 2921.36,
2923.12, 2923.13, 2923.161, 2925.02, 2925.03, 2925.11, 2925.13,
2925.22, 2925.23, or 3716.11 of the Revised Code;
(b) An existing or former law of this state, any other state,
or the United States that is substantially equivalent to any of
the offenses listed in division (A)(6)(a) of this section.
(7) When conducting a criminal records check upon a request
pursuant to section 3319.39 of the Revised Code for an applicant
who is a teacher, in addition to the determination made under
division (A)(1) of this section, the superintendent shall
determine whether any information exists that indicates that the
person who is the subject of the request previously has been
convicted of or pleaded guilty to any offense specified in section
3319.31 of the Revised Code.
(8) On receipt of a request pursuant to section 2151.86 of
the Revised
Code, a completed form prescribed pursuant to
division (C)(1) of
this section, and a set of fingerprint
impressions obtained in the
manner described in division (C)(2)
of this section, the
superintendent of the bureau of criminal
identification and
investigation shall conduct a criminal records
check in the manner
described in division (B) of this section to
determine whether any
information exists that indicates that the
person who is the
subject of the request previously has been
convicted of or pleaded
guilty to any of the following:
(a) A violation of section 959.13, 2903.01, 2903.02, 2903.03,
2903.04, 2903.11, 2903.12, 2903.13, 2903.15, 2903.16, 2903.21,
2903.211, 2903.22, 2903.34,
2905.01, 2905.02, 2905.05, 2907.02,
2907.03, 2907.04, 2907.05,
2907.06, 2907.07, 2907.08, 2907.09,
2907.21, 2907.22, 2907.23,
2907.25, 2907.31, 2907.32, 2907.321,
2907.322, 2907.323, 2909.02,
2909.03, 2909.22, 2909.23, 2909.24,
2911.01, 2911.02, 2911.11, 2911.12, 2913.49, 2917.01, 2917.02,
2919.12, 2919.22,
2919.24, 2919.25, 2923.12, 2923.13, 2923.161,
2925.02, 2925.03,
2925.04, 2925.05, 2925.06, 2927.12, or 3716.11
of the Revised Code, a
violation of section 2905.04 of the
Revised Code as it existed
prior to July 1, 1996, a violation of
section 2919.23 of the
Revised Code that would have been a
violation of section 2905.04
of the Revised Code as it existed
prior to July 1, 1996, had the
violation been committed prior to
that date, a violation of
section 2925.11 of the Revised Code
that is not a minor drug
possession offense, two or more OVI or
OVUAC violations
committed within the three years immediately
preceding the
submission of the application or petition that is
the basis of the
request, or felonious sexual penetration in
violation
of former section 2907.12 of the Revised Code;
(b) A violation of an existing or former law of this state,
any other state, or the United States that is substantially
equivalent to any of the offenses listed in division (A)(8)(a) of
this section.
(9) Upon receipt
of a request
pursuant to section 5104.012
or 5104.013 of the
Revised Code, a completed
form prescribed
pursuant to division
(C)(1) of this section, and a
set of
fingerprint impressions
obtained in the manner described in
division (C)(2) of this
section, the superintendent of the bureau
of criminal
identification and investigation shall conduct a
criminal records
check in the manner described in division (B) of
this section to
determine whether any information exists that
indicates that the
person who is the subject of the request has
been convicted of or
pleaded guilty
to any of the following:
(a) A violation of section 2903.01, 2903.02, 2903.03,
2903.04, 2903.11, 2903.12, 2903.13, 2903.16, 2903.21, 2903.22,
2903.34, 2905.01, 2905.02, 2905.05, 2907.02, 2907.03, 2907.04,
2907.05, 2907.06, 2907.07, 2907.08, 2907.09, 2907.21, 2907.22,
2907.23, 2907.25, 2907.31, 2907.32, 2907.321, 2907.322, 2907.323,
2911.01, 2911.02, 2911.11, 2911.12, 2913.02, 2913.03, 2913.04,
2913.041, 2913.05, 2913.06, 2913.11, 2913.21, 2913.31, 2913.32,
2913.33, 2913.34, 2913.40, 2913.41, 2913.42, 2913.43, 2913.44,
2913.441, 2913.45, 2913.46, 2913.47, 2913.48, 2913.49, 2919.12,
2919.22, 2919.24, 2919.25, 2921.11,
2921.13, 2923.01, 2923.12,
2923.13, 2923.161, 2925.02, 2925.03, 2925.04, 2925.05, 2925.06, or
3716.11 of the Revised Code, felonious sexual penetration in
violation of former section 2907.12 of the Revised Code, a
violation of section 2905.04 of the Revised Code as it existed
prior to July 1, 1996, a violation of section 2919.23 of the
Revised Code that would have been a violation of section 2905.04
of the Revised Code as it existed prior to July 1, 1996, had the
violation been committed prior to that date, a violation of
section 2925.11 of the Revised Code that is not a minor drug
possession offense, a violation of section
2923.02 or 2923.03 of
the Revised Code that relates to a crime
specified in this
division,
or a second
violation of section 4511.19 of the
Revised Code
within five
years of the date of application for
licensure or
certification.
(b) A violation of an existing or former law of this state,
any other state, or the United States that is substantially
equivalent to any of the offenses or violations described in
division (A)(9)(a) of this section.
(10) Upon receipt of a request pursuant to section 5153.111
of the Revised Code, a completed form prescribed pursuant to
division (C)(1) of this section, and a set of fingerprint
impressions obtained in the manner described in division (C)(2) of
this section, the superintendent of the bureau of criminal
identification and investigation shall conduct a criminal records
check in the manner described in division (B) of this section to
determine whether any information exists that indicates that the
person who is the subject of the request previously has been
convicted of or pleaded guilty to any of the following:
(a) A violation of section 2903.01, 2903.02, 2903.03,
2903.04, 2903.11, 2903.12, 2903.13, 2903.16, 2903.21, 2903.34,
2905.01, 2905.02, 2905.05, 2907.02, 2907.03, 2907.04, 2907.05,
2907.06, 2907.07, 2907.08, 2907.09, 2907.21, 2907.22, 2907.23,
2907.25, 2907.31, 2907.32, 2907.321, 2907.322, 2907.323, 2909.02,
2909.03, 2911.01, 2911.02, 2911.11, 2911.12, 2919.12, 2919.22,
2919.24, 2919.25, 2923.12, 2923.13, 2923.161, 2925.02, 2925.03,
2925.04, 2925.05, 2925.06, or 3716.11 of the Revised Code,
felonious sexual penetration in violation of former section
2907.12 of the Revised Code, a violation of section 2905.04 of the
Revised Code as it existed prior to July 1, 1996, a violation of
section 2919.23 of the Revised Code that would have been a
violation of section 2905.04 of the Revised Code as it existed
prior to July 1, 1996, had the violation been committed prior to
that date, or a violation of section 2925.11 of the Revised Code
that is not a minor drug possession offense;
(b) A violation of an existing or former law of this state,
any other state, or the United States that is substantially
equivalent to any of the offenses listed in division (A)(10)(a) of
this section.
(11) On receipt of a request for a criminal records check
from an individual pursuant to section 4749.03 or 4749.06 of the
Revised Code, accompanied by a completed copy of the form
prescribed in division (C)(1) of this section and a set of
fingerprint impressions obtained in a manner described in division
(C)(2) of this section, the superintendent of the bureau of
criminal identification and investigation shall conduct a criminal
records check in the manner described in division (B) of this
section to determine whether any information exists indicating
that the person who is the subject of the request has been
convicted of or pleaded guilty to a felony in this state or in any
other state. If the individual indicates that a firearm will be
carried in the course of business, the superintendent shall
require information from the federal bureau of investigation as
described in division (B)(2) of this section. The superintendent
shall report the findings of the criminal records check and any
information the federal bureau of investigation provides to the
director of public safety.
(12) On receipt of a request pursuant to section 1321.37,
1322.03,
1322.031, 1323.23, or 4763.05 of the Revised Code, a
completed
form
prescribed pursuant to division (C)(1) of this
section, and
a set
of fingerprint impressions obtained in the
manner described
in
division (C)(2) of this section, the
superintendent of the
bureau
of criminal identification and
investigation shall conduct
a
criminal records check with
respect to any person who has
applied
for a license, permit, or
certification from the
department of
commerce or a division in
the department. The
superintendent shall
conduct the criminal
records check in the
manner described in
division (B) of this
section to determine
whether any information
exists that
indicates that the person who
is the subject of the
request
previously has been convicted of or
pleaded guilty to any
of the
following: a violation of section
2913.02, 2913.11,
2913.31,
2913.51, or 2925.03 of the Revised
Code; any other
criminal
offense involving theft, receiving
stolen property,
embezzlement, forgery, fraud, passing bad
checks, money
laundering, or drug trafficking, or any criminal
offense
involving
money or securities, as set forth in Chapters
2909.,
2911., 2913.,
2915., 2921., 2923., and 2925. of the
Revised
Code; or any
existing or former law of this state, any
other
state, or the
United States that is substantially
equivalent to
those offenses.
(13) On receipt of a request for a criminal records check
from the treasurer of state under section 113.041 of the Revised
Code or
from an individual under section 4701.08,
4715.101,
4717.061, 4725.121, 4725.501, 4729.071, 4730.101,
4730.14,
4730.28, 4731.081, 4731.15, 4731.171, 4731.222,
4731.281,
4731.296, 4731.531, 4732.091, 4734.202, 4740.061,
4741.10,
4755.70, 4757.101, 4759.061, 4760.032, 4760.06,
4761.051,
4762.031, 4762.06, or 4779.091 of the Revised Code,
accompanied
by
a completed form prescribed under division (C)(1)
of this
section
and a set of fingerprint impressions obtained in
the
manner
described in division (C)(2) of this section, the
superintendent
of the bureau of criminal identification and
investigation shall
conduct a criminal records check in the
manner described in
division (B) of this section to determine
whether any information
exists that indicates that the person who
is the subject of the
request has been convicted of or pleaded
guilty to any criminal
offense in this state or any other state.
