Response by the Canadian Institute of Mortgage Brokers and Lenders (CIMBL) to

Transcription

1 Response by the Canadian Institute of Mortgage Brokers and Lenders (CIMBL) to A Consultation Draft of Regulations under Bill 65 - Mortgage Brokerages, Lenders and Administrators Act 2006 Ontario Ministry of Finance January 2007

2 2 Page 10 Simple Referrals In the fall of 2005, CIMBL forwarded its position on simple referrals. We stated that a name, address, telephone number, business card or contact information can be forwarded to a licensed mortgage broker or agent, but filing out a mortgage application form, undertaking credit checks or compiling any type of financial information from a borrower is considered to be mortgage brokering activity. The regulations propose that these activities would have to be licensed. CIMBL seeks clarification on the current wording of the regulation. Our reading suggests that the simple referral would apply to lenders only. CIMBL strongly recommends that section 1 be amended to read A person or entity that refers a prospective borrower to a perspective mortgage lender or mortgage broker or agent, is We believe that this clause should clearly apply to mortgage brokers and agents. In discussions with ministry staff we believe this is the intent of the government. CIMBL believes that simple referrals should be determined by type of activity. CIMBL supports mortgage brokers or agents providing mandatory disclosure in writing to the borrower that they received a fee for providing the simple referral. We are pleased that the draft regulation closely mirrors CIMBL s stated position, minus the exclusion of mortgage brokers and agents. With this change, CIMBL believes that the definition of simple referral is workable and protects the borrower while raising the overall bar of professionalism. CIMBL would not support any further weakening of this provision that would expand the definition of activity allowed under the simple referral exemption. Section 2, covers lender referrals to borrowers. CIMBL would like to receive clarification on circumstances in which this activity would occur. A concern is to ensure that the borrower is protected, as some lenders may not be covered by the Act. Page 11 - Lawyers Similar to the issue of simple referral, is the proposed exemption for lawyers. Our reading of the draft regulation suggests that as long as the lawyer does not hold himself/herself out to be a mortgage broker or agent or undertakes those activities described in Sections 2 and 3 of the draft regulations then they are exempt. CIMBL does not object to professional capacity being exempted, but believes that the regulator should monitor this activity in a robust manner to ensure that the spirit of the exemption is followed. Page 14 Acting for Financial Institution When other provincial jurisdictions have reviewed this issue and sought input, CIMBL has stated that federally regulated financial institutions should be exempt from licensing so long as the individual is located in the branches of the regulated institutions. The province will be aware that there are individuals who are not located in branches, but who

3 3 undertake mortgage activity by placing mortgages with borrowers. These individuals are often referred to as a mobile mortgage sales force or mortgage specialists and may place a mortgage product with someone other than their employer. In these situations, CIMBL has taken the position that this activity constitutes mortgage brokering activity and individuals should be licensed. This is the policy to be followed by the Alberta government when it introduces changes to the Real Estate Act, and one that is also being followed by the regulator in Québec. Section 15 states that those working for a financial institution are exempt from a mortgage administrator s license. Section 6 (3) of the Act states A director, officer, or employee of a financial institution is exempted from the requirements of section 2 and 3 to have a mortgage broker s or agent s license when, in the ordinary course of his or her duties, the individual deals in or trades in mortgages on behalf of the financial institution. CIMBL would seek clarification as to what on behalf of the financial institution means. Our stated position is that if an employee places a mortgage product with someone who is not their employer than they are undertaking brokering activity and should be licensed. The definition of financial institution should not include insurance brokers or agents, financial planners or security representatives. Page 15 Eligibility to be licensed CIMBL strongly supports the need for mandatory Errors & Omission insurance coverage for mortgage brokerages. CIMBL supports the thresholds that are contemplated in section 2 (3) and believes that this will raise the overall standard of the industry, while protecting both the mortgage professional and the broader public. We do, however, believe the definition of fraudulent acts needs to be clearly defined. CIMBL would suggest that section 2 (2) be deleted. In other words, that all firms applying for a brokerage license even before the effective date have Errors & Omission insurance coverage as this is the clear intent of the new legislation. The Superintendent of FSCO (Financial Services Commission of Ontario) should not have the ability to waive this requirement even on an interim basis. Mortgage brokerage firms have a unique financial structure in that the natural operating working capital position, when cash is excluded from the calculation, is to have a deficit since a brokerage firm typically collects commissions prior to distributing payments to its agents. This allows a firm to grow rapidly without significant capital and to survive a period of loses. Firms operating in this manner are therefore vulnerable to sudden changes in the marketplace with potential for inconvenience to the public. In addition, CIMBL is of the view the industry should be structured in a manner that reduces the likelihood of fraud. In a company operating with little capital and financial stress, the motive and opportunity for fraud are all greater risk factors.

