New York Codes, Rules and Regulations › Title 3 - BANKING › Chapter I - GENERAL REGULATIONS OF THE SUPERINTENDENT › Part 38 - Definitions Of Terms; Advertising; Application And Commitment Disclosures And Procedures; Improper Conduct Under Article 12-d › Section 38.1 - Definitions

Current through Register Vol. 46, No. 28, July 10, 2024
For purposes of this Part:
(a) The term
advertisement
shall mean material used or intended to be used to induce the public to apply
				for a mortgage loan. Such term shall include any printed or published material,
				electronic media, audio or visual material, or descriptive literature
				concerning a mortgage loan to be solicited, processed, negotiated or funded by
				a mortgage broker, mortgage banker or exempt organization whether disseminated
				by direct mail, newspaper, magazine, radio or television broadcast, billboard,
				electronic media or similar display. The term
advertisement
shall not include promotional material containing 15 words or fewer relating to
				the mortgage business of the entity which material does not contain references
				to a specific rate or product, such as balloons, hats, pencils or pens,
				calendars or rulers displaying the name of the registrant, licensee or exempt
				organization. The term
advertisement
also shall not include
				any disclosures, program descriptions or other published materials prepared or
				authorized by any State or Federal government agency, nor shall such term
				include any material or communication which has been excluded from any
				definition of
advertisement
for purposes of any regulation of
				the Board of Governors of the Federal Reserve System regulating consumer credit
				disclosures.
(b) The term
application
shall have the same meaning as that term has in
				section 202.2(f) of Regulation B of the Federal Reserve System ( 12 CFR 202) .
				The regulation, including the interpretations thereof contained in Supplement 1
				to Part 202-Official Staff Interpretations, is incorporated by reference and is
				authored by the Board of Governors of the Federal Reserve System and published
				by the United States Government Printing Office, Washington, DC 20402. A copy
				is available for public inspection and copying at the New York City office of
				the New York State Banking Department located at the address stated in
				Supervisory Policy G 1 of this Title.
(c) The term
application fee
shall mean any fee taken by a mortgage broker, mortgage banker or exempt
				organization in connection with an application for a mortgage loan including
				any charge for soliciting, processing, placing or negotiating a mortgage loan.
				The term
application fee
does not include a commitment fee
				taken pursuant to section
				38.4 
				or a lock-in fee taken pursuant to section
				38.6 
				of this Part, nor does such term include payments to be remitted to third-party
				service providers, such as appraisal fees or fees for credit reports, nor
				payments or remittances to the mortgage broker, mortgage banker or exempt
				organization by the lender. In addition, the term application fee does not
				include a processing fee so long as the application fee does not include the
				cost of processing the application.
(d) The terms
bonus
and
premium
shall mean money or an equivalent given in addition to
				usual compensation.
(e) The term
branch
shall mean any location, separate from the head office,
				at which loan solicitation and/or loan processing takes place irrespective of
				whether the only contact with an applicant from that location is by internet,
				telephone, facsimile or other electronic process. The term shall not include
				the residences of any director, officer, partner, employee, independent
				contractor or consultant provided that the primary purpose of such residence is
				for personal, household or family use.
(f) The term
branch manager
shall mean the individual who is in charge of the operations of one or more
				branch locations irrespective of the title given to that individual.
(g) The term
commitment
shall mean a written or electronically transmitted offer to make a mortgage
				loan signed by a licensee or exempt organization.
(h) The term
commitment
				agreement
shall mean a commitment accepted by an applicant for a
				mortgage loan. Such acceptance shall be evidenced by either a hand-written or
				digital signature to the extent that such signatures are recognized as binding
				under New York State law.
(i) The
				term
commitment fee
shall mean a fee, exclusive of third-party
				charges, imposed by the licensee or exempt organization as consideration for
				binding the licensee or exempt organization to make a mortgage loan or as a
				lender's requirement for acceptance by the consumer of a commitment.
(j) The term
digital
				signature
shall mean any electronic authentication method that
				provides the same assurance as a signature in a paper-based system.
(k) The term
electronically
				transmitted
or
electronic media
shall mean any
				transmission via diskette, wire or tape including but not limited to the
				Intranet (interactive or otherwise), the Internet, any other computer network,
				electronic mail, or any other similar method of transmission.
(l) The term
employee
shall
				mean:
(1) any individual performing a service
				for any one of either a mortgage broker, mortgage banker or exempt organization
				for whom such entity would be liable for withholding taxes pursuant to title 26
				of the United States Code; or
(2)
				any individual engaged in regulated activities as an independent contractor
				pursuant to title 26 of the United States Code of any one of either a mortgage
				broker, mortgage banker or exempt organization.