The superintendent shall
send the results of a check requested
under section 113.041 of the Revised Code to the treasurer of
state and shall send the results of a check requested under any of
the other listed sections to the licensing board specified by the
individual in the request.
(14) On receipt of a request pursuant to section 1121.23,
1155.03, 1163.05, 1315.141, 1733.47, or 1761.26 of the Revised
Code, a completed form prescribed pursuant to division (C)(1) of
this section, and a set of fingerprint impressions obtained in the
manner described in division (C)(2) of this section, the
superintendent of the bureau of criminal identification and
investigation shall conduct a criminal records check in the manner
described in division (B) of this section to determine whether any
information exists that indicates that the person who is the
subject of the request previously has been convicted of or pleaded
guilty to any criminal offense under any existing or former law of
this state, any other state, or the United States.
(15) Not later than thirty days after the date the
superintendent receives a request of a type described in
division
(A)(1), (2), (3), (4), (5), (6), (7), (8), (9), (10),
(11),
(12), or (14) of this section, the completed form, and
the
fingerprint
impressions, the superintendent shall send the
person,
board, or
entity that made the request any information,
other than
information the dissemination of which is prohibited
by federal
law, the superintendent determines exists with respect
to the
person who is the subject of the request that indicates
that the
person previously has been convicted of or pleaded
guilty to any
offense listed or described in division (A)(1),
(2), (3), (4),
(5), (6), (7), (8), (9), (10), (11), (12), or
(14) of this section, as
appropriate. The superintendent shall
send the person, board, or
entity that made the request a copy of
the list of offenses
specified in division (A)(1), (2), (3), (4),
(5), (6), (7), (8),
(9), (10), (11), (12), or (14) of this
section, as appropriate. If the
request was made under section
3701.881 of the Revised Code with
regard to an applicant who may
be both responsible for the care,
custody, or control of a child
and involved in providing direct
care to an older adult, the
superintendent shall provide a list of
the offenses specified in
divisions (A)(4) and (6) of this
section.
Not later than thirty days after the superintendent receives
a request for a criminal records check pursuant to section 113.041
of the Revised Code, the completed form, and the fingerprint
impressions, the superintendent shall send the treasurer of state
any information, other than information the dissemination of which
is prohibited by federal law, the superintendent determines exist
with respect to the person who is the subject of the request that
indicates that the person previously has been convicted of or
pleaded guilty to any criminal offense in this state or any other
state.
(B) The superintendent shall conduct any criminal records
check requested under section 113.041, 121.08, 173.27, 173.394,
1121.23, 1155.03, 1163.05, 1315.141,
1322.03,
1322.031, 1323.23,
1733.47,
1761.26, 2151.86, 3301.32, 3301.541, 3319.39, 3701.881,
3712.09,
3721.121, 3722.151, 4701.08, 4715.101,
4717.061,
4725.121,
4725.501, 4729.071, 4730.101, 4730.14,
4730.28,
4731.081,
4731.15, 4731.171, 4731.222, 4731.281,
4731.296,
4731.531,
4732.091, 4734.202, 4740.061, 4741.10,
4749.03,
4749.06,
4755.70, 4757.101, 4759.061, 4760.032, 4760.06,
4761.051,
4762.031, 4762.06, 4763.05, 4779.091, 5104.012,
5104.013,
5111.032, 5111.033, 5111.034, 5123.081, 5126.28,
5126.281, or
5153.111 of the Revised Code as follows:
(1) The superintendent shall review or cause to be reviewed
any relevant information gathered and compiled by the bureau under
division (A) of section 109.57 of the Revised Code that relates to
the person who is the subject of the request, including, if the
criminal records check was requested under section 113.041,
121.08, 173.27, 173.394, 1121.23, 1155.03, 1163.05, 1315.141,
1321.37, 1322.03, 1322.031, 1323.23, 1733.47, 1761.26, 2151.86,
3301.32,
3301.541,
3319.39, 3701.881, 3712.09, 3721.121,
3722.151,
4749.03, 4749.06,
4763.05, 5104.012, 5104.013,
5111.032,
5111.033, 5111.034,
5123.081, 5126.28, 5126.281, or
5153.111 of
the Revised Code, any
relevant information contained
in records
that have been sealed
under section 2953.32 of the
Revised Code;
(2) If the request received by the superintendent asks for
information from the federal bureau of investigation, the
superintendent shall request from the federal bureau of
investigation any information it has with respect to the person
who is the subject of the request, including fingerprint-based
checks of national crime information databases as described in 42
U.S.C. 671 if the request is made pursuant to section 2151.86,
5104.012, or 5104.013 of the Revised Code or if any other Revised
Code section requires fingerprint-based checks of that nature, and
shall review or cause to be
reviewed any information the
superintendent receives from that
bureau.
(3) The superintendent or the superintendent's designee may
request criminal history records from other states or the federal
government pursuant to the national crime prevention and privacy
compact set forth in section 109.571 of the Revised Code.
(C)(1) The superintendent shall prescribe a form to obtain
the information necessary to conduct a criminal records check from
any person for whom a criminal records check is requested under
section 113.041 of the Revised Code or required by
section
121.08, 173.27, 173.394, 1121.23, 1155.03, 1163.05, 1315.141,
1322.03, 1322.031, 1323.23, 1733.47, 1761.26, 2151.86,
3301.32,
3301.541,
3319.39, 3701.881, 3712.09, 3721.121, 3722.151,
4701.08,
4715.101, 4717.061, 4725.121, 4725.501,
4729.071,
4730.101,
4730.14, 4730.28, 4731.081, 4731.15, 4731.171,
4731.222,
4731.281, 4731.296, 4731.531, 4732.091, 4734.202,
4740.061,
4741.10, 4749.03, 4749.06, 4755.70, 4757.101, 4759.061,
4760.032,
4760.06, 4761.051, 4762.031, 4762.06, 4763.05,
4779.091,
5104.012, 5104.013,
5111.032,
5111.033, 5111.034,
5123.081,
5126.28, 5126.281, or
5153.111 of
the Revised Code.
The form
that the superintendent
prescribes
pursuant to this
division may
be in a tangible format,
in an
electronic format,
or in both
tangible and electronic
formats.
(2) The superintendent shall prescribe standard impression
sheets to obtain the fingerprint impressions of any person for
whom a criminal records check is requested under section 113.041
of the Revised Code or required by section 121.08,
173.27,
173.394, 1121.23, 1155.03, 1163.05, 1315.141, 1322.03, 1322.031,
1323.23,
1733.47, 1761.26, 2151.86, 3301.32, 3301.541,
3319.39,
3701.881,
3712.09, 3721.121, 3722.151, 4701.08,
4715.101,
4717.061,
4725.121, 4725.501, 4729.071, 4730.101,
4730.14,
4730.28,
4731.081, 4731.15, 4731.171, 4731.222, 4731.281,
4731.296,
4731.531, 4732.091, 4734.202, 4740.061, 4741.10,
4749.03,
4749.06,
4755.70, 4757.101, 4759.061, 4760.032,
4760.06,
4761.051, 4762.031, 4762.06, 4763.05, 4779.091,
5104.012,
5104.013, 5111.032, 5111.033,
5111.034,
5123.081,
5126.28,
5126.281, or 5153.111 of the Revised
Code. Any
person
for whom a
records check is requested under or required by any of
those
sections shall obtain the fingerprint impressions at a
county
sheriff's office, municipal police department, or any
other
entity with the ability to make fingerprint impressions on
the
standard impression sheets prescribed by the superintendent.
The
office, department, or entity may charge the person a
reasonable
fee for making the impressions. The standard
impression sheets the
superintendent prescribes pursuant to this
division may be in a
tangible format, in an electronic format, or
in both tangible and
electronic formats.
(3) Subject to division (D) of this section, the
superintendent shall prescribe and charge a reasonable fee for
providing a criminal records check requested under section
113.041, 121.08,
173.27, 173.394, 1121.23, 1155.03, 1163.05,
1315.141, 1322.03, 1322.031, 1323.23, 1733.47, 1761.26, 2151.86,
3301.32,
3301.541,
3319.39, 3701.881, 3712.09, 3721.121,
3722.151,
4701.08, 4715.101, 4717.061, 4725.121,
4725.501,
4729.071,
4730.101,
4730.14, 4730.28, 4731.081,
4731.15,
4731.171,
4731.222, 4731.281,
4731.296, 4731.531,
4732.091,
4734.202,
4740.061, 4741.10, 4749.03, 4749.06,
4755.70,
4757.101,
4759.061, 4760.032, 4760.06, 4761.051, 4762.031,
4762.06,
4763.05, 4779.091, 5104.012, 5104.013, 5111.032,
5111.033,
5111.034,
5123.081, 5126.28, 5126.281, or 5153.111 of
the
Revised
Code. The
person making a criminal records request
under any of those sections
shall pay the
fee
prescribed
pursuant to this division. A
person
making a
request
under
section 3701.881 of the Revised Code
for
a criminal
records
check for an applicant who may be both
responsible for
the care,
custody, or control of a child and
involved in
providing direct
care to an older adult shall pay one
fee for the
request. In the
case of a request under section 1121.23, 1155.03, 1163.05,
1315.141, 1733.47, 1761.26, or
5111.032 of the
Revised Code,
the fee shall be paid in the manner
specified in
that section.