4 4 For both the protection of the public and to combat fraud, CIMBL would recommend that the province implement a minimum capital requirement for mortgage brokerage firms of at least $25,000 at all times the business is being operated similar to the threshold recommended in the draft regulations for mortgage administrators, which CIMBL supports. We believe that brokerage firms should have some minimum capital requirements or financial responsibility to support their business activity. Page 18 (and Page 35) Licensed Names and Advertising The regulations suggest that the brokerage firm must be licensed under its legal name or another name that is has registered under the Business Names Act. The advertising sections of the regulations suggest likewise, that advertising has to refer to these names. CIMBL supports for the purposes of enforcement and consumer protection, the need for clear rules when selecting a business name or advertising that name. We understand that FSCO is actively enforcing such measures. CIMBL would recommend that when advertising the brokerage name is clearly identified in all promotional materials including websites. CIMBL also supports mandating the use of the license number by mortgage brokers and agents when advertising. We believe such measures should be practical, but that they would benefit the enforcement activities of the regulator and the broader public. Page 19 25, Licensing CIMBL wishes to restate its position on education requirements under the new Mortgage Brokerages and Lenders Act. While we are engaged in the parallel education review process, we wish to note our support for: A common exam for both brokers and agents. If the intended result of the new legislation is to raise the overall bar and enhance consumer protection than those engaged in the industry must be tested on the same materials; A common set of course materials, including textbook, which the common exam is based upon. CIMBL supports multiple delivers of education programs, but believes that the integrity of the materials taught and tested must be enhanced; In addition, CIMBL has forwarded to FSCO a copy of our proficiency exam and material. We have requested acceptance by FSCO of this course to serve as a requirement for the new agent s license. We are ready and able to deliver this course with instructor as soon as we receive approval from FSCO. CIMBL believes that the transition provisions under the draft regulations are very generous. If one has been a mortgage agent for 24 of the 36 months prior to the effective date of the legislation than no education requirements are necessary. CIMBL is concerned that individuals who would like to practice as either a mortgage broker or agent are taking advantage of this provision including those who will no longer be deemed under the provisions of the new legislation. We believe there should be some cut off to ensure the transition rules are not abused.

5 5 Likewise on the brokerage side if one has been an officer or director of a company registered under current legislation than one is exempt from any new education requirements. CIMBL recommends that these provisions be re-examined to ensure at least some minimum education requirement such as the aforementioned proficiency exam. Page 22 Licensing (Continuing Education) (Section 8) CIMBL, as noted in previous correspondence supports mandating continuing education in order to maintain a broker or agent s license in Ontario. Alberta currently requires continuing education as part of its licensing process. This speaks again to raising the bar and ensuring that mortgage professionals are on top of timely issues and subjects. Page 22 Licensing (Section 9) The regulations provide the Superintendent of FSCO with a wide scope of discretion in determining if past conduct disqualifies someone from a license. CIMBL recommends that this section be clarified by including specific types of conduct or potential grounds that would preclude the granting of a license. CIMBL would support the establishment of an Implementation Working Group that would look at issues such as this that would provide input into standards that should be developed. Page 30 Compliance CIMBL notes that there are differences in wording for compliance among a principal broker and a broker. For example a principal broker must take reasonable steps to ensure, while the brokerage shall ensure compliance. Likewise a principal broker s duties relate to every requirement established under the Act in contrast to a brokerages duty that relates to the applicable requirements established under this Act. Are these compliance standards meant to be different? It may well be appropriate that a higher standard of care should be placed on the brokerage than the principal broker. CIMBL would also seek clarification on whether reporting a contravention would come under reasonable steps. The regulations should not lead to a situation where a brokerage deals with a contravention, but does not report it, and the principal is then subject to an administrative order. Page 33 Business Day There was discussion at the technical briefing provided by the Ministry of Finance on the subject of what constitutes a business day. Under the Interpretations Act Saturday is included as a holiday as are all statutory holidays. CIMBL would request clarification

