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Copyright 2000: Queen’s Printer,
St. John's, Newfoundland and Labrador, Canada

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Revised Statutes of Newfoundland 1990


CHAPTER M-18

AN ACT TO REGISTER MORTGAGE BROKERS AND TO CONTROL THE AMOUNT OF BONUSES TO BE CHARGED BY MORTGAGE BROKERS AND MORTGAGE LENDERS

Analysis

1. Short title

2. Definitions

3. Registrar

4. Registration

5. Application

6. Suspension or cancellation of registration

7. Investigations

8. Disclosure of cost of borrowing

9. Limitation of liability of borrower

10. Exemption from disclosure

11. Bonus

12. False advertising

13. Regulations

14. Offence

15. Limitation period

16. Certificate as evidence

17. Act may not be waived

18. Appeal

19. Judge to hear appeal


Short title

1. This Act may be cited as the Mortgage Brokers Act.

1975-76 No49 s1

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Definitions

2. In this Act

(a) "bonus" means discount, premium, dues, commission, brokerage fee, finders fee or other payment made by a borrower to a mortgage lender or mortgage broker;

(b) "borrower" means a person who applies for a mortgage from a mortgage lender or mortgage broker;

(c) "mortgage" means a mortgage on land, and includes a charge on, or transfer of, land or an interest in land for the purpose of securing money or money's worth;

(d) "mortgage broker" means a person who deals in mortgages, a person who holds himself or herself out as being able to provide services usually provided by a mortgage broker or a person who for profit finds mortgage money on behalf of others;

(e) "mortgage lender" means a person who carries on the business of lending money on the security of land, whether the money is his or her own or that of another person; and

(f) "registrar" means the Registrar of Mortgage Brokers.

1975-76 No49 s2

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Registrar

3. (1) The Lieutenant-Governor in Council shall appoint a Registrar of Mortgage Brokers to administer and enforce this Act and the regulations.

(2) The Lieutenant-Governor in Council may appoint a Deputy Registrar of Mortgage Brokers who, in the absence or incapacity of the registrar, shall perform the functions and exercise the powers of the registrar.

(3) For the purposes of carrying out his or her powers and duties under this Act, the registrar has the powers, privileges and immunities that are or may be conferred on a commissioner under the Public Inquiries Act.

1975-76 No49 s3

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Registration

4. A person shall not act as a mortgage broker unless he or she is registered under this Act, or exempted from registration by the regulations.

1975-76 No49 s4

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Application

5. (1) A person may apply for registration as a mortgage broker on a form supplied by the registrar.

(2) The registrar shall register a mortgage broker who meets the requirements of the Act and the regulations.

(3) A registration remains in effect until it is withdrawn by the registered person or is suspended or cancelled under this Act.

(4) The registrar shall not refuse to grant registration to a mortgage broker, or cancel or suspend his or her registration without giving the mortgage broker an opportunity to be heard.

1975-76 No49 s5

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Suspension or cancellation of registration

6. The registrar may suspend or cancel the registration of a mortgage broker

(a) for the breach of a term or condition upon which a registration was granted;

(b) where he or she has reason to believe that a mortgage broker has failed to comply with this Act or the regulations;

(c) in the case of a corporation, where the corporation has been dissolved or has been struck off the register under the Corporations Act;

(d) where a mortgage broker has become bankrupt; or

(e) where he or she considers it to be in the public interest to do so.

1975-76 No49 s6; 1986 c12 Sch; 1987 c38 Sch B

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Investigations

7. (1) The registrar, or other person authorized by him or her, referred to in this Act as an "investigator", may investigate and inquire into a matter that the registrar considers necessary for the administration of this Act.

(2) An investigator may at reasonable times enter a place where it is reasonably necessary to determine compliance with this Act and may demand the production of and may inspect and review records that the investigator believes on reasonable grounds are in respect of the person about whom the investigation is being made.

(3) Where the registrar believes on reasonable grounds that a person has contravened this Act or regulations, an investigator may with a warrant issued under subsection (4) at a reasonable time enter upon a place and may investigate, inquire into and examine the affairs of the person in respect of whom the investigation is being made and into records in relation to that person.

(4) A Provincial Court judge or justice of the peace who is satisfied by information upon oath or affirmation that there are reasonable grounds for believing that there is in a place anything that there are reasonable grounds to believe will give evidence with respect to an offence under this Act may issue a warrant authorizing an investigator to enter and search those places and to make inquiries and copies of records that are considered necessary, subject to conditions that may be specified in the warrant.

(5) The owner or person in charge of the place referred to in this section and persons found in that place shall give an investigator reasonable help to enable the investigator to carry out his or her duties and functions under this section and shall provide information that the investigator may reasonably require.

1975-76 No49 s7; 1985 c11 s52

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Disclosure of cost of borrowing

8. Where a borrower proposes to borrow money on the security of a mortgage from a mortgage lender or from a source found for him or her by a mortgage broker, the mortgage lender and mortgage broker shall provide to a borrower at least 48 hours before the execution of a mortgage by the borrower, a written statement in a form approved by the registrar, showing

(a) the actual amount of money to be advanced to the borrower;

(b) the amount of a bonus;

(c) estimated legal fees and disbursements;

(d) the cost of borrowing expressed in terms set out in the regulations; and

(e) other matters as set out in the regulations.