(4) The superintendent of the bureau of criminal
identification and investigation may prescribe methods of
forwarding fingerprint impressions and information necessary to
conduct a criminal records check, which methods shall include, but
not be limited to, an electronic
method.
(D) A determination whether any information exists that
indicates that a person previously has been convicted of or
pleaded guilty to any offense listed or described in division
(A)(1)(a) or (b), (A)(2)(a) or (b), (A)(3)(a) or (b), (A)(4)(a) or
(b), (A)(5)(a) or (b), (A)(6)(a) or (b), (A)(7), (A)(8)(a) or
(b),
(A)(9)(a) or (b), (A)(10)(a) or (b), (A)(12), or (A)(14)
of
this
section, or that indicates that
a person previously has
been
convicted of or pleaded guilty to any
criminal offense in
this
state or any other state regarding a
criminal records check
of a
type described in division (A)(13) of
this section, and
that is
made by the superintendent with respect to
information
considered in a criminal records check in accordance
with this
section is valid for the person who is the subject of
the
criminal
records check for a period of one year from the date
upon which
the superintendent makes the determination. During the
period in
which the determination in regard to a person is valid,
if another
request under this section is made for a criminal
records check
for that person, the superintendent shall provide
the information
that is the basis for the superintendent's
initial determination
at a lower fee than the fee prescribed for
the initial criminal
records check.
(E) As used in this section:
(1) "Criminal records check" means any criminal records check
conducted by the superintendent of the bureau of criminal
identification and investigation in accordance with division (B)
of this section.
(2) "Minor drug possession offense" has the same meaning as
in
section 2925.01 of the Revised Code.
(3) "Older adult" means a person age sixty or older.
(4) "OVI or OVUAC violation" means a violation of section
4511.19 of the Revised Code or a violation of an existing or
former law of this state, any other state, or the United States
that is substantially equivalent to section 4511.19 of the Revised
Code.
Sec. 1321.52. (A)(1) No person, on that person's own behalf
or
on behalf of any other person, shall do either of the
following
without having first obtained a certificate of registration from
the division
of financial institutions:
(a) Advertise, shall advertise, solicit, or hold out that the
person is
engaged in the business of making loans secured by a
mortgage on a borrower's
real estate
which is other than a first
lien on the real estate;
(b) Engage in the business of lending or collecting the
person's own
or another person's money, credit, or choses in
action
for such loans.
(2) Each person issued a certificate of registration is
subject to all the
rules prescribed under sections 1321.51 to
1321.60 of the Revised
Code.
(B) All loans (1) Except as otherwise provided in division
(B)(2) of this
section, any loan made to persons a person who at
the time are
residents of the loan is a resident of this state are
is considered as made within this
state
and subject to the laws
of this state, regardless of any
statement in the contract or note
to the contrary.
(2) If a loan is primarily secured by a lien on real property
in another state and that loan is arranged by a mortgage loan
originator licensed by another state, the borrower may designate
the transaction be governed by the law where the real property is
located if the other state has consumer protection laws covering
the borrower that are applicable to the transaction.
(C) A registrant may make unsecured loans, loans secured
by a
mortgage on a borrower's real estate which is a first lien
or
other than a first lien on the real estate, loans secured by
other
than real estate, and loans secured by any combination of
mortgages and security interests, on terms and conditions
provided
by sections 1321.51 to 1321.60 of the Revised Code.
(D)(1) If a lender that is subject to sections 1321.51
to
1321.60
of the Revised Code makes a loan in violation of division
(A)(1)
of this section, the lender has no right to collect,
receive, or retain
any interest or charges on that loan.
(2) If a registrant applies to the division for a renewal of
the registrant's certificate after the date required by division
(A)(4) of section
1321.53 of the Revised Code, but prior to the
first day of
August of that year, and the division approves the
application, division (D)(1) of this section does not apply with
respect to any loan made by the registrant while the registrant's
certificate was expired.
Sec. 1323.01. (A) As used in this chapter:
(1) "Mortgage servicer" or "servicer" means a person who
engages directly
or indirectly, whether for compensation, gain
for another, or on
the person's own behalf, in the business of
receiving scheduled
periodic payments from a borrower pursuant to
the terms of a
residential mortgage loan, including amounts
received for deposit
in an escrow account, and applying those
payments received toward
principal, interest, and other
obligations of the borrower
including amounts to be paid from an
escrow account.
"Mortgage servicer" includes a person who makes or holds a
loan if that person also services the loan.
"Mortgage servicer" does not include any of the following:
(a) The federal deposit insurance corporation or the
resolution trust corporation, in connection with assets acquired,
assigned, sold, or transferred pursuant to the "Federal Deposit
Insurance Corporation Act," 64 Stat. 873 (1950), 12 U.S.C.
1823(c), or as receiver or conservator of an insured depository
institution;
(b) The government national mortgage association, the federal
national mortgage association, the federal home loan mortgage
corporation, the resolution trust corporation, or the federal
deposit insurance corporation, in any case in which the
assignment, sale, or transfer of the servicing of the mortgage
loan is preceded by:
(i) Termination of the contract for servicing the loan for
cause;
(ii) Commencement of proceedings for bankruptcy of the
servicer;
(iii) Commencement of proceedings by the federal deposit
insurance corporation or the resolution trust corporation for
conservatorship or receivership of the servicer or an entity by
which the servicer is owned or controlled.
(2) "Mortgage lender" means a person engaged in the business
of making residential mortgage loans for compensation or gain.
(3) "Residential mortgage" and "residential mortgage loan"
mean an obligation to pay a sum of money evidenced by a note and
secured by a lien upon real property located within this state
containing four or fewer residential units and includes such an
obligation on a residential condominium or cooperative unit.
(4) "Employee" means an individual for whom a person pays a
wage or salary, pays social security and unemployment taxes,
provides workers' compensation coverage, and withholds local,
state, and federal income taxes. "Employee" includes any
individual who acts as an operations manager of a registered
mortgage servicer, but for whom the servicer is prevented by law
from making income tax withholdings.
(5) "Operations manager" means the employee or owner
responsible for the everyday operations, compliance requirements,
and management of a registrant or applicant.
(6) "Subprime loan" or "subprime mortgage" means a home loan
originated between January 1, 2001, and January 1, 2009, in which
the difference between the annual percentage rate for the loan and
the average prime offer rate for a comparable transaction, as of
the date the interest rate is set, is greater than one and
one-half percentage points if the loan is a first mortgage loan or
three and one-half percentage points if the loan is a secondary
mortgage loan. For the purposes of this definition, "average prime
offer rate" has the meaning as provided in 12 C.F.R. 226.35.
(B) Sections 1323.01 to 1323.11 of the Revised Code shall be
known as the "special program to reduce foreclosures act."
(C) The deputy superintendent for consumer finance, when
authorized by the superintendent of financial institutions of the
department of commerce, may act in place of the superintendent
with respect to any duty or authority of the superintendent under
this chapter.
Sec. 1323.02. (A) At least sixty days prior to filing a
complaint to initiate a foreclosure action that involves a
residential mortgage loan on property occupied by an owner or a
tenant of that owner, a
mortgage servicer shall provide the
borrower with a notice to inform the borrower of the amount due to
the
lender and the
availability of
resources to avoid
foreclosure.
This notice shall
be on a form
the superintendent
of financial institutions in the department of commerce
prescribes and shall include all of the
following:
(1) An itemization of all past due amounts causing the loan
to be in default;
(2) An itemization of any other charges that the borrower
must pay in order to be current on loan payments;
(3) A statement that the borrower may have options available
other than foreclosure, and that the borrower may discuss
available options with the mortgage lender, the mortgage servicer,
or a counselor approved by the United States department of housing
and urban development;
(4) The address, telephone number, and other contact
information for the mortgage lender, the mortgage servicer, or an
agent for either of them who is authorized to work with the
borrower to avoid foreclosure;
(5) The name, address, telephone number, and other contact
information for one or more United States department of housing
and urban development-approved counseling agencies operating to
assist borrowers in Ohio to avoid foreclosure;
(6) The address, telephone number, and other contact
information for the consumer complaint sections of the division of
financial institutions of the Ohio department of commerce and the
Ohio attorney general;
(7) The following information
prominently displayed:
(8) Other information the director considers necessary and
includes on the form.
"YOU HAVE THE RIGHT TO REMAIN IN THIS PROPERTY DURING THE
FORECLOSURE PROCEEDINGS AND AFTER THE SHERIFF'S SALE UNTIL A COURT
CONFIRMS THE SALE.
ADDRESS OF PROPERTY: ..........................."
(B) The notice this section requires shall be mailed to the
last known address of the borrower and shall be evidenced by a
certificate of mailing from the United States postal service.
Sec. 1323.04. (A) Within three business days after mailing
the notice section 1323.02 of the
Revised Code requires, a
mortgage servicer shall file
with the administrative director of
the Ohio supreme
court the date the notice was mailed to the
borrower and, unless
prohibited by state or federal law,
any
additional information the administrative director
requests.
(B) Within seven days after entering into a modification
agreement,
a mortgage servicer shall notify the administrative
director of
the nature and terms of an
agreement with a borrower
to do any of
the following:
(1) Reduce or forego any fees or arrearages, including
acceptance of a deed in lieu of foreclosure;
(2) Alter the terms of the residential
mortgage loan
agreement by a reduction in interest rate, lessening
of monthly
payment, increase in the term for repayment, deferment
of
interest or other payment, or alteration of a variable rate
adjustment date;
(3) Refinance the loan under new terms.
(C) Any notice or filing this section requires shall be made
in an electronic format as the administrative director prescribes,
and contain the name and address of the borrower, the name and
address of the mortgage servicer, and the name and address of the
holder of the mortgage.
