Tennessee § 45-13-201 - License required — Exceptions.

§ 45-13-201. License required — Exceptions.

No person shall act as a mortgage lender, mortgage loan broker or mortgage loan servicer in this state without first obtaining a license under this chapter. Except in the case of sale of real property as provided in subsection (b), no contractor or home improvement contractor or other person who supplies materials and renders services in the improvement of real property shall engage in the business of making residential mortgage loans or of being a mortgage loan servicer or mortgage loan broker in this state. The requirement of a license under subsection (a) and this chapter do not apply to any of the following, except as provided in subdivision (b)(2): Any depository institution; Any subsidiary of a depository institution that is owned and controlled by the depository institution and regulated by a federal banking agency; Any institution regulated by the farm credit administration; Any individual who makes a residential mortgage loan to, or offers or negotiates terms of a residential mortgage loan with or on behalf of, an immediate family member of the individual; An individual who makes a residential mortgage loan, or simply offers or negotiates terms of a residential mortgage loan, when the loan is secured by a dwelling that served as the individual's residence; A licensed attorney performing activities that do not require licensure under the guidelines set forth in 12 CFR part 1008, appendix D; Any person, or person under the control of another person who, as seller, receives or makes in any consecutive twelve-month period five (5) or fewer residential mortgage loans and who does not hold themselves out to the public as being in the residential mortgage lending business; No person shall be exempt from subsection (a) and this chapter pursuant to this subdivision (b)(1)(G) if such person makes more than five (5) residential mortgage loans in a consecutive twelve-month period whether such person makes such loans themselves or through another person over whom such person has control; Any person, or person under the control of a person, who makes a mortgage loan to an employee of such person as an employment benefit, employment incentive, or relocation package; Any person, or person under the control of a person, doing any act related to mortgage loans pursuant to an order of a court of competent jurisdiction; A person that performs only real estate brokerage activities, as defined in § 45-13-105, and is licensed pursuant to the Tennessee Real Estate Broker License Act of 1973, compiled in title 62, chapter 13. Such person is permitted to communicate and include in any contract any mortgage terms agreed upon by the parties for the real property being financed without being required to be licensed under this chapter, so long as the communication does not include the offering or negotiating of any terms of a residential mortgage loan; and A person that performs land title insurance services in connection with a closing of a sale transaction and is licensed pursuant to title 56, chapter 6 and the rules of the department of commerce and insurance compiled at chapter 0780-1-56. Such person is permitted to communicate and include in any closing documents any mortgage terms agreed upon by the parties for the real property being financed without being required to be licensed under this chapter, so long as the communication does not include the offering or negotiating of any terms of a residential mortgage loan. This subsection (b) does not exempt a person from licensure as a mortgage loan originator if the United States department of housing and urban development or its duly designated successor has expressly determined that the person is subject to licensure as a mortgage loan originator as the term is defined in the Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (12 U.S.C. § 5101 et seq.). The requirement of a license to act as a mortgage lender under subsection (a) and the requirements of this chapter pertaining to mortgage lenders, unless otherwise stated, do not apply to any registrant making residential mortgage loans that is authorized to do so under the Industrial Loan and Thrift Companies Act, compiled in chapter 5 of this title; provided, however, that all mortgage loan originators of the registrant must be licensed under part 3 of this chapter. The commissioner shall be authorized to exempt in whole or in part from the requirements of this chapter additional entities or classes of entities, not including individuals, that the commissioner finds inappropriate to include to effectuate the purposes of this chapter, so long as the exemption is compliant with and does not impede the purposes of the Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (12 U.S.C. § 5101 et seq.). Upon approval or consent by the United States department of housing and urban development, the commissioner shall be authorized to exempt in whole or in part from this chapter additional individuals or classes of individuals, such as those working for bona fide nonprofit corporations and government agencies, that the commissioner finds inappropriate to include to effectuate the purposes of this chapter. Acts 2009, ch. 499, § 8; 2011, ch. 228, § 1; 2013, ch. 104, §§ 1-4. Compiler's Notes. Former chapter 13, §§ 45-13-101 —45-13-129 (Acts 1988, ch. 846, §§ 1-18; 1990, ch. 788, §§ 1-3; 1996, ch. 629, § 1; 2001, ch. 165, §§ 10-20; 2003, ch. 141, §§ 1-3; 2004, ch. 747, §§ 1-10; 2005, ch. 463, § 1; 2008, ch. 821, §§ 1-3, 5-9), concerning the Tennessee Residential Lending, Brokerage and Servicing Act of 1988, was repealed and replaced by the Tennessee Residential Lending, Brokerage and Servicing Act by Acts 2009, ch. 499, § 8, effective July 31, 2009. See this chapter for current provisions. Acts 2011, ch. 228, § 2 provided that the secretary of state is directed to deliver a copy of the act, which amended subsections (a), (b) and (d), to the appropriate division of the United States department of housing and urban development having responsibility for administering the Secure and Fair Enforcement for Mortgage Licensing Act of 2008, compiled in 12 U.S.C. § 5101 et seq. Law Reviews. 1996 Real Estate Legislation: What You Don't Know Can Hurt You (William R. Bruce), 32 No. 6 Tenn. B.J. 12 (1996). Attorney General Opinions. An individual investment property owner who provides a purchaser with financing that qualifies as a “residential mortgage loan” must be licensed under T.C.A. §§ 45-13-201 , et seq., unless a statutory exception applies. Additionally, such an individual who provides such financing for compensation or gain or in the expectation thereof must be licensed under T.C.A. §§ 45-13-301 , et seq., unless a statutory exception applies. OAG 10-93, 2010 Tenn. AG LEXIS 99 (8/24/10).