6 6 that Sundays would not count as a business day for issues such as minimum disclosure periods under the Act. Page 35 Advertisements As noted previously, CIMBL supports the need to clearly identify the name of the brokerage firm when advertising. CIMBL would seek clarification from the government or FSCO on section 3 (3) under advertisements and seek a policy or guideline on what might constitute a false, misleading or deceptive statement. This is fairly broad language. Page 36 Misrepresentation Under section 5 (c) CIMBL would request that the Ministry of Finance or FSCO provide clarification on what constitutes unduly pressure a borrower, lender or investor. The term is vague and criteria should be developed under which circumstances it would be applied. This section raises serious questions as to whether a borrower may be able to rescind a mortgage transaction. Similar to rules or guidelines on advertising defining what constitutes undue pressure, this section should also be on the agenda for the proposed Implementation Working Group. Page 37 Suitability Again CIMBL recommends criteria be developed to determine whether a broker or agent is no longer suitable to be licensed under section 10 (2). The regulations should provide more detail concerning the types of conduct or activities that a brokerage should report to the regulator under this section. Page 38 Complaints Process While the regulations are clear on the roles and responsibilities of the brokerage in terms of dealing with public complaints it remains silent on the responsibilities of the regulator. Will FSCO develop a set of standards or guidelines on how they will deal with complaints from the public? Page 39 - General Standards of Practice CIMBL is a strong supporter of enhanced disclosure of remuneration and conflict of interest situations by the mortgage professional to the borrower. That is why last year we established a special Task Force on the issue and developed a separate disclosure form that we forwarded to all regulators in the country including the Ontario Ministry of Finance and to FSCO. You will be interested to know that recently the regulator in Alberta, RECA, adopted a very similar form for enhanced disclosure in that province. (A copy is attached).

7 7 We therefore approach the subject of disclosure with a positive mind believing it is an integral part of enhanced consumer protection and raising the bar of professionalism in the industry. However, for such disclosure to be effective it must be practical, understandable and relevant. Under section 18 (a) CIMBL would seek clarification from the government on what types of material it envisages a broker or agent provide to a borrower to determine if the mortgage is suitable to their circumstances. Mortgage products are often a personal choice dependent upon a borrower s comfort level. It is not something that can be easily legislated. Under Section 20, CIMBL supports the continuance of not allowing fees for a mortgage under $300,000. However, if the mortgage broker or agent can demonstrate out of pocket expenses for services that have been rendered by an unaffiliated entity e.g. an appraisal or survey, prior to the signing of the mortgage instrument than this should be allowed. Section 20 should be amended so that a brokerage can accept fees for services that have been rendered. As discussed at the technical briefing, CIMBL would recommend that reference to a commitment in section 20 (1) (a) be deleted and that 20 (1) (b), a mortgage instrument be maintained. Page 40 Section 22 CIMBL recommends that this section be clarified. Our reading of this clause is that a brokerage can still pay another brokerage, but not a broker or agent. If this is the case than the title of the clause should be changed. Page 40 Section 25 A technical point, the regulations should clarify that the brokerage may retain copies of a document for the purpose of complying with regulatory requirements. Page 40 Use of Forms The subject of forms, section 26, is important as the draft regulations include several new disclosure requirements. If the government intends to increase consumer protection by way of disclosure than it should be clear how that is communicated. If there are no standard forms than the regulations are totally open to interpretation and the goal of enhanced disclosure may not be met. In a recent example affecting the mortgage industry in British Columbia the lack of a standard form brought confusion. CIMBL believes that the Superintendent of FSCO must endorse certain forms. While these forms may be developed independently e.g. by CIMBL, there should be some recognition on the part of the regulator that they have standing. CIMBL would be glad to work with the government and regulator in developing and finalizing these forms.

8 8 Page 41 Verification CIMBL supports the approach taken in section 27 of using performance type language and reasonable steps. CIMBL restates that many professions are involved in completing a real estate transaction and that currently in Ontario a lawyer has a professional responsibility to verify identity at closing. Page 43 Lender Percentages As noted at the technical briefing, CIMBL believes section 33 is too drastic and ultimately unworkable. CIMBL s aforementioned disclosure form, adopted by Alberta asks a broker or agent to address this important issue by listing a range in the number of lenders that are dealt with. We believe that it is difficult to determine percentages as they can vary considerably even in a short timeframe. We recommend that subsection (b) be deleted while the wording in subsection (c) is modified to provide a range of lenders. Subsections (a) and (d) would be retained. Page 43 Reverse Mortgages Under section 34, CIMBL supports the need for Independent Legal Advice when entering into a reverse mortgage. Page 50 Rules re: disclosure Under section 45, the term cannot be known implies that a brokerage must take all steps necessary to know the information before basing a disclosure on an estimate. CIMBL would suggest the wording cannot reasonably be known be substituted. Page 56 Section 59 Record Keeping CIMBL believes that section 59 (3) should be changed to for at least six years after origination instead of maturity of the mortgage.