(D) The administrative director shall include all information
received pursuant to this section in the information database
developed and maintained pursuant to section 1323.07 of the
Revised Code. This information shall be available
for review by
the state foreclosure prevention project as
described in section
1323.06 of the Revised Code.
Sec. 1323.05. (A) The superintendent of financial
institutions of the department of commerce shall adopt
comprehensive minimum loan modification standards by rule. The
standards shall be designed to keep a borrower whose principal
residence is in Ohio, in the borrower's
home
when the
anticipated recovery under a loan modification or
workout plan is
greater than the anticipated recovery
through
foreclosure, on a
net present value basis.
(B) The loan modification standards adopted pursuant to this
section shall include some
combination
of the following
features:
(1) An interest rate reduction, as needed, for a fixed term
of at least five years;
(2) An extension of the amortization period for the loan
term, to not more than forty years from the original date of the
loan;
(3) Deferral of some portion of the principal amount of the
unpaid principal balance until maturity of the loan;
(4) Reduction of principal;
(5) Compliance with a federally mandated loan modification
program;
(6) Other factors the superintendent determines are
appropriate, which may include efforts implemented in other states
that have
resulted in a reduction in foreclosures.
Sec. 1323.06. The director of commerce shall establish the
"state
foreclosure prevention project" to collect residential
mortgage foreclosure
information, track loss mitigation
efforts,
encourage viable loan
modifications, and seek solutions
to avoid
foreclosures for
residential mortgage loans. In
developing the
project, the
director may include input from the
United States
department of
housing and urban development-approved
housing
counselors,
community organizations, state agencies
including
the Ohio
attorney general, mortgage lenders, mortgage
servicers,
and any
other
appropriate persons.
Sec. 1323.07. (A) The director of commerce shall design and
develop, in consultation with the administrative director of the
Ohio supreme court, the state foreclosure database to track
residential mortgage
foreclosure information and to promote the
efforts of the state
foreclosure prevention
project. Not later
than October 1, 2009,
the administrative
director of the Ohio
supreme court shall
implement the database.
(B) No person shall have access to the state foreclosure
database except the following individuals or the individual's
designated
representative: the administrative director of the
Ohio supreme
court, the director of commerce, the superintendent
of financial institutions, the Ohio
attorney general, and the
clerk of a court of common pleas for the
purposes described in
section 2303.33 of the Revised Code.
(C) Any information provided for inclusion in the foreclosure
prevention database is exclusively for the use and purposes of the
state foreclosure prevention project. The database is not a public
record subject to
section 149.43 of the Revised Code and the
information provided for and included in the database may not be
disclosed except
as this section provides. Any mortgage servicer
shall have access
only
to the information submitted with respect
to its own loans.
(D) Providing information as this chapter requires for
inclusion in the prevention foreclosure database does not violate
any state law pertaining to financial privacy. A mortgage servicer
shall be held harmless for any alleged breach of privacy rights of
a borrower with respect to the information the mortgage servicer
provides in accordance with this chapter.
Sec. 1323.08. (A) The director of commerce annually shall
submit a
report to the general assembly describing the operation
of the
state foreclosure prevention project until the funds
specifically
appropriated to operate the project are completely
disbursed.
The director shall present information in the report
in
aggregate form,
and may include the number of borrowers
helped,
the effectiveness
of the funds in preventing
foreclosure,
recommendations for
further efforts needed to
reduce
foreclosures, and any other
aggregated information the
director
determines is pertinent
or that the general assembly
requests.
(B) In preparing the report, the
director shall review
information provided in the
foreclosure
prevention database to
determine all of the following:
(1) Whether the loss mitigation programs and efforts
effectively address loan
default issues;
(2) The most effective means for establishing
successful
foreclosure alternatives including loan modification
programs;
(3) Which procedures best comport with a servicer's
obligation to investors to lessen losses
resulting from borrower
defaults.
Sec. 1323.09. The superintendent of financial isntitutions
in the department of commerce shall review the
information in the
mortgage foreclosure database to determine
whether any mortgage
servicer has failed to provide disclosures
or information this
chapter requires or is not acting in good
faith to provide
borrowers with an effective method to discuss
payment options for
past due amounts and alternatives to
foreclosure. If the
superintendent determines that a mortgage
servicer
has violated
any of these requirements, the
superintendent may
consider that
conduct or failure when
determining the
character and general
fitness of the mortgage
servicer for its
licensure or
certificate
of registration as a mortgage servicer
under
this
chapter or Chapter 1321. of the
Revised Code.
Sec. 1323.10. (A) There is hereby established in the state
treasury the foreclosure prevention revolving trust fund,
comprised of moneys collected or accruing to the trust fund, for
the purpose of providing the following:
(1) Grants to counseling foreclosure prevention entities for
the purpose of maintaining or expanding foreclosure prevention
counseling and related services and activities to assist
homeowners to prevent foreclosure;
(2) Grants to individuals or counseling entities for the
purpose of providing emergency foreclosure prevention assistance
loans;
(3) Loans and grants to nonprofit or local government
entities to provide relocation assistance or acquire mortgage
loans or properties from creditors in order to restructure the
mortgage loans or restore the properties to productive use;
(4) Funding to establish, operate, and maintain the state
foreclosure database established pursuant to section 1323.07 of
the Revised Code;
(5) Funding for the expenses of the state
foreclosure
prevention project and the associated
regulatory costs the
superintendent of financial institutions of
the department of
commerce and the director of commerce incur in
administering this
chapter and sections
1321.51 to 1321.60 and
1322.01 to 1322.12
of the Revised Code.
(B) Each fiscal quarter the director of commerce shall
distribute the amounts in the foreclosure prevention revolving
trust fund as follows: ten per cent for
administrative costs to
the consumer finance fund
in the state treasury, created under
section 1321.21 of the
Revised Code, up to five per cent to the
office of the
administrative director of the supreme court, and
the balance to
be divided between the department of development
for deposit into
the Ohio housing trust fund and boards of county
commissioners.
The amount awarded to boards of county
commissioners shall be
distributed on a pro rata basis of the
funds submitted with respect to foreclosure filings in each county
under section 1323.11 of the Revised Code.
(C) The director of development and boards of county
commissioners shall establish rules governing the procedures to
qualify counseling and foreclosure prevention entities, nonprofit
entities, and individuals for loan assistance to receive moneys
from the revolving trust fund to carry out the purposes of
division (A) of
this section.
(D) Any moneys collected under this section but not allocated
by the end of the fiscal year shall be available for allocation in
the subsequent fiscal year.
Sec. 1323.11. (A) In addition to any filing fee required by
law, a creditor that files a complaint to initiate a foreclosure
action involving a residential mortgage loan simultaneously
shall
transmit a certified check in the amount of one thousand
five
hundred dollars payable to the department of commerce for
deposit
into the trust fund established under section
1323.10 of the
Revised Code. The creditor
may not in any manner
add the amount
paid pursuant to this
division to the amount the
borrower owes
the creditor or seek to
recover this cost from the
borrower.
(B) No court shall permit the filing of an action for a
mortgage foreclosure or grant a judgment of foreclosure to any
creditor of a residential loan unless that creditor provides
evidence to the court that the creditor has complied with this
section.
(C) The director of commerce shall establish an accounting
system to track the county that corresponds to each fee that is
paid pursuant to this section. The accounting system shall be used
to determine the share of the funds to be distributed to each
county pursuant to section 1323.10 of the Revised Code.
(D) The fee this section requires shall not be charged with
respect to a filing for a foreclosure action that is made for an
unoccupied property.
Sec. 1323.20. (A) Sections 1323.20 to 1323.37 of the Revised
Code shall be known as the "residential mortgage servicers
registration act."
(B)
Sections 1323.20 to 1323.37 of the Revised Code do not
apply to any of the following:
(1) Any entity that is chartered and lawfully doing business
as a bank, savings bank, trust company, savings and loan
association, or credit union under the authority of any law of
this state, another state, or the United States;
(2) Life, property, or casualty insurance companies licensed
to do business in this state;
(3) Any attorney or law firm acting on behalf of any mortgage
note holder or mortgage servicer when acting in connection with
the practice of law in this state, except as otherwise provided in
division (D) of this section.
(4) Any political subdivision, or any governmental or other
public agency, corporation, or instrumentality in or of
the
United States or any state;
(5) An institution of higher education as defined in section
1713.01 of the
Revised Code;
(6) A debt collector acting under the name of, and as agent
for, a mortgage servicer registrant to collect a debt in default.
(C) Mortgage lenders registered under section 1321.52 of the
Revised Code and mortgage brokers registered under section 1322.02
of the Revised Code are exempt from the registration requirements
of section 1323.21 of the Revised Code but shall comply with
divisions (C), (D), (F), and (G) of section 1323.33, and sections
1323.34, 1323.35, and 1323.36 of the Revised Code
in connection
with the servicing of residential mortgage loans.
Any violation
of these sections is an unfair and deceptive
practice in
violation of section 1345.02 of the Revised Code and
may result
in administrative action and penalties the
superintendent of
financial institutions of the department of
commerce imposes
pursuant to sections 1321.54 and 1322.10 of the
Revised Code.
(D) Any attorney or law firm primarily engaged in debt
collection shall comply with division (D) of section 1323.33 and
section 1323.36 of the Revised Code when acting as a mortgage
servicer, notwithstanding the general exemption from the
provisions of sections 1323.20 to 1323.37 of the Revised Code. Any
violation of division (D) of section 1323.33 or section 1323.36 of
the Revised Code, in connection with any debt collection activity
that is not considered the practice of law, is deemed to be an
unfair and deceptive practice in violation of section 1345.02 of
the Revised Code.
