Section 56.204 - Books and Records(a) Purpose and Applicability. This section clarifies and establishes requirements related to the books and records a mortgage company and its sponsored originators are required to keep under Finance Code §156.301. Subsection (c) of this section applies to a mortgage company and its sponsored originators in connection with the origination of residential mortgage loans. Subsection (d) of this section applies to a mortgage company and its sponsored originators in connection with the provision of third-party loan processing or underwriting services (including independent loan processor or underwriter companies). (b) Maintenance of Records, Generally. In order to ensure a mortgage company and its sponsored originators have all records necessary to facilitate an inspection (including an examination) by SML of the mortgage company and its sponsored originators, enable SML to investigate complaints against a mortgage company or its sponsored originators, and otherwise ensure compliance with the requirements of Finance Code Chapter 156, and this chapter, a mortgage company and its sponsored originators must maintain records as prescribed by this section. (1) Format. The records required by this section may be maintained using a physical, electronic, or digitally-imaged recordkeeping system, or a combination thereof. The records must be accurate, complete, current, legible, and readily accessible and sortable.(2) Location. A mortgage company and its sponsored originators must ensure the records required by this section (or true and correct copies thereof) are maintained at or are otherwise readily accessible from either the main office of the mortgage company or the location the mortgage company has designated in its MU1 filing under "Books and Records Information" in NMLS. (For purposes of this section "main office" has the meaning assigned by §56.206 of this title (relating to Office Locations; Remote Work.)(3) Production of Records; Disciplinary Action. All records required by this section must be maintained in good order and produced to SML upon request. Failure by a mortgage company or its sponsored originators to produce records upon request after a reasonable time for compliance may result in disciplinary action against the mortgage company or its sponsored originators, including, but not limited to, suspension or revocation of the mortgage company's or sponsored originator's license.(4) Retention Period. All records required by this section must be maintained for 3 years or such longer period as may be required by other applicable law. If a mortgage company terminates operations, the mortgage company must, within 10 days after the date the mortgage company terminates operations, provide SML with written notice of where the records required by this section will be maintained for the required period. If such records are transferred to another mortgage company licensed by SML, the transferee must provide SML with written notice within 10 days after the date it receives such records.(5) Maintenance by the Mortgage Company. A mortgage company is required to maintain records on behalf of the originators it sponsors in connection with work performed by the originator for that mortgage company.(6) Conflicting Law. If the requirements of other applicable law governing recordkeeping by the mortgage company or its sponsored originators differ from the requirements of this section, such other applicable law prevails only to the extent this section conflicts with the requirements of this section.(c) Required Records (Origination). A mortgage company and its sponsored originators must maintain the following items in connection with the origination of residential mortgage loans by the mortgage company: (1) Mortgage Transaction Log. A mortgage transaction log maintained on a current basis (meaning all entries must be made within 7 days after the date on which the events they relate to occurred, and updated as the information changes) setting forth, at a minimum (the log may include additional information, provided, the information is readily sortable as required by subsection (b)(1) of this section): (A) full name of each mortgage applicant (last name, first name);(B) application/loan identification number assigned by the mortgage company; (C) loan identification number assigned by the lender, if different than subparagraph (B) of this paragraph; (D) date of the initial loan application;(E) address of the subject property (street address, city, state, zip code);(G) description of the purpose for the loan (e.g., purchase, refinance, construction, home equity, home improvement, land lot loan, wrap mortgage loan, etc.);(H) loan product (conventional, FHA, VA, reverse, etc.);(I) full name of the lender that initially funded or acquired the loan and their NMLS ID, if applicable;(J) full name of the originator who took the initial loan application and his or her NMLS ID; (L) lien position (e.g., first lien, second lien, or wrap mortgage);(M) description of the owner's or prospective owner's intended occupancy of the