New Hampshire Enacts Provisions Concerning the Uniform Power of Attorney Act and Modifies Provisions Concerning Mortgage Loan Originator Licensing

Uniform Power of Attorney Act

New Hampshire enacted provisions concerning its Uniform Power of Attorney Act. These provisions are effective on January 1, 2018.

Power of Attorney

Under the Act, a power of attorney is a writing or other record that grands authority to an agent to act in the place of the principal. 564-E:102(15). When a power of attorney is created under this chapter, it will be durable, unless expressly provided that it is terminated by the incapacity of the principal 564-E:104. A power of attorney is effective when it is executed, unless the principal provides in the power of attorney that it becomes effective at a future date or upon the occurrence of a future event or contingency. 564-E:109(a).

Execution of Power of Attorney

In order to execute a general power of attorney, the principal must sign (not electronically) and it must be acknowledged before a notary public. 564-E:105(a)(1). Affixed to the power of attorney, must be a form stating: “Information concerning the power of attorney. This is an important legal document. Before signing this document you should know these important facts.” 564-E:105(a)(2). Facts included in the power of attorney are powers granted by the principal to the agent to make decisions concerning money and property. The scope of the agent’s power should be explicitly defined by the principal. 564-E:105(a)(2).

Co-Agents and Successor Agents

A principal may designate two or more persons to act as co-agents under the power of attorney. Additionally, a principal may designate one or more successor agents to act if an agent resigns, dies, becomes incapacitated, is not qualified to serve, or declines to serve. A principal may grant authority to designate one or more successor agents to an agent or other person designated by name, office, or function. 564-E:111(a)-(b).

Agent’s Duties

Duties of the agent under a power of attorney include acting in accordance with the principal’s reasonable expectations, acting in the principal’s best interest, acting in good faith, and acting only within the scope of authority granted in the power of attorney. 564-E:114(a)(1)-(3). The agent must also act loyally for the principal’s benefit. 564-E:114(b)(1).

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Mortgage Loan Originator Licensing

New Hampshire modified its provisions concerning the licensing of mortgage loan originators from another state. The Bill allows the Banking Commissioner to conditionally approve a license for a mortgage loan originator of a person who is licensed in another state. These provisions are effective on August 28, 2017.

License Application Requirements

Under the Bill, in order for the Commissioner to issue a mortgage loan originator license, the Commissioner must make at a minimum certain findings. These findings include that the applicant has never had a mortgage loan originator license revoked in any governmental jurisdiction. 184:1 IV-c(a)(1). The applicant must not have been convicted of, or pled guilty or nolo contendere to, a felony in a domestic, foreign, or military court. 184:1 IV-c(a)(2). The applicant must demonstrate financial responsibility, character, and general fitness such as to command the confidence of the community and to warrant a determination that the mortgage loan originator will operate honestly, fairly, and efficiently. 184:1 IV-c(a)(5). In order to determine financial responsibility of an applicant, the Commissioner may consider bankruptcies filed within the pervious ten years, current outstanding judgments, current outstanding tax liens or other government liens and filings, foreclosure within the previous three years, and a pattern of serious delinquent accounts within the past three years. 184:1 IV-c(a)(5)(A)-(E).

Education Requirements

An applicant must also have completed at least twenty hours of education. At a minimum, the education must include at least three hours of federal law and regulations and three hours of ethics, which includes instruction on fraud, consumer, protection, and fair lending issues. 184:1 IV-c(a)(7)(A)-(B). Additionally, two hours of training related to lending standards for the non-traditional mortgage marketplace is required and two hours of New Hampshire mortgage law education, if the person did not previously pass a written test specific to New Hampshire mortgage laws. 184:1 IV-c(a)(7)(C)-(D).

The Commissioner may conditionally approve an application for a mortgage loan originator license if the applicant is currently licensed as a loan originator in another state and has met the previously described requirements of subparagraph (a)(1) through (a)(7)(C). The conditionally approved mortgage loan originator license shall expire after 60 days if the applicant fails to provide the Commissioner with proof that the applicant has obtained two hours of New Hampshire mortgage law education required by subparagraph (a)(7)(D) and passed a written test as required by subparagraph (a)(8). 184:1 IV-c(b).

Test Requirements

The written test must measure the applicant’s knowledge and comprehension in ethics and federal and state laws and regulations pertaining to mortgage origination, including instruction of fraud, consumer protection, the non-traditional mortgage market place, and fair lending issues. 184:1 IV-c(d)(2)(A)-(D). In order to pass the test, the applicant must have received a test score of at least 75%. The test may be re-taken three times, with at least 30 days between each test. After failing three consecutive tests, an applicant must wait at least six months before taking the test again. 184:1 IV-c(d)(4).

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Laura Eckstein, JD, is a regulatory compliance consultant with Bankers Advisory. She is a graduate of the University of Rhode Island and earned her juris doctor at Suffolk Law School. She is admitted to the Bar in Massachusetts and New Hampshire.

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