Sec. 1323.21. (A) No person, on that person's own behalf or
on behalf of any other person, shall do either of the following
unless that person is registered as a mortgage servicer and has a
certificate of registration from the
superintendent of financial
institutions of the department of
commerce:
(1) Engage in the business of collecting money, credit, or
choses in action for
residential mortgage loans or otherwise act
as a mortgage
servicer;
(2) Collect accelerated mortgage payments from a biweekly or
other accelerated payment plan that the person operates, arranges,
or offers to arrange in connection
with a residential mortgage
loan.
(B) Any person who acts in
willful violation of division (A)
of this section, after receiving
written notice of the violation
from the superintendent or a court,
may not collect any amounts
as interest or charges on
that loan. Any amounts collected shall
be
credited as a principal reduction to the loan.
(C)(1) When a registration expires for any reason and the
former registrant continues to service residential mortgage loans
in violation of
division (A) of this section, the superintendent
may take
administrative action, including action on any
subsequent
application for a certificate of registration.
(2) A servicer with an expired registration may not
collect,
charge, or retain
any late fee, bad check charge except as
incurred, charge related
to default, cost to realize on its
security interest, or
prepayment penalty on any residential
mortgage loan unless that servicer applies to the superintendent
for a
registration renewal and a certificate of registration
prior to the first day of
August of the year the registration
expires and the superintendent approves that
application.
(D) No person shall conduct the business of a mortgage
servicer in association with any exempt business if the
superintendent has ordered that exempt business, in writing, to
desist from conduct that the superintendent found to be a mere
conduit for the mortgage servicer and that the association of the
servicer and the exempt business is intended to conceal an evasion
of sections 1323.20 to 1323.37 of the Revised Code or the rules
adopted pursuant to those sections. Any determination made
pursuant to this division shall be made in accordance with Chapter
119. of the Revised Code.
Sec. 1323.22. (A) Any application for registration as a
mortgage servicer shall be in writing, under
oath, and in the
form the superintendent of financial institutions of
the
department of commerce prescribes. It shall contain an undertaking
by the applicant to
abide by this chapter and any other
information that the superintendent requires. Applicants that are
foreign corporations shall obtain and maintain a license pursuant
to Chapter 1703. of the Revised Code before seeking registration
or registration renewal as a mortgage servicer.
(B) Upon an applicant's filing an application and paying a
nonrefundable two hundred dollar investigation fee, a
nonrefundable one thousand dollar annual registration fee, and any
additional fee required by law, the superintendent shall
investigate the relevant facts. If the application requires
investigation outside this state, the applicant may be required to
advance sufficient funds to pay any of the actual expenses when it
appears that these expenses will exceed two
hundred dollars. The
superintendent shall
furnish an itemized
statement of any
expenses
the applicant is required
to pay. The superintendent
shall not issue any certificate of registration
unless all
the
required fees have been paid.
(C) An applicant shall designate an employee or owner who has
at least three
years'
experience in the mortgage, collections,
servicing, or
lending
field as the
applicant's operations
manager. No operations
manager shall be employed by any other
mortgage servicer while acting as an operations manager. Any
operations manager must be acceptable to the superintendent.
(D) The superintendent may consider an application for
registration as a mortgage servicer withdrawn if that application
does not contain all of the information required under division
(A) of this section and the applicant does not submit that
information within ninety days after the superintendent
requests
the information in writing.
(E) The superintendent of financial institutions shall
deposit any licensing fee, charge, or fine received pursuant to
sections 1323.20 to 1323.37 of the Revised Code into the consumer
finance fund in the state treasury, created under section 1321.21
of the Revised Code, unless otherwise specified by law.
Sec. 1323.23. (A) Any investigation the superintendent of
financial institutions of the department of commerce undertakes
with respect to an application for registration as a mortgage
servicer shall include a civil records check and criminal records
check at the time of
the initial application and every five years
thereafter, or upon
a change of control of the registrant if the
persons acquiring
control have not had a criminal records check
submitted to the
superintendent within the past five years. Where
the applicant is
a business entity, the superintendent may
require a criminal
background check of those persons that the
superintendent
determines have the authority to direct
and
control the
operations of the applicant.
(B) When conducting a criminal background check, the
superintendent shall request the
superintendent of the bureau of
criminal identification and
investigation to conduct a
criminal
records check based on the
applicant's fingerprints or if
fingerprints are unreadable, based
on the applicant's social
security number.
Notwithstanding division (K) of
section 121.08
of the Revised
Code, the superintendent of
financial
institutions shall request
that criminal record
information from
the federal bureau of
investigation be obtained
as part of the
criminal records check.
(C) The applicant shall pay any fee required under division
(C)(3) of section 109.572 of the Revised Code.
(D) The superintendent shall conduct the civil records checks
this section requires pursuant to procedures the superintendent
adopts by rule.
Sec. 1323.24. (A) The superintendent of financial
institutions of the department of commerce shall issue a
certificate of registration as a mortgage servicer to an applicant
if the superintendent finds that the applicant's financial
responsibility, experience, character, and general fitness command
the confidence of the public and warrant the belief that the
business will be operated honestly and fairly in compliance with
the purposes of this chapter and the rules promulgated under it,
and that the applicant has the requisite bond or applicable net
worth as this chapter requires.
(B) Upon finding an applicant does not meet the conditions
set forth in this chapter, the superintendent shall issue a notice
of intent to deny an application for registration or renewal. The
superintendent forthwith shall notify the applicant of the denial,
the grounds for the denial, and the applicant's opportunity to be
heard on the action in accordance with Chapter 119. of the Revised
Code.
(C) Any certificate issued pursuant to this section shall
expire on the first day of July next after its issue, and on the
first day of July in each succeeding year unless renewed by filing
a renewal application and payment of an annual fee and any
additional fee required by law, on or before the last day of June
of each year.
Sec. 1323.25. (A) To renew a registration as a mortgage
servicer, a registrant shall timely file a renewal application on
a form the superintendent of financial institutions of the
department of commerce prescribes, along with any additional
information that the superintendent requires.
(B) As a condition of renewal, a registrant must provide
proof that the designated operation manager meets the criteria for
initial approval set forth in section 1323.23 of the Revised Code
and that the mortgage servicer meets the minimum standards for the
issuance of the certificate of registration under sections 1323.22
to 1323.24 of the Revised Code.
(C) The superintendent shall not grant any renewal if the
applicant's certificate of registration is subject to an order of
suspension, revocation, or an unpaid and past due fine the
superintendent has imposed.
(D) If an application for renewal of a certificate of
registration does not contain all the information this section
requires, and if the registrant does not submit that information
to the superintendent within ninety days after the superintendent
requests the information in writing, the superintendent may
consider the application withdrawn.
Sec. 1323.26. At any time there is a change of five per cent
or more in the ownership of a registrant, the superintendent of
financial institutions of the department of commerce may make any
investigation necessary to determine whether any fact or condition
presently exists that would have warranted the superintendent
denying the original
application had the fact or condition
existed at the time of that application. If the superintendent
finds such a
fact or condition, the superintendent may revoke the
registrant's
registration and certificate pursuant to Chapter
119. of the Revised Code.
Sec. 1323.27. (A) Each place of business to
which borrowers
are regularly directed to remit payment shall display its own
certificate of registration. The
superintendent of financial
institutions of the department of
commerce may issue additional
certificates of registration to the
same person for additional
places of business upon compliance with the requirements governing
the
issuance of a single certificate.
(B)(1) Any change in the place of business to
a location
outside the original municipal corporation requires a new
certificate of registration. A registrant who makes
such a change
of location shall submit a new application, pay the
registration
fee
and, if the superintendent requires, pay an
investigation
fee of two hundred dollars. The registrant must have the new
certificate before operating in the new location.
(2) A registrant who wishes to change its place of business
within the same municipal corporation shall give written
notice
of the change in advance to the superintendent, who shall
provide
a certificate for the new address without cost.
(C) A registrant that changes its name shall give written
notice of the change to the superintendent prior to acting as a
mortgage servicer under the new name. The superintendent shall
provide a certificate in the new name without cost.
(D) A registrant shall keep each certificate conspicuously
posted in
each place of business. A certificate of
registration
is not transferable or
assignable.
Sec. 1323.28. (A) Any person who acts as a mortgage
servicer, if not bonded pursuant to division (B) of this section,
shall maintain at all times both of the following:
(1) A net worth of at least two hundred fifty thousand
dollars;
(2) For each additional certificate of registration beyond
the first, assets
of at least fifty thousand dollars either in
use or readily
available for use in the conduct of the business.
(B) Any person acting as a mortgage servicer by
arranging
biweekly or other accelerated payment plans and
collecting those
payments shall obtain and maintain in effect at
all times a
corporate surety bond issued by a bonding company or
insurance
company authorized to do business in this state. The servicer
shall file a copy
of the bond with the superintendent of
financial
institutions of the
department of commerce. The bond
shall meet all of the
following conditions:
(1) Be in favor of the superintendent;
(2) Have a base penal sum of two hundred fifty
thousand
dollars for the first location and an additional penal sum of ten
thousand
dollars for each additional location that requires a
separate certificate
of registration;
(3) Have a term that coincides with the term of
registration;
(4) Be for the exclusive benefit of any
individual borrower
injured by any violation of sections 1323.20 to
1323.37 of the
Revised Code or the rules
promulgated thereunder by a servicer,
its employees, or agent;
(5) Have an aggregate liability of the corporate surety for
any
and all breaches of the conditions of the bond shall not
exceed
the penal sum of the bond.