real estate secured or designed to be secured by the loan (e.g., primary residence (including real estate (land lot) or a dwelling not suitable for occupancy at the time the loan is consummated but that the owner intends to occupy as their primary residence after consummation of the loan), secondary residence, or investment property (no intent to occupy as their residence)); and(N) description of the current status or disposition of the loan application (e.g., in-process, withdrawn, closed, or denied);(2) Residential Mortgage Loan File. For each residential mortgage loan transaction or prospective residential mortgage loan transaction, a residential mortgage loan file containing, at a minimum: (A) All Transactions. For all transactions, the following records: (i) the initial and any final loan application (including any attachments, supplements, or addendum thereto), signed and dated by each mortgage applicant and the sponsored originator, and any other written or recorded information used in evaluating the application, as required by Regulation B (12 C.F.R. § 1002.4(c));(ii) the initial and any revised good faith estimate (Regulation X, 12 C.F.R. § 1024.7), integrated loan estimate disclosure (Regulation Z, 12 C.F.R. § 1026.37), or similar, provided to the mortgage applicant;(iii) the final settlement statement (Regulation X, 12 C.F.R § 1024.8), closing statement, or integrated closing disclosure (Regulation Z, 12 C.F.R. § 1026.19(f) and § 1026.38);(iv) the disclosure required by Finance Code §156.004 and §56.200(b) of this title (relating to Required Disclosures), and records reflecting timely delivery of the disclosure to the mortgage applicant;(v) if provided to a mortgage applicant or prospective mortgage applicant, the conditional pre-qualification letter, or similar, as specified by Finance Code §156.105 and §56.201 of this title (relating to Conditional Pre-Qualification and Conditional Approval Letters);(vi) if provided to a mortgage applicant or prospective mortgage applicant, the conditional approval letter, or similar, as specified by Finance Code §156.105 and §56.201 of this title; (vii) each item of correspondence, all evidence of any contractual agreement or understanding, and all notes and memoranda of conversations or meetings with a mortgage applicant or any other party in connection with the loan application or its ultimate disposition (e.g., fee agreements, rate lock agreements, or similar documents);(viii) if the loan is a "home loan" as defined by Finance Code §343.001, the notice of penalties for making a false or misleading written statement required by Finance Code §343.105, signed at closing by each mortgage applicant;(ix) if the transaction is a purchase money or wrap mortgage loan transaction, the real estate sales contract or real estate purchase agreement for the sale of the residential real estate; (x) consumer reports or credit reports obtained in connection with the residential mortgage loan or prospective residential mortgage loan, and if a fee is paid by or imposed on the mortgage applicant for such consumer report or credit report, invoices and proof of payment for the purchase of the consumer report or credit report; (xi) appraisal reports or written valuation reports used to determine the value of the residential real estate secured or designed to be secured by the loan, and if a fee is paid by or imposed on the mortgage applicant for such appraisal report or written valuation report, invoices and proof of payment for the appraisal report or written valuation report;(xii) invoices and proof of payment for any third-party fees paid by or imposed on the mortgage applicant;(xiii) refund checks issued to the mortgage applicant;(xiv) if applicable, the risk-based pricing notice required by Regulation V (12 C.F.R. § 1022.72); (xv) if applicable, invoices for independent loan processors or underwriters;(xvi) if the mortgage company or sponsored originator acts in a dual capacity as the loan originator and real estate broker, sales agent, or attorney in the transaction, the disclosure of multiple roles in a consumer real estate transaction, signed and dated by each mortgage applicant, as required by Finance Code §156.303(a)(13) and §157.024(a)(10);(xvii) the initial privacy notice required by Regulation P (12 C.F.R. § 1016.4) or the Federal Trade Commission's Privacy of Consumer Financial Information rules (16 C.F.R. § 313.4);(xviii) the mortgage applicant's written authorization to receive electronic documents, as required by the E-Sign Act and Regulation Z (12 C.F.R. § 1026.17(a)(1)); (xix) records reflecting compensation paid to employees or independent contractors in connection with the transaction;(xx) any other agreements, notices, disclosures, or affidavits required by federal or state law in connection with the transaction; and(xxi) any written agreements or other records governing the origination of the residential mortgage loan or prospective residential mortgage loan;(B) Lender Transactions. For transactions where the mortgage company made the loan (lender), the following records: (i) the