1975-76 No49 s8; 1977 c54 s1

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Limitation of liability of borrower

9. A borrower is not liable to pay a mortgage lender or mortgage broker an amount that exceeds that set out in the disclosure statement made under section 8, or as calculated under the disclosure statement.

1977 c54 s2

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Exemption from disclosure

10. Sections 8 and 9 do not apply to a mortgage in excess of $500,000 to be made between a mortgage lender and a borrower, or to a mortgage in that amount found by a mortgage broker for a borrower.

1978 c1 s1

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Bonus

11. (1) A mortgage lender or mortgage broker shall not charge a bonus in excess of the amount set out in the regulations.

(2) A bonus charged by a mortgage lender or mortgage broker in excess of the amount set out in the regulations is recoverable on the suit of the registrar as a civil debt due the Crown.

(3) An amount recovered under subsection (2) shall be paid to the borrower by the registrar.

(4) This section does not apply to a mortgage in excess of $25,000 made between a mortgage lender and a corporation, or to a source of money found by a mortgage broker for a corporation.

1975-76 No49 s10

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False advertising

12. Where, in the opinion of the registrar, a mortgage lender or mortgage broker is making false, misleading or deceptive statements relating to the lending of money on the security of real property in an advertisement, he or she may order the immediate cessation of the use of those statements.

1975-76 No49 s11

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Regulations

13. The Lieutenant-Governor in Council may make regulations

(a) respecting the registration of mortgage brokers and the issuing of certificates of registration;

(b) prescribing application forms, the information to be supplied and the fees to be paid by applicants;

(c) requiring mortgage brokers to be bonded and providing for the forfeiture of the bond and the disposition of the proceeds;

(d) respecting the suspension or cancellation of registration;

(e) providing for the approval of the disclosure statements made under section 8 and other matters to be included in those disclosure statements;

(f) requiring the use by mortgage lenders and mortgage brokers of agreements, instruments and other documents that are in a form approved by the registrar;

(g) respecting advertising by mortgage brokers and mortgage lenders;

(h) prescribing the form and content of the records to be kept by mortgage lenders and mortgage brokers;

(i) respecting the regulation of trust accounts kept by mortgage lenders and mortgage brokers;

(j) prescribing reports and returns to be made by mortgage brokers to the registrar;

(k) providing for the exemption of classes of mortgage brokers from the requirement of registration under this Act;

(l) providing for the amount of bonuses not to exceed 4% of the principal amount of the mortgage plus $100 that may be charged by mortgage lenders and mortgage brokers;

(m) providing for the holding of inquiries into the operation of this Act and into charges or complaints that a person has contravened this Act or the regulations, or into other matters arising in the administration of this Act and conferring upon the person holding that inquiry all of the powers that are conferred upon a commissioner under the Public Inquiries Act; and

(n) generally, to give effect to the purpose of this Act.

1975-76 No49 s12; 1977 c54 s3

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Offence

14. (1) A person who

(a) contravenes this Act or the regulations, or makes a false statement in an application or other document made under this Act or the regulations; or

(b) being a director or officer of a corporation, knowingly concurs in the contravention of this Act or the regulations or the making of a false statement in an application or other document made under this Act or the regulations,

is guilty of an offence and liable on summary conviction to a fine of not more than $2,000 or to imprisonment for a period not exceeding 9 months, or to both a fine and imprisonment.

(2) The court may order the repayment of a bonus in excess of that set out in the regulations, in addition to a fine or term of imprisonment.

(3) Where a corporation is convicted of an offence under subsection (1), it is liable to a fine of not more than $25,000.

1975-76 No49 s13

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Limitation period

15. A prosecution under this Act may be started within 3 years from the date on which the offence was alleged to have been committed.

1975-76 No49 s14

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Certificate as evidence

16. A statement as to

(a) the registration or non-registration of a person;

(b) the filing or non-filing of a document required to be filed with the registrar; or

(c) the time when the facts upon which the proceedings are based 1st came to the knowledge of the registrar

purporting to be certified by the registrar is, without proof of his or her office or signature, in the absence of evidence to the contrary, presumptive proof of the facts stated in it in a prosecution under this Act.

1975-76 No49 s15

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Act may not be waived

17. This Act applies notwithstanding an agreement or waiver to the contrary.

1975-76 No49 s16

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Appeal

18. (1) A person dissatisfied with a decision or order of the registrar may appeal to a judge of the Trial Division.

(2) The notice of appeal may be made within 30 days of written notice of the decision or order of the registrar.

(3) The notice of appeal shall be served on the registrar, and a copy filed in the office of the Registrar of the Supreme Court.

(4) The grounds of the appeal shall be set out in the notice of appeal.

1975-76 No49 s17

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Judge to hear appeal

19. (1) The judge shall hear the appeal upon the evidence brought before him or her by the appellant and the Crown in a summary manner, and he or she may confirm, vary or set aside the decision or order of the registrar.

(2) The registrar shall produce before the judge all papers and documents in his or her possession affecting the matter of the appeal.

(3) The judge may make an order as to costs in favour of or against the Crown.

1975-76 No49 s18

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