(C)(1) A mortgage servicer shall give notice to the
superintendent
by certified mail of any action that is brought by
a borrower brings
against the servicer alleging injury by a
violation of
sections 1323.20 to 1323.37 of the Revised Code
and
of any judgment that is entered
against the servicer by a
borrower injured by a violation of those sections. The notice
shall provide details sufficient to
identify the action or
judgment. The servicer shall file the notice with the
superintendent within ten
days after the commencement of the
action or receipt of the notice of entry of a judgment.
(2) A corporate surety shall give notice of any payment to
the superintendent by certified mail within ten days after it pays
any claim or judgment, with details sufficient to identify the
person and the claim or judgment paid.
(D) Whenever the penal sum of the corporate surety bond is
reduced by one or more recoveries or payments, a servicer shall
furnish a new or additional bond under this section, so that the
total or aggregate penal sum of the bond or bonds equals the sum
required by this section, or shall furnish an endorsement executed
by the corporate surety reinstating the bond to the required penal
sum set forth in division (B) of this section.
(E) The liability of the corporate surety on the bond to the
superintendent and to any borrower injured by a violation of
sections 1323.20 to 1323.37 of the Revised Code is not affected in
any way by any misrepresentation,
breach of warranty, or failure
to pay the premium, by any act or
omission upon the part of the
servicer, by the insolvency or
bankruptcy of the servicer, or by
the insolvency of the
servicer's estate. The servicer shall
maintain in effect liability for any
act or omission that
occurs
during the term of the corporate
surety bond for at least two
years after the date on
which the corporate surety bond is
terminated or canceled.
(F) Neither the servicer nor the corporate surety shall
cancel a corporate surety bond except upon notice to the
superintendent by certified mail, return receipt requested. A
cancellation is not effective until thirty days after the
superintendent receives the notice.
(G) No servicer shall fail to comply with this section. Any
servicer that fails to comply shall cease
acting as a mortgage
servicer in this state until that servicer
complies with this
section.
Sec. 1323.29. (A) The superintendent of financial
institutions of the department of commerce may adopt, in
accordance with Chapter 119. of the Revised Code, rules to
administer and enforce this chapter and to carry out its purposes.
(B)(1) After
written notice to the registrant stating the
contemplated
action, the grounds for the action, and the
registrant's
opportunity to be heard in accordance with Chapter
119. of the Revised Code, the superintendent may revoke, suspend,
or refuse to
renew any registration and certificate issued under
this chapter if the superintendent finds any of the
following:
(a) A violation of or failure to comply with any provision of
sections 1323.20 to 1323.37 of the Revised Code or the rules
adopted under those sections, under Chapter 1345. of
the Revised
Code, federal debt collection laws, or any other law
applicable
to the business conducted under the registrant's certificate of
registration;
(b) The registrant has been convicted of or pleads guilty or
nolo
contendere in a domestic, foreign, or military court to any
criminal felony offense or
any
criminal offense involving theft,
receiving stolen property,
embezzlement, forgery, fraud, passing
bad checks, money
laundering, breach of trust, dishonesty, or
drug trafficking, or
any criminal offense involving money or
securities;
(c) The registrant's certificate of
registration, license,
or comparable authority as a mortgage servicer has been revoked in
any other state.
(2) The superintendent may impose a monetary
fine in
addition to, or in lieu of, any revocation, suspension, or denial
or in settlement of matters subject to claims under division
(B)(1)(a) of this section.
(3) Except as otherwise provided in section 1323.21 of the
Revised Code, the revocation, suspension, or refusal to renew a
registration does not impair the obligation of any pre-existing
lawful contract made under this chapter if a mortgage servicer
makes a good faith effort to promptly transfer its collection
rights to a registrant or person exempt from registration. A
servicer that does not make the requisite good faith effort is
subject to additional monetary fines and legal or administrative
action by the superintendent. Nothing in this section limits a
court's
ability to impose a cease and desist order preventing any
further
business or servicing activity.
(C)(1) The superintendent may investigate alleged violations
of
sections 1323.20 to 1323.37 of the Revised Code or the rules
adopted thereunder, or complaints
concerning any such violation.
The superintendent may apply to the court of common
pleas for an
order enjoining
any violation. Upon a showing that a
person has
committed or is about to
commit a violation, the
court shall
grant an injunction,
restraining order, or other
appropriate
relief.
(2) In conducting an investigation,
the superintendent, by
subpoena, may compel witnesses to testify
in relation to any
matter over which the superintendent has
jurisdiction, and may
require the production or photocopying of
any book, record, or
other document pertaining to such matter. If
a person fails to
comply with the subpoena, or permit photocopying of any document
subpoenaed, a court of common pleas, upon the superintendent's
application, shall compel obedience by attachment proceedings
for
contempt or a refusal to testify.
(D) If the superintendent determines that a person is engaged
in or may be engaged in activities that violate sections 1323.20
to 1323.37 of the
Revised Code or the rules adopted thereunder,
the superintendent,
after notice and a hearing conducted in
accordance with Chapter
119. of the Revised Code, may issue a
cease and desist order.
(E)(1) The superintendent may impose a fine of not more than
one thousand dollars for each day a violation of this chapter or
the rules adopted under it is committed, repeated, or continued.
All fines collected pursuant to
this section shall be paid to the
treasurer of state to the credit
of the consumer finance fund
created in section 1321.21 of the
Revised Code. In determining
the amount of a fine to be impose, the superintendent may consider
all of
the following:
(a) The seriousness of the violation;
(b) The servicer's good faith efforts to prevent the
violation;
(c) The servicer's history regarding violations and
compliance with the superintendent's orders;
(d) The servicer's financial resources;
(e) Any other matters the superintendent considers
appropriate in enforcing this chapter.
(2) Monetary fines imposed under this section do not
preclude any criminal fine described in section
1323.99 of the
Revised Code.
Sec. 1323.30. (A)(1) A mortgage
servicer shall keep
separate records pertaining to each loan serviced and preserve
those records for so long as the servicer has responsibility for
the loan. At any time responsibility for the loan is transferred
to another servicer, the servicer who is ceasing responsibility
shall transfer all original loan documents and records to the
servicer who is assuming responsibility for the loan. Any system
of
electronic imaging of required
records shall be approved by
the
superintendent of financial
institutions of the department
of
commerce prior to its use but at no time shall such a system
be a substitute for maintaining original documents as this section
requires.
(2) As often as necessary, the superintendent may make or
cause to be made an examination of records pertaining to
loans
serviced for the purpose of determining whether the
servicer is
complying with sections 1323.20 to 1323.37 of the
Revised Code
and of verifying any
registrant's annual report.
(B)(1) The
superintendent may require each servicer to file
each year a report under oath or affirmation, on
forms the
superintendent supplies, concerning the business and
operations
for the preceding calendar year. A servicer that
operates two or
more registered offices or who operates registered offices with
one or more affiliated servicers, may file a
composite
report of
the group of registered offices
in lieu of
individual reports.
(2) The reports provided under division (B)(1) of
this
section are not public records and are not open to public
inspection.
(C)(1) The following information is confidential:
(a) Examination information, and any information leading to
or arising from an examination;
(b) Investigation information, and any information arising
from or leading to an investigation.
(2) The information described in this division is
confidential for all purposes except when it is
necessary for the
superintendent to take official action regarding
the affairs of a
servicer or in connection with criminal or
civil
proceedings to
be initiated by a prosecuting attorney or the
attorney general.
This information may be introduced into
evidence or disclosed
pursuant to section
1181.25 of the Revised Code.
(D) All application information is a public record as defined
in section
149.43 of the Revised Code, except social security
numbers, employer identification numbers, financial account
numbers, the identity of the institution where financial accounts
are maintained, personal financial information, fingerprint cards
and the information contained on such cards, and criminal
background information.
(E) Nothing in this section prevents the superintendent from
releasing information relating to servicers or exchanging that
information with other financial institution regulatory
authorities. For this purpose, a "financial institution regulatory
authority" includes a regulator of a business activity in which a
servicer is engaged or has applied to engage, to the extent
that
the regulator has jurisdiction over a servicer engaged in
that
business activity. A servicer is engaged in a business
activity,
and a regulator of that business activity has
jurisdiction over
the servicer, whether the servicer conducts
the
activity
directly or a subsidiary or affiliate of the
servicer
conducts
the activity.
(F) Nothing in this section prevents the superintendent of
financial institutions from releasing information relating to
mortgage
servicers to the attorney general, to the superintendent
of real
estate and professional licensing of the department of
commerce
for purposes relating to the administration of Chapters
4735. and
4763. of the Revised Code, to the superintendent of
insurance for
purposes relating to the administration of Chapter
3953. of the
Revised Code, to the commissioner of securities of
the department
of commerce for purposes relating to the
administration of Chapter
1707. of the Revised Code, or to local
law enforcement agencies
and local prosecutors. Information
released pursuant
to this
section remains confidential. The
superintendent of
financial
institutions, by rule, may designate
additional state
agencies
and regulatory authorities as entities
with which to
share this
confidential information.
Sec. 1323.31. No person, in connection with any examination
or investigation conducted by the superintendent of financial
institutions of the department of commerce under this chapter,
shall knowingly do any of the following:
(A) Circumvent, interfere with, obstruct, or fail to
cooperate, including making a false or misleading statement,
failing to produce records, or intimidating or suborning any
witness;
(B) Withhold, abstract, remove, mutilate, destroy, or secrete
any books, records, computer records, or other information;
(C) Tamper with, alter, or manufacture any evidence.
Sec. 1323.32. (A) No mortgage
servicer, through its
operations manager or otherwise, shall fail
to reasonably
supervise persons the servicer employs or associates with, or
to
establish reasonable procedures to avoid
violations
of sections
1323.20 to 1323.37 of the Revised Code or the rules
adopted
thereunder,
violations of applicable state and federal
consumer
and lending
laws or rules by persons the servicer employs or
associates with.