promissory note, loan agreement, or repayment agreement, signed by the borrower (mortgage applicant);(ii) the recorded deed of trust, contract, security deed, security instrument, or other lien transfer document, signed by the borrower (mortgage applicant);(iii) any verifications of income, employment, or deposits obtained in connection with the loan;(iv) copies of any title insurance policies with endorsements or title search reports obtained in connection with the loan, and if a fee is paid by or imposed on the mortgage applicant for such title insurance policies or title search reports, invoices and proof of payment for the title insurance policy or title search report; and(v) if applicable, the flood determination certificate obtained in connection with the loan, and if a fee is paid by or imposed on the mortgage applicant for such flood certificate, invoices and proof of payment for the flood determination certificate;(C) Truth in Lending Act (TILA). For transactions that are subject to the requirements of TILA (15 U.S.C. § 1601 et seq.) and Regulation Z (12 C.F.R. § 1026.1 et seq.), the following records: (i) the initial Truth-in-Lending statement for home equity line of credit and reverse mortgage transactions required by Regulation Z (12 C.F.R. § 1026.19);(ii) if the transaction is an adjustable rate mortgage transaction, the adjustable rate mortgage program disclosures; (iii) records relating to the mortgage applicant's ability to repay the loan, as required by Regulation Z (12 C.F.R. § 1026.43(c));(iv) if the mortgage applicant is permitted to shop for a settlement service, the written list of providers required by Regulation Z (12 C.F.R. § 1026.19(e)(1)(vi)(C)); (v) the notice of intent to proceed with the transaction required by Regulation Z (12 C.F.R. § 1026.19(e)(2)(i)(A)); (vi) if applicable, records related to a changed circumstance required by Regulation Z (12 C.F.R. § 1026.19(e)(3)(iv)); (vii) the notice of right to rescission required by Regulation Z (12 C.F.R. § 1026.15 or § 1026.23);(viii) for high-cost mortgage loans, the disclosures required by Regulation Z (12 C.F.R. § 1026.32(c));(ix) for high-cost mortgage loans, the certification of counseling required by Regulation Z (12 C.F.R. § 1026.34(a)(5)(i)); (x) for home equity line of credit transactions: (I) the account-opening disclosure required by Regulation Z (12 C.F.R. § 1026.6(a));(II) the early disclosure statement required by Regulation Z (12 C.F.R. § 1026.40(d)); (III) the Home Equity Line of Credit Brochure required by Regulation Z (12 C.F.R. § 1026.40(e)); and(xi) any other notice or disclosure required by TILA or Regulation Z;(D) Real Estate Settlement Procedures Act (RESPA). For transactions that are subject to the requirements of RESPA (12 U.S.C. § 2601 et seq.) and Regulation X (12 C.F.R. § 1024.1 et seq.), the following records: (i) records reflecting delivery of the special information booklet required by Regulation X (12 C.F.R. § 1024.6);(ii) any affiliated business arrangement disclosure statement provided to the mortgage applicant in accordance with Regulation X (12 C.F.R. § 1024.15);(iii) records reflecting delivery of the list of homeownership counseling organizations required by Regulation X (12 C.F.R. § 1024.20); and(iv) any other notice or disclosure required by RESPA or Regulation X;(E) Equal Credit Opportunity Act - Transactions Not Resulting in Approval. For residential mortgage loan applications where a notice of incompleteness is issued, a counteroffer is made, or adverse action is taken, as provided by Regulation B (12 C.F.R. § 1002.1 et seq.), the following records, as applicable: (i) the notice of incompleteness required by Regulation B (12 C.F.R. § 1002.9(c)(2)); (ii) the counteroffer letter sent to the mortgage applicant in accordance with Regulation B (12 C.F.R. § 1002.9); and(iii) the adverse action notification (a/k/a turndown letter) required by Regulation B (12 C.F.R. § 1002.9(a));(F) Home Equity Transactions. For home equity loan transactions or home equity line of credit transactions, the following records (references in this subparagraph to Section 50 refer to Article XVI, Section 50, Texas Constitution; see also subparagraph (C)(x) of this paragraph): (i) the preclosing disclosures required by Section 50(a)(6)(M)(ii) and § 153.13 of this title (relating to Preclosing Disclosures: Section 50(a)(6)(M)(ii); as provided by such section, the closing disclosure or account-opening disclosures required by Regulation Z fulfills this requirement);(ii) the consumer disclosure required by Section 50(g) and §153.51 of this tile (relating to Consumer Disclosure: Section 50(g));(iii) if an attorney-in-fact executes the closing documents on behalf of the owner or owner's spouse, a copy of the executed power of attorney and any other documents evidencing execution of such power of attorney at the permanent physical address of an office of the lender, an attorney at law, or a title company, as required by § 153.15 of this title (relating to Location of Closing: Section 50(a)(6)(N));(iv) if the borrower (mortgage applicant) uses the