Mortgage Concepts is a recurring video series on best practices and compliance education for California lenders. This video discusses the record-keeping rules for mortgage lenders (MLOs) under Regulation O. For course credit for renewing your NMLS license, visit firsttuesday.us.

Regulations O archiving

Mortgage lenders must maintain records as proof of compliance. Control off determines which compliance vendors must maintain. Providers can store the data in the same way, format and location as other documentation used in normal business operations. [12 CFR §1015.9(c-d)]

Required records must be kept for 24 months, beginning on the document creation date. Let’s take a look at Regulation O’s required records. Mortgage counselors must keep:

  • all (other) agreements between the provider and the consumer for mortgage assistance;
  • copies of all textual communication between the provider and the consumer that took place before the consumer entered into a assistance agreement;
  • copies of any documents or telephone recordings made to comply with the requirement to monitor employees and contractors representing the service provider;
  • all consumer records containing the names, phone numbers, dollar amounts paid, and descriptions of mortgage assistance purchased;
  • copies of any materially different sales scripts, training materials, commercial communications or other marketing materials, including websites, for any mortgage assistance; and
  • copies of the documentation that the provider has given to the consumer when concluding an agreement between him and the mortgagee or administrator who integrates the offer of the compensation. [12 CFR §1015.5(a); 12 CFR §1015.9(a); 12 CFR §1015.9(b)(1)(i)]

In addition, compliant providers will take reasonable steps to monitor and ensure that all employees and independent contractors comply with Regulation O. Compliance checks include evaluations of telemarketing practices, including plans, programs, or campaigns used to encourage consumers to purchase services by using one or more telephones and involving more than one interstate telephone call. These steps include at a minimum:

  • arbitrary performance checks by individuals engaged in telemarketing sales or customer service;
  • establishing guidelines for receiving and responding to customer complaints; and
  • determining the number and content of consumer complaints. Service providers must deal with those complaints by:
    • starting a quick and thorough investigation;
    • disciplining, training, or firing employees or contractors who fail to comply with regulation O; and
    • retaining evidence that the complaint has been received and answered. [12 CFR §1015.2; 12 CFR §1015.9(b)]

Note that lawyers are exempt from all requirements of Regulation O, except the prohibition on advances and the disclosure of advances, if they:

  • offer mortgage assistance as part of their law practice;
  • have a license to practice as a lawyer in the state in which the consumer for whom the lawyer provides the mortgage assistance lives or where the consumer’s home is located; and
  • Comply with all state laws and regulations, including licensing rules, that apply to customer trust accounts. [12 CFR §1015.7(a)]

Attorneys who meet Regulation O exemption qualifications may also be exempt from the advances ban if the attorneys deposit funds received from consumers before providing legal services to a client account and comply with all state laws and regulations , including licensing regulations, related to customer trust accounts. [12 CFR §1015.7(b)]

Client trust accounts, which are separate accounts, are created by licensed attorneys for the purpose of holding client funds. The bill must be:

  • kept in accordance with all relevant state laws and regulations, including licensing regulations; and
  • located in the same state as the law firm or elsewhere if the location is in the United States and approved by the consumer whose funds are in the account. [12 CFR §1015.7]

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