(B) Within ten business days of any change in a mortgage
servicer's
statutory agent designation or address, the servicer
shall file
with the superintendent of financial institutions of
the
department of commerce evidence that the servicer has filed
such
changes with the secretary of state.
(C)(1) At least thirty days prior to the closure of a
registered office location, a mortgage servicer shall notify the
superintendent by filing a notice of closure on a form approved by
the superintendent. The notice shall indicate the custodian of the
records and where the records will be maintained.
Within five
business days after the closure, the servicer shall
surrender the
certificate of
registration issued to that location
by returning
it to the
superintendent.
(2) The closure of an office and the surrender of a
certificate does not affect a mortgage servicer's civil or
criminal
liability
for acts committed before the surrender.
(D) A mortgage servicer shall maintain books and records in
compliance with this chapter and make them available to the
superintendent of financial institutions of the department of
commerce. After any closure, records remain subject to examination
and or investigation. The servicer shall send the superintendent
written notice of
any change in the location of the records or
the
custodian of
those records.
Sec. 1323.33. (A) No mortgage servicer shall refuse to
provide
information regarding the amount required to pay in full
a
residential mortgage loan when the borrower or a person the
borrower designates makes that request in writing. The
servicer
shall provide the requested payoff statement without
charge one
time
during any twelve-month period. If additional payoff
statements
are requested, the servicer may charge an amount not
in excess
of
three dollars for each additional statement. The
servicer shall provide any payoff statement within five business
days of the request.
(B) No mortgage servicer shall obtain a certificate of
registration
through any false or fraudulent representation of a
material fact
or any omission of a material fact required by
state or federal
law, or make any substantial misrepresentation
in the registration
application.
(C) No mortgage servicer shall make false or misleading
statements
of
a material fact, omissions of statements required
by state or
federal law, or false promises regarding a material
fact, through
advertising or other means, or engage in a
continued course of
misrepresentations.
(D) No mortgage servicer shall
engage in conduct that
constitutes
improper, fraudulent, or
dishonest dealings.
(E) No mortgage servicer or applicant for registration shall
fail to
notify the
superintendent of financial institutions of
the
department of
commerce within thirty days after the servicer
or
applicant
has:
(1) Been convicted of or pleads guilty or nolo contendere in
a domestic, foreign, or military court to any criminal felony
offense;
(2) Been convicted of or pleads guilty or nolo contendere in
a domestic, foreign, or military court to any criminal offense
involving theft, receiving stolen property, embezzlement, forgery,
fraud, passing bad checks, money laundering, breach of trust,
dishonesty, or drug trafficking, or any criminal offense involving
money or securities;
(3) Had a mortgage servicer registration, license, or
comparable authority revoked in any other state.
(F) No mortgage servicer shall knowingly make, propose, or
solicit
fraudulent, false, or misleading statements on any
mortgage
servicing document or on any document related to an
accounting of
payments remitted or disbursed.
For purposes of
this division,
"fraudulent, false, or misleading
statements"
does not include
mathematical errors, inadvertent
transposition
of numbers,
typographical errors, or any other bona
fide error.
(G) No mortgage servicer shall knowingly instruct, solicit,
propose,
or otherwise cause a borrower to sign in blank a
document.
(H) Any violation of division (C), (D), (F), or (G) of this
section, or
section 1323.34, 1323.35, or 1323.36 of the Revised
Code is an unfair and
deceptive act or practice in violation of
section 1345.02 of the
Revised Code.
Sec. 1323.34. (A) In addition to the duties imposed by common
law or state or federal law a
mortgage servicer shall do all of
the following:
(1) Act with good faith and fair dealing in any transaction,
practice, or course of business associated with servicing;
(2) Act with reasonable skill, care, and diligence;
(3) Act in good faith to provide the
borrower with the facts
relating to the nature and extent of any
delinquency or default
and the amounts owed or necessary
to reinstate the loan or cure
the default;
(4) Subject to the
servicer's duties and obligations under
its mortgage
servicing contract, attempt a resolution,
modification, or
workout to the delinquency of a borrower who
requests assistance.
(5) Make a good faith effort to correct any erroneous
information it has provided to any credit reporting agency;
(6) Make all payments from any escrow account in a timely
manner, so as
to avoid the assessment of late fees, penalties, or
consequential damages, notwithstanding any loan delinquency,
unless there are insufficient funds in the escrow account to cover
the payments;
(7) Accept and credit each residential mortgage loan payment
received on the date received;
(8) Take all steps necessary to terminate a foreclosure
action when the condition giving rise to action has been fully
cured. Upon cure of a default, the servicer
shall reinstate the
borrower to the same
position as if the
default had not
occurred, and nullify, as of
the date of the
cure, any
acceleration of any obligation under
the residential
mortgage
loan or note arising from the default.
(9) In addition to the duties enumerated in sections 1323.20
to 1323.37 of the Revised Code, any mortgage servicer for a
government-insured loan shall comply with the loss mitigation
standards and guidelines as required by the insuring entity.
(B) When establishing a loan modification solution for a
borrower, a mortgage servicer shall seek to achieve
long-term
sustainability for the borrower and adhere to the loan
modification standards established under section 1323.05 of the
Revised Code.
Sec. 1323.35. No mortgage servicer
shall do any of the
following in connection with a residential
mortgage loan:
(A) Collect, charge, or retain any fee from the borrower
unless the fee is reasonable, for a bona fide service rendered,
and specifically authorized by the residential
mortgage loan and
permitted by law;
(B) Initiate a foreclosure action without proof of ownership
as evidenced by a declaration signed under penalty of perjury,
stating that the party in interest has reviewed the original note
and all subsequent assignments and has
concluded that the party
in interest owns the
note or mortgage;
(C) Fail to provide written notice to the borrower before
acquiring and placing hazard, homeowner's, or flood insurance on a
property or acquiring and
placing such insurance if the mortgage
servicer knows, or has reason
to know, that a policy for such
insurance is in effect;
(D) Acquire and place hazard, homeowner's, or flood insurance
on a property for an amount
that exceeds the greater of the
insurable improvements to the property, the last known coverage
amount that was sufficient to
meet the borrower's insurance
obligations, or the unpaid balance owed by the borrower.
(E) Fail to refund unearned premiums for insurance the
mortgage
servicer or its agents placed upon the borrower,
providing there is reasonable
evidence that the needed coverage
had been obtained, the
forced placement is not necessary, and the
property is
properly insured in accordance with the loan or note.
Sec. 1323.36. (A) No mortgage servicer shall use
unfair,
deceptive or unconscionable means to collect or attempt to
collect any claim in connection with a residential mortgage loan.
Without limiting the general application of the foregoing, the
following actions violate this section:
(1) The collection or the attempt to collect any interest
or
other charge, fee, or expense that is incidental to the principal
obligation, unless expressly authorized by the agreement creating
the
obligation and by law, including division (A) of section
1323.35 of
the Revised Code;
(2) Any communication with a borrower if the mortgage
servicer knows
that the borrower is represented by an attorney and
the attorney's
name and address are known or could be easily
ascertained. This
prohibition does not apply if
the borrower's
attorney fails to
respond within thirty days to answer
correspondence, return phone
calls,
or discuss the obligation in
question, or the
attorney
consents to the servicer having direct
communication with the
borrower;
(3) Placing a telephone call or otherwise communicating by
telephone with a borrower or third party, at any place including
a place of employment, and falsely stating that the call is
"urgent"
or an "emergency";
(4) Using profane or obscene language or language that is
intended to unreasonably abuse the listener or reader;
(5) Placing telephone calls without disclosure of the
caller's identity and with the intent to annoy, harass, or
threaten any person at the number called;
(6) Causing expense to any person in the form of long
distance telephone tolls, text messaging fees, or other charges
the servicer causes by concealing the true
purpose of the
communication;
(7) Causing a telephone to ring or engaging any person in a
telephone conversation repeatedly or continuously, or at unusual
times or times known to be inconvenient, with the intent to
annoy, abuse, oppress, or threaten any person at the called
number.
(B) The requirements set forth in this section are in
addition to any other requirement set forth in federal or state
law regulating the conduct of collection activities, including the
federal fair debt collection practices act, 91 Stat. 874 (1977),
15 U.S.C. sec. 1692 et seq.
Sec. 1323.361. (A) No mortgage servicer, in conducting a
mortgage servicer business, shall engage in any unfair, deceptive
or unconscionable act in violation of Chapter 1345. of the Revised
Code. Any violation of the sections set forth in division (H) of
section 1323.33 or section 1323.34, 1323.35, or 1323.36 of the
Revised Code is an unfair and deceptive act or practice in
violation of section 1345.02 of the Revised Code. The attorney
general may take enforcement action and a borrower may seek
recovery under Chapter 1345. of the Revised Code for the
violations set forth in this division.
(B) A borrower injured by a violation of division (A) of this
section may not recover damages, attorney's fees, and
costs under
Chapter 1345. of the Revised Code if the borrower has recovered
damages in a cause of action initiated
under section 1323.37 of
the Revised Code and the damages sought under
Chapter 1345. of
the Revised Code are based on the same acts or
circumstances as
the damages awarded under section
1323.37 of the Revised Code.
Sec. 1323.37. (A) A borrower injured by a
violation of
sections 1323.20 to 1323.37 of the Revised Code may recover
damages in an amount not less than all improper
charges or fees
paid to the mortgage
servicer, plus reasonable
attorney's fees
and court costs and also may be awarded punitive damages.
(B) Nothing in this section prevents recovery under division
(A)(2) or (C) of section 1323.21. of the Revised Code.
