No. 27404 (Amendment): R162-209. Administrative Proceedings

DAR File No.: 27404
Filed: 09/02/2004, 04:49
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

It is necessary to specify the administrative procedures for a new responsibility assigned to the Division by S.B. 178 (2004 General Session), which is certifying providers of prelicensing education and continuing education for mortgage licensees. (DAR NOTE: S.B. 178 is found at UT L 2004 Ch 297, and was effective 05/03/2004.)

 

Summary of the rule or change:

Proceedings on original or renewal applications for education certification are designated as informal adjudicative proceedings. No hearings will be required in these proceedings.

 

State statutory or constitutional authorization for this rule:

Subsection 61-2c-103(6)

 

Anticipated cost or savings to:

the state budget:

None--The certification procedures for those who provide prelicensing education and postlicensing education to mortgage licensees has no impact on the State budget.

 

local governments:

None--Local government is not affected by the certification procedures for the providers of the prelicensing and postlicensing education for mortgage licensees.

 

other persons:

The only other persons who could be affected by the mortgage education certification procedures are the providers of that education. Because the education certification will be handled in informal adjudicative proceedings instead of formal adjudicative proceedings, there may be a cost savings to the applicants in an amount that cannot be calculated.

 

Compliance costs for affected persons:

The parties who apply for education certification should not incur additional cost because education certification will be handled in informal adjudicative proceedings instead of formal adjudicative proceedings. If anything, handling these matters in informal proceedings may result in a cost savings to the applicants in an amount that cannot be calculated.

 

Comments by the department head on the fiscal impact the rule may have on businesses:

This rule filing, which designates certification of courses, schools and instructors as informal adjudicative proceedings, appears to create no fiscal impact to businesses.

 

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Commerce
Real Estate
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY UT 84111-2316

 

Direct questions regarding this rule to:

Shelley Wismer at the above address, by phone at 801-530-6761, by FAX at 801-530-6749, or by Internet E-mail at [e-mail]

 

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

11/01/2004

 

This rule may become effective on:

11/02/2004

 

Authorized by:

Dexter Bell, Director

 

 

RULE TEXT

R162. Commerce, Real Estate.

R162-209. Administrative Proceedings.

R162-209-1. Formal Adjudicative Proceedings.

Any adjudicative proceeding as to the following matters shall be conducted on a formal basis:

209.1.1. A disciplinary action commenced by the Division following investigation of a complaint; and

209.1.2. Any proceedings conducted subsequent to the issuance of a cease and desist order.

 

R162-209-2. Informal Adjudicative Proceedings.

209.2.1. All adjudicative proceedings as to any other matters not specifically designated as formal adjudicative proceedings shall be conducted as informal adjudicative proceedings.

209.2.2. A hearing will be held in an informal adjudicative proceeding only if required or permitted by the Utah Residential Mortgage Practices Act or by these rules.

209.2.3. A party is not required to file a written answer to a notice of agency action from the Division in an informal adjudicative proceeding.

209.2.4. All proceedings on original or renewal applications for a license will be conducted as informal adjudicative proceedings. All proceedings on original or renewal applications for certification of a school, instructor, or course will be conducted as informal adjudicative proceedings.

209.2.5. Any application form which is filled out and submitted to the Division for a license or renewal of a license shall be deemed a request for agency action pursuant to the Utah Administrative Procedures Act, Section 64-46b-1, et seq.

209.2.6. Within a reasonable time after receipt of an application, the Division shall:

(a) issue and mail a license to the applicant, which shall be deemed notification that the application is granted conditionally subject to the outcome of the criminal background check;

(b) notify the applicant that the application is incomplete or that further information is needed;

(c) notify the applicant that a hearing shall be scheduled before the Utah Residential Mortgage Regulatory Commission; or

(d) notify the applicant that the application is denied, and, if the proceeding is one in which a hearing is permitted, that [he]the applicant may request a hearing to challenge the denial.

209.2.7. Other Requests for Agency Action. All other requests for agency action shall be in writing and signed by the requestor, and shall contain the following:

(a) the names and addresses of all persons to whom a copy of the request for agency action is being sent;

(b) the agency's file number or other reference number, if known;

(c) the date of mailing of the request for agency action;

(d) a statement of the legal authority and jurisdiction under which the agency action is requested, if known;

(e) a statement of the relief or action sought from the Division; and

(f) a statement of the facts and reasons forming the basis for relief or agency action.

209.2.8. Within a reasonable time after receipt of a request for agency action other than an application for an original or renewed license, the Division shall:

(a) notify the requestor in writing that the request is granted;

(b) notify the requestor that the request is incomplete or that further information is needed before the Division is able to make a determination on the request;

(c) notify the requestor that the Division does not have the legal authority or jurisdiction to grant the relief requested or the action sought; or

(d) notify the requestor that the request is denied, and, if the proceeding is one in which a hearing is permitted, that he may request a hearing to challenge the denial.

209.2.9. A complaint against a licensee requesting that the Division commence an investigation or a disciplinary action is not a request for agency action pursuant to the Utah Administrative Procedures Act, Section 64-46-1, et seq.

 

R162-209-3. Hearings Not Required.

A hearing is not required and will not be held in the following informal adjudicative proceedings:

(a) The issuance of an original or renewed license when the application has been approved by the Division;

(b) The issuance of an original or renewed school certification, instructor certification, or course certification when the application has been approved by the Division;

(c) The issuance of any interpretation of statute, rule or order, or the issuance of any written opinion or declaratory order determining the applicability of a statute, rule or order, when enforcement or implementation of the statute, rule or order lies within the jurisdiction of the Division; [or]

[(c)](d) The denial of an application for original or renewed license on the ground that it is incomplete[.];

(e) The denial of an application for original or renewed school certification, instructor certification, or course certification on the ground that it does not comply with the requirements of Sections R162-208.9, R162-210.2, R162-210.5, or R162-210.6; or

(f) All proceedings on an application for an exemption from the continuing education requirement.

 

R162-209-4. Hearings Permitted.

209.4.1. An informal post-revocation hearing following the revocation of a license pursuant to Utah Code Section 61-2c-202(4)(d) for the failure of a person to accurately disclose his criminal history will be held only if requested in writing by the person within 30 days from the date the Division's order revoking the license was mailed.

 

R162-209-5. Procedures for Hearing in Informal Adjudicative Proceedings.

209.5.1. Notice of hearing. Upon the scheduling of a hearing by the Division on an application for a license or upon receipt of a timely request for a hearing where other hearings are permitted, the Division shall mail written notice of the date, time, and place scheduled for the hearing at least ten days prior to the hearing.

209.5.2. Discovery is prohibited, but the Division may issue subpoenas or other orders to compel production of necessary evidence. All parties shall have access to the Division's files and all materials and information gathered in any investigation to the extent permitted by law.

209.5.3. Intervention is prohibited.

209.5.4. Hearings shall be open to all parties, except that a hearing on an applicant's fitness for a license shall be conducted in a closed session which is not open to the public. The parties named in the notice of agency action or the request for agency action may be represented by counsel and shall have the opportunity to testify, present witnesses and other evidence, and comment on the issues.

209.5.5. Within a reasonable time after the hearing, the presiding officer shall cause to be issued and sent to the parties a signed order based on the facts appearing in the agency's files and on the facts presented in evidence at the hearing. The order shall state the decision and the reasons therefor and a notice of the right of administrative review and judicial review available to the parties including applicable time limits.

 

KEY: residential mortgage loan origination

[April 12, ]2004

63-46b-4