441-875-0030 Manner of Deposit (1) A mortgage banker or mortgage broker shall deposit all trust funds received from a client into the trust account or neutral escrow depository and shall keep such funds in the trust account or neutral escrow depository until: (a) In the case of a neutral escrow depository, the written escrow instructions prepared pursuant to the provisions of OAR 441-875-0040(3) and agreed to by all parties have been fulfilled; or (b) In the case of a trust account, the instructions for disbursement of trust funds have been fulfilled as contained in: (A) The loan application form; or (B) A separate fee agreement, if any. (2) A mortgage banker or mortgage broker shall not commingle any monies received from a client for deposit into a trust account with personal funds of the mortgage banker or mortgage broker. For purposes of OAR 441-875-0010 through 441-875-0040, the following shall not constitute commingling of trust funds with personal funds if the funds are removed from the trust account within 30 days: (a) Earned, but untransferred interest income accruing to the mortgage banker or mortgage broker pursuant to a written agreement with the client; (b) Earned, but untransferred fees due the mortgage banker or mortgage broker. (3) Every deposit into a trust account shall be in a form that allows deposit into the trust account including, but not limited to, cash, check, or any electronic transmission of funds or wire transfers, automated clearinghouse authorizations, credit card or debit transactions, or online payments through a website. (4) All deposits into a trust account must be documented by: (a) A deposit slip that has been validated by bank imprint, or an attached deposit receipt which bears the signature of an authorized representative of a mortgage banker or mortgage broker indicating that the funds were actually deposited into the proper account(s) for deposits that are not by electronic transmission; or (b) A record of the deposit including a traceable identifying name or number supplied by the federally insured financial institution or transferring entity for electronic transmissions of funds or wire transfers, automated clearinghouse authorizations, credit card or debit transactions, online payments through a web site. (c) Compliance with (3) of this rule may be satisfied if a mortgage banker or mortgage broker has attached a copy of the client’s check to the deposit slip or has retained a receipt for the deposit of the funds containing the traceable identifying name or number supplied by the federally insured financial institution or transferring entity for electronic transmissions of funds or wire transfers, automated clearinghouse authorizations, credit card or debit transactions, online payments through a web site along with written documentation that identifies the name of the client, amount of the deposit, and the purpose of the funds for each client whose funds are included in the deposit. (5) Every deposit into a neutral escrow depository shall be accompanied by a letter of transmittal which shall include a written notation of the file identification assigned to the transaction on whose behalf the deposit is made. Compliance with this rule may be satisfied when a mortgage banker or mortgage broker has attached a copy of the client's check to the letter of transmittal. (6) All customer securities must be held in trust and kept in a secure depository. The securities must be held in such a manner that they will be free from claims, levy, or attachment by creditors of the mortgage banker or mortgage broker. (7) All funds, whether in the form of money, checks, drafts, or warrants belonging to others and accepted by any mortgage banker or mortgage broker engaged in professional activity shall be deposited prior to the close of business of the third banking day following the date of the receipt of the funds into a trust account or neutral escrow depository established by the mortgage banker or mortgage broker. The mortgage banker or mortgage broker shall account for all funds received. (8) Every mortgage banker or mortgage broker which requires a residential loan client to pay an amount for services prior to the time that the services are rendered may maintain a separate trust account in this state for prepayments and shall keep prepayment funds subject to refund in the trust account until the services are performed according to the provisions contained in OAR 441-875-0040(5) and (6), or the loan is rejected. (9) In the event that the mortgage banker or mortgage broker accepts fees in advance of completing professional services, or accepts fees paid as a retainer to secure the availability of the mortgage banker or mortgage broker, or accepts a consulting fee for professional services, the fees shall be refundable and are trust funds unless the mortgage banker or mortgage broker provides written notice to the client prior to or at the time of receipt of the fees that such fees are not refundable. A record of this written notice to a client shall be maintained in the client file pursuant to the provisions of OAR 441-865-0020 through 441-865-0090. Statutory/Other Authority: ORS 86A.136 & 86A.157 Statutes/Other Implemented: ORS 86A.157 History: FCS 5-2014, f. 9-18-14, cert. ef. 1-1-15 FCS 14-2009, f. 12-30-09, cert. ef. 1-4-10 FCS 11-1994, f. 11-4-94, cert. ef. 11-15-94 FCS 3-1993, f. & cert. ef. 11-15-93