On May 2, 2022, Georgia Gov. Brian Kemp signed SB 470, which amends provisions of Georgia’s banking laws relating to the denial or revocation of a mortgage license or registration due to certain felony convictions. SB 470 will reduce the impact on mortgage companies as a result of Georgia’s existing prohibition on the employment of previously convicted felons.
While the federal SAFE Act imposes requirements on mortgage loan originator licensees that require such individuals to be subject to criminal background checks and limits such individuals from being licensed if they have been convicted of a felony during the previous seven years, certain states have requirements that go beyond those SAFE Act requirements. Georgia had historically been challenged by rampant mortgage fraud and, as a result, maintains significant protections regarding the employment of felons. Specifically, the Georgia Residential Mortgage Act historically has restricted the overwhelming majority of individuals who have been convicted of a felony from being employed by a Georgia mortgage lender licensee or a Georgia mortgage broker/processor licensee. The impact of this provision extended well beyond Georgia and included employees and mortgage originators in other states, even those without a license to make loans in the state of Georgia.
The new law, styled as Act 796, amends Article 13 of Chapter 1 of Title 7 of the Georgia Code and introduces a newly defined term for a covered employee. Specifically, a “covered employee” is defined as “any employee of a mortgage lender or mortgage broker who is involved in residential mortgage loan related activities for property located in Georgia and includes, but is not limited to, a mortgage loan originator, processor, or underwriter, or other employee who has access to residential mortgage loan origination, processing, or underwriting information.” The practical impact of this language is that so long as employers who hold a Georgia mortgage license can ensure that their employees located outside of Georgia are not engaging in origination, processing, or underwriting activities relating to Georgia loans, and do not have access to information relating to Georgia loans, the employment of individuals who may have been previously convicted of a felony will not be a compliance violation that could subject the licensee to enforcement action, including potential license revocation, by the Georgia Department of Banking and Finance. Ultimately, the Department of Banking and Finance may promulgate additional rules or issue guidelines on how it will administer this requirement. However, we understand the intent of the legislation is to allow companies to hire more freely outside of Georgia, with the understanding that it is possible to hire someone who may have a felony in their background so long as the individual is not within Georgia and will not work with Georgia loan files.
© 2022 Bradley Arant Boult Cummings LLPNational Law Review, Volume XII, Number 129