proceeds of the loan to pay off a non-homestead debt with the same lender, a written statement, signed by the mortgage applicant, indicating the proceeds of the home equity loan were voluntarily used to pay such debt (see Section 50(a)(6)(Q)(i));(v) notice of the right of rescission, as required by Section 50(a)(6)(Q)(viii) (as provided by § 153.25 of this title (relating to Right of Rescission: Section 50(a)(6)(Q)(viii)), the notice of right of rescission required by TILA and Regulation Z fulfills this requirement); (vi) the written acknowledgement as to the fair market value of the homestead property, as required by Section 50(a)(6)(Q)(ix) and § 153.26 of this title (relating to Acknowledgement of Fair Market Value: Section 50(a)(6)(Q)(ix));(vii) any discount point acknowledgement form used by the lender to substantiate that the discount points are bona fide as required by § 153.5 of this title (relating to Two Percent Fee Limitation: Section 50(a)(6)(E));(viii) the Texas Home Equity Affidavit and Agreement (Fannie Mae Form 3185), or similar;(ix) for home equity line of credit transactions, the Texas Home Equity Line of Credit Agreement or repayment agreement;(x) if the home equity loan is refinanced into a non-home equity loan, the Texas Notice Concerning Refinance of Existing Home Equity to Non-Home Equity Loan, as required by Section 50(f)(2)(D) and § 153.45 of this title (relating to Refinance of an Equity Loan: Section 50(f));(G) Wrap Mortgage Loans. For wrap mortgage loan transactions subject to the requirements of Finance Code Chapter 159, the following records: (i) the disclosure statement required by Finance Code §159.101 and § 78.101 of this title (relating to Required Disclosure), signed and dated by each mortgage applicant, and any foreign language disclosure statement required by Finance Code §159.102; (ii) the disclosure statement required by Property Code §5.016, provided to each existing lienholder (the disclosure statement required by Finance Code §159.101 and § 78.101 of this title (relating to Required Disclosure) referenced in clause (i) of this subparagraph fulfills this requirement if it was provided to each existing lienholder); and (iii) documents evidencing that the wrap mortgage loan was closed by an attorney or a title company, as required by Finance Code §159.105;(H) Home Improvement Loans. For home improvement transactions (including repair, renovation, and new construction), the following records: (i) the mechanic's lien contract;(ii) documents evidencing the transfer of lien from the contractor to the lender;(iii) the residential construction contract; (iv) notice of the right of rescission required by Section 50(a)(5)(C) (the notice of right of rescission required by TILA and Regulation Z fulfills this requirement); and(v) any other notice or disclosure required by Texas Property Code Chapter 53;(I) Reverse Mortgages. For reverse mortgage transactions, the following records: (i) the disclosure required by Section 50(k)(9);(ii) the certificate of counseling required by Section 50(k)(8);(iii) the servicing disclosure statement required by Regulation X (12 C.F.R. § 1024.33(a));(iv) the disclosures required by Regulation Z (12 C.F.R. § 1026.33(b)); and(v) any other notice or disclosure required by federal or state law to originate a reverse mortgage.(d) Required Records (Loan Processing and Underwriting). A mortgage company and its sponsored originators must maintain the following items in connection with the provision of third-party loan processing and underwriting services by the mortgage company to a mortgage company licensed by SML or a mortgage banker registered with SML: Loan Processing and Underwriting Log. A loan processing and underwriting log, maintained on a current basis (meaning all entries must be made within 7 days after the date on which the events they relate to occurred and updated as the information changes) that sets forth, at a minimum (the log may include additional information, provided, the information is readily sortable as required by subsection (b)(1) of this section): (1) full name of each mortgage applicant (last name, first name);(2) application/loan identification number assigned by the mortgage company; (3) application/loan identification number assigned by the mortgage company or mortgage banker to which the mortgage company is providing loan processing or underwriting services, if different than paragraph (2) of this subsection;(4) loan identification number assigned by the lender, if different than paragraphs (2) or (3) of this subsection; (5) address of the subject property (street address, city, state, zip code);(6) full name and NMLS ID of the mortgage company or mortgage banker to which the mortgage company is providing loan processing or underwriting services;(7) the name, NMLS ID, and employment status (e.g., W-2 or 1099) of each individual loan processor or underwriter performing loan processing or underwriting services on behalf of the mortgage company; (9) description of the owner's or prospective owner's intended occupancy of the real estate secured or