(C) A borrower may not recover damages,attorney's fees, or
costs under this section if the
borrower also recovered damages
in an action
initiated under any section of Chapter 1321. or
1345. of the
Revised Code and the damages so awarded were
based
on the same acts or circumstances as the damages sought under this
section.
Sec. 1323.99. (A) Whoever violates division (A)(1) or (2) of
section 1323.21, or division (F) or (G) of section 1323.33 of the
Revised Code is guilty of a felony of the fifth degree.
(B) Whoever violates section 1323.31 of the Revised Code with
the intent to interfere or obstruct an examination or
investigation is guilty of a felony of the fourth degree.
Sec. 2303.33. (A) No clerk of court shall accept a complaint
to initiate a
foreclosure on a residential mortgage loan unless
the filing
contains a copy of the notice and information
required by
section 1323.02 of the Revised Code. These copies
shall be
filed under seal in connection with the foreclosure,
along with a
certification by the filer that all required notices
and information were provided to the borrower and
the requisite
periods of time have elapsed.
(B) No clerk of courts shall accept a complaint to initiate a
foreclosure on a residential mortgage unless that complaint is
accompanied by the writing described in section 2308.02 of the
Revised Code.
(C) A clerk of court of common pleas or other judicial
officer in this state, may access the mortgage
foreclosure
database established pursuant to section 1323.07 of
the Revised
Code to confirm information provided pursuant to this section. A
materially inaccurate statement in the filer's
certification is
cause for dismissal of the action without prejudice and for
payment by the filing party of costs the borrower incurs in
defending the foreclosure proceeding.
(D) Within three business days after issuing a writ of
execution
in a residential foreclosure action as described in
section
2329.091 of the Revised Code, the clerk of court shall
file information of that action with the administrative
director
of the Ohio supreme court for inclusion in the
foreclosure
database. The filing shall contain the name and
address of the
borrower, the date of the writ, and the name of the
mortgage
servicer or mortgage holder that filed the complaint to
initiate
the foreclosure action.
(E) As used in this section, "residential mortgage,"
"residential mortgage loan," and "mortgage servicer" have the same
meanings as in section
1323.01 of the Revised Code.
Sec. 2308.01. As used in this chapter, "residential
mortgage," "residential mortgage loan," "mortgage servicer" have
the same meanings as in section 1323.01 of the Revised Code.
Sec. 2308.02. (A) No person shall file a complaint to
initiate a residential mortgage foreclosure action unless that
complaint is accompanied by a writing that
contains all of the
following:
(1) A statement setting forth the name of the holder of the
note and asserting that the named holder is the true party in
interest with a right to file the action;
(2) A statement as to whether the mortgage note has been
securitized and if so, the identity of any mortgage-backed
security that holds the loan and the name of the trustee of that
mortgage-backed security;
(3) A statement of the plaintiff's counsel or person
filing
the complaint asserting that the counsel or person filing
the
complaint is the designated representative of the true party
in
interest, is authorized to negotiate on behalf of the plaintiff,
and is not an intermediary representative of the plaintiff;
(4) A statement as to whether the residential property is
occupied and the date that its occupancy status last was assessed;
(5) Evidence that a certified check for fifteen hundred
dollars has been transmitted to the department of commerce as
required under section 1323.11 of the Revised Code, or evidence
that such an amount was transmitted within the past twenty-four
months for a filing with respect to the same property and the same
mortgage loan, or a statement that the fee requirement does not
apply because the property is not occupied at the time of filing.
(B) Any complaint to initiate a residential mortgage
foreclosure
action shall be accompanied by a copy of an
appraisal of the
property, conducted within the prior three
months
by an appraiser
who is certified or licensed pursuant to
Chapter
4763. of the
Revised Code to perform residential
appraisals.
Sec. 2308.03. (A) There is hereby declared a six-month
moratorium on
mortgage foreclosure actions on residential
properties occupied by the owner of the property or the tenant of
that owner, to commence
on the effective date of this section.
(B) During the time of the moratorium, all of the following
apply with respect to mortgage foreclosure actions on occupied
residential
properties:
(1) No court shall hear a complaint for foreclosure or issue
a judgment on such a property.
(2) No clerk of court shall issue a writ of execution on such
a property.
(3) No foreclosed property shall be sold at auction nor shall
any auction be scheduled to conduct such a sale.
(4) No court shall confirm the sale at auction of such a
property.
(C)(1) During the moratorium, a borrower shall make payments
each month in an amount
equal to one-half of the monthly payment
that was in effect at the time the foreclosure action
was filed,
or other amount that the judge determines is just and
equitable.
The payments shall be allocated first
for taxes and insurance if
the borrower's mortgage loan required
such payments into escrow,
then to interest and any remaining amounts to principal. The
borrower shall make the payments to
the mortgage servicer to whom
the borrower made payments at the time the foreclosure action was
filed.
(2) No mortgage servicer shall refuse to accept the payments
that this section describes.
(D)(1) If a borrower fails to make the payments that this
section requires, thirty days after a missed payment, the party
who filed the action may petition the court for the foreclosure
action to resume and that action shall resume as if there were no
moratorium.
(E) At any time during the moratorium, a borrower may
petition the court to request that the foreclosure action on the
borrower's property proceed as if there were no moratorium.
(F) Nothing in this section prevents the granting of a
default judgment when the property is not occupied by the borrower
or the borrower's tenant, when the borrower did not answer the
complaint, or when the borrower without good cause does not appear
at the hearing.
(G) During the time of the moratorium, the borrower shall
make a good faith effort to maintain the property and shall grant
entry to inspect the property to the servicer or other
representative of the servicer or mortgagee, upon a
twenty-four-hour written notice from the servicer.
(H) The moratorium this section provides does not apply to
foreclosures that are filed by credit unions and depository
institutions that service their own mortgage loans, when the
mortgage loan that is being foreclosed is held and serviced by
such a credit union or depository institution.
Sec. 2308.04. (A) For a period of three years after the
effective date of this section, in a residential mortgage
foreclosure action that was filed prior to January 1, 2009, a
judge has discretion to reduce the interest rate of the loan to an
amount the
judge
determines is just and equitable and would
enable the
borrower to make payments and retain the property if
the mortgage is a subprime mortgage loan as defined in section
1323.01 of the Revised Code.
(B) If a reduced interest rate does not lower the loan
payments
to a reasonable amount, the judge may extend the term of
the
mortgage or otherwise reduce the loan payment to a reasonable
amount. The judge shall reduce the loan payment in this manner
only if in consideration of the appraised value of the
property
and other equitable considerations, including a finding
that both
parties would benefit from such a modification, that under all the
circumstances, the modification appears
just and equitable, and
the modification would enable the
borrower to make payments and
retain the property;
(C) Any adjustment in mortgage payments a judge makes
pursuant to this section shall be for not more than five years.
Any difference in the payments the court establishes pursuant to
this section and the payments due pursuant to the mortgage
contract shall be due as a balloon payment at the end of the
modification period. No interest shall accrue on this amount.
During the time of the adjustment, the court shall maintain
jurisdiction over the payments and may modify those payments as
this section permits at any time as conditions merit and upon
petition from the mortgagee.
(D) The director of commerce shall establish in chart form
information that servicers may use to determine if a mortgage loan
is a subprime loan. The chart shall disclose the appropriate
interest rate triggers that determine if a loan is a subprime loan
for each week of the period this section covers. A servicer who
relies on the chart to determine if a loan is a subprime loan may
not be held liable for any violation with respect to that error.
Section 2. Section 2308.03 of the Revised Code is hereby
repealed, effective six months after the effective date of this
act.
Section 3. Section 2308.04 of the Revised Code is hereby
repealed, effective three years after the effective date of this
act.
Section 4. That existing sections 109.572 and 1321.52 of the
Revised Code are hereby repealed.
Section 5. Section 109.572 of the Revised Code is
presented
in
this act as a composite of the section as amended by
Sub. H.B.
195, Sub. H.B. 545, and Sub. S.B. 247, all of
the 127th
General
Assembly. The General Assembly, applying the
principle
stated in
division (B) of section 1.52 of the Revised
Code that
amendments
are to be harmonized if reasonably capable of
simultaneous
operation, finds that the composite is the resulting
version of
the section in effect prior to the effective date of
the section
as presented in this act.
Section 6. The General Assembly enacts sections 2308.03 and
2308.04 of the Revised Code as extraordinary measures necessary to
respond to an emergency situation created by the mortgage
foreclosure crisis in this state. The high rate of residential
mortgage foreclosures is proving harmful to families, lenders, and
communities alike. The purpose of enacting these sections is to
mitigate the very negative impact of the current situation and to
preserve property values by providing time for solutions to begin
to have an impact. These solutions that need time to be effective
include modifying loans in a manner beneficial to all parties
concerned and implementing federal and state initiatives that
provide assistance and guidance to homeowners, lenders, and
communities.
Section 7. Sections 1323.20 to 1323.37 and section 2303.33 of
the Revised Code take effect six months after the effective date
of this act. During that six month period, the Superintendent of
Financial Institutions of the Department of Commerce may take
applications for registration as a mortgage servicer as the
delayed sections provide and otherwise process the applications.
When the delayed sections become effective, the superintendent may
approve such registrations and issue certificates of registration.
Section 8. This act is hereby declared to be an emergency
measure necessary for the immediate preservation of the public
peace, health, and safety. The reason for such necessity is the
alarming rate of
increase in mortgage foreclosures, with
devastating impact on homeowners and communities
alike, making
immediate intervention and assistance necessary to
allow owners
an opportunity to explore alternatives and resolve
problems so
that they keep their homes and to halt and reverse the
negative
impact of vacant and foreclosed homes on the health and
safety of
communities. Therefore, this
act shall go into
immediate effect.
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