645B.185 - Use of disclosure forms required; release of financial statements; duties of mortgage broker and agents; prohibitions; powers of Commissioner; regulations.
645B.185 Use of disclosure forms required; release of financial statements; duties of mortgage broker and agents; prohibitions; powers of Commissioner; regulations.
1. A mortgage broker or mortgage agent shall not accept money from a private investor to acquire ownership of or a beneficial interest in a loan secured by a lien on real property unless:
(a) The private investor and the mortgage broker or mortgage agent sign and date a disclosure form that complies with the provisions of this section; and
(b) The mortgage broker or mortgage agent gives the private investor the original disclosure form that has been signed and dated.
2. A private investor and a mortgage broker or mortgage agent must sign and date a separate disclosure form pursuant to subsection 1 for each loan in which the private investor invests his or her money. A mortgage broker or mortgage agent shall not act as the attorney-in-fact or the agent of a private investor with respect to the signing or dating of any disclosure form.
3. In addition to the requirements of subsections 1 and 2, a mortgage broker or mortgage agent shall not accept money from a private investor to acquire ownership of or a beneficial interest in a loan secured by a lien on real property, unless the mortgage broker or mortgage agent gives the private investor a written form by which the private investor may request that the mortgage broker authorize the Commissioner to release the mortgage broker’s financial statement to the private investor. Such a form must be given to the private investor for each loan. If the private investor, before giving money to the mortgage broker for the loan, requests that the mortgage broker authorize the release of a financial statement pursuant to this subsection, the mortgage broker and his or her mortgage agents shall not accept money from the private investor for that loan until the mortgage broker receives notice from the Commissioner that the financial statement has been released to the private investor.
4. A private investor and a mortgage broker or mortgage agent may not agree to alter or waive the provisions of this section by contract or other agreement. Any such contract or agreement is void and must not be given effect to the extent that it violates the provisions of this section.
5. A mortgage broker shall retain a copy of each disclosure form that is signed and dated pursuant to subsection 1 for the period that is prescribed in the regulations adopted by the Commissioner.
6. The standard provisions for each such disclosure form must include, without limitation, statements:
(a) Explaining the risks of investing through the mortgage broker, including, without limitation:
(1) The possibility that the debtor may default on the loan;
(2) The nature of the losses that may result through foreclosure;
(3) The fact that payments of principal and interest are not guaranteed and that the private investor may lose the entire amount of principal that he or she has invested;
(4) The fact that the mortgage broker is not a depository financial institution and that the investment is not insured by any depository insurance and is not otherwise insured or guaranteed by the Federal or State Government; and
(5) Any other information required pursuant to the regulations adopted by the Commissioner; and
(b) Disclosing to the private investor the following information if the information is known or, in light of all the surrounding facts and circumstances, reasonably should be known to the mortgage broker:
(1) Whether the real property that will secure the loan is encumbered by any other liens and, if so, the priority of each such lien, the amount of debt secured by each such lien and the current status of that debt, including, without limitation, whether the debt is being paid or is in default;
(2) Whether the mortgage broker or any general partner, officer, director or mortgage agent of the mortgage broker has any direct or indirect interest in the debtor;
(3) Whether any disciplinary action has been taken by the Commissioner against the mortgage broker or any general partner, officer or director of the mortgage broker within the immediately preceding 12 months, and the nature of any such disciplinary action;
(4) Whether the mortgage broker or any general partner, officer or director of the mortgage broker has been convicted within the immediately preceding 12 months for violating any law, ordinance or regulation that involves fraud, misrepresentation or a deceitful, fraudulent or dishonest business practice; and
(5) Any other information required pursuant to the regulations adopted by the Commissioner.
7. Whether or not a mortgage broker is required to disclose any information to private investors through a disclosure form that complies with the provisions of this section, the Commissioner may order the mortgage broker to disclose to private investors and other investors or to the general public any information concerning the mortgage broker, any general partner, officer, director or mortgage agent of the mortgage broker or any loan in which the mortgage broker is or has been involved, if the Commissioner, in his or her judgment, believes that the information:
(a) Would be of material interest to a reasonable investor who is deciding whether to invest money with the mortgage broker; or
(b) Is necessary to protect the welfare of the public.
8. In carrying out the provisions of subsection 7, the Commissioner may, without limitation, order a mortgage broker to include statements of disclosure prescribed by the Commissioner:
(a) In the disclosure form that must be given to private investors pursuant to subsection 1;
(b) In additional disclosure forms that must be given to private investors and other investors before or after they have invested money through the mortgage broker; or
(c) In any advertisement that the mortgage broker uses in carrying on his or her business.
9. The Commissioner:
(a) Shall adopt regulations prescribing the period for which a mortgage broker must retain a copy of each disclosure form that is given to private investors; and
(b) May adopt any other regulations that are necessary to carry out the provisions of this section, including, without limitation, regulations specifying the size of print and any required formatting or typesetting that a mortgage broker must use in any form that is given to private investors.
(Added to NRS by 1985, 2185; A 1987, 1886; 1999, 3796; 2001, 2468)