designed to be secured by the loan (e.g., primary residence (including real estate (land lot) or a dwelling not suitable for occupancy at the time the loan is consummated but that the owner intends to occupy as their primary residence after consummation of the loan), secondary residence, or investment property (no intent to occupy as their residence));(10) description of the current status or disposition of the loan application (e.g., in-process, withdrawn, closed, or denied);(11) dollar amount invoiced, assessed, charged, collected, and/or paid by the mortgage applicant for the loan processing or underwriting services provided by the mortgage company; and (12) description of whether the fee for the loan processing or underwriting services was included on the Closing Disclosure as a fee paid directly to the mortgage company at closing (e.g., on CD, or not on CD).(e) Other Records Required by Federal Law. A mortgage company and its sponsored originators must maintain such other books and records as may be required to evidence compliance with applicable federal laws and regulations, including, but not limited to: (1) the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq.) and Regulation V (12 C.F.R. § 1022.1 et seq.);(2) the Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et seq.) and Regulation P (12 C.F.R. § 1016.1 et seq.), and the Federal Trade Commission's (FTC) Privacy of Consumer Financial Information rules (16 C.F.R. § 313.1 et seq.);(3) the Secure and Fair Enforcement for Mortgage Licensing Act (12 U.S.C. § 5101 et seq.) and Regulation H (12 C.F.R. § 1008.1 et seq.);(4) Regulation N (12 C.F.R. § 1014.1 et seq.), and(5) the FTC's Standards for Safeguarding Customer Information rule (16 C.F.R. § 314.1 et. Seq.) (f) General Business Records. A mortgage company and its sponsored originators must capture and maintain the following records generated in the normal course of doing business: (1) all checkbooks, check registers, bank statements, deposit slips, withdrawal slips, and cancelled checks (or copies thereof) relating to residential mortgage loan origination business;(2) complete records (including invoices and supporting documentation) for all expenses and fees paid on behalf of a mortgage applicant, including a record of the date and amount of all such payments actually made by each mortgage applicant; (3) all federal tax withholding forms, reports of income for federal taxation, and evidence of payments to all mortgage company employees, independent contractors and all others compensated by the mortgage company in connection with residential mortgage loan origination business;(4) all written complaints or inquiries (or summaries of any verbal complaints or inquiries) along with any correspondence, notes, responses, and documentation relating thereto and the disposition thereof;(5) all contractual agreements or understandings with third parties in any way relating to a residential mortgage loan transaction including, but not limited to, any delegations of underwriting authority, any agreements for pricing of goods or services, investor contracts, or employment agreements;(6) all reports of audits, examinations, inspections, reviews, investigations, or similar, performed by any third party, including any regulatory or supervisory authorities;(7) all advertisements in the medium (e.g., recorded audio, video, Internet or social media site posting, or print) in which they were published or distributed; and (8) policies and procedures related to the origination of residential mortgage loans by the mortgage company and its sponsored originators, including, but not limited to: (A) identity theft prevention program (red flags rule; 16 C.F.R. § 681.1(d));(B) anti-money laundering program (31 C.F.R. § 1029.210);(C) information security program (16 C.F.R. § 314.3(a));(D) ability-to-repay underwriting policies, if any, under Regulation Z (12 C.F.R. § 1026.43(c));(E) quality control policy, if any; (F) compliance manual, if any; and (G) personnel administration/employee policies, if any;(g) Records Concerning Administrative Offices. A mortgage company must maintain a list reflecting any office constituting an "administrative office" of the mortgage company for purposes of §56.206 of this title (relating to Office Locations; Remote Work); (h) Records Concerning Remote Work. A mortgage company must maintain records reflecting its compliance with the requirements for remote work, as provided by §56.206 of this title; (i) Records Concerning Corrective Action. A mortgage company must maintain records showing compliance with §56.304 of this title (relating to Corrective Action);(j) Records Concerning Unclaimed Funds. A mortgage company must maintain records showing compliance with §56.305 of this title (relating to Unclaimed Funds); and(k) Other Records Designated by SML. A mortgage company and its sponsored originators must maintain such other books and records as SML may, from time to time, specify in writing.7 Tex. Admin. Code § 56.204
Adopted by Texas Register, Volume 49, Number 46, November 15, 2024, TexReg 9210, eff. 11/23/2024