Bill Text: GA SB365 | 2011-2012 | Regular Session | Introduced

Georgia Senate Bill 365 (Prior Session Legislation)

Bill Title: Property; collected funds; change prov.; residential real property; provide form Acknowledgment and Waiver of Borrower's Rights

Spectrum: Partisan Bill (Republican 1-0)

Status: (Passed) 2012-07-01 - Effective Date [SB365 Detail]

Download: Georgia-2011-SB365-Introduced.html

12 SB 365/AP

Senate Bill 365

By: Senator Hamrick of the 30th

AS PASSED

A BILL TO BE ENTITLED
AN ACT

To amend Title 43 and Code Section 44-14-13 of the Official Code of Georgia Annotated, relating to professions and businesses and disbursement of settlement proceeds, respectively, so as to change certain provisions relating to real estate and real estate professionals; to provide for definitions relative to real estate appraisers; to change certain provisions relating to revocation of licenses; to change certain provisions relating to discipline, sanctions, and citations; to provide for a letter of findings to be issued by the Georgia Real Estate Appraisers Board and the Georgia Real Estate Commission; to change certain provisions relating to qualifications for a broker or associate broker's license; to change certain provisions relating to the real estate education, research, and recovery fund; to revise certain provisions relating to the commission's subrogation rights; to change the definition of "settlement agent"; to change provisions relating to the applicability of the Code section and the availability of damages for violating the Code section; to provide for criminal penalties; to provide for exceptions; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Title 43 of the Official Code of Georgia Annotated, relating to professions and businesses, is amended by revising subparagraph (B) of paragraph (3) of Code Section 43-39A-2, relating to definitions relative to real estate appraisers, as follows:

"(B) 'Appraisal management company' does not include:

(i) Any person licensed to practice law in this state who orders an appraisal in connection with a bona fide client relationship when that person directly contracts with an appraiser;

(ii) Any person who contracts with an appraiser acting as an independent contractor for the completion of a real estate appraisal assignment and who, upon the completion of such an assignment, cosigns the appraisal report with the appraiser who is acting as an independent contractor;

(iii) Any federal, state, or local government or any of its departments, agencies, or authorities that order appraisals; or

(iv) Any person who orders an appraisal on behalf of any federal, state, or local government or its departments, agencies, or authorities as an employee thereof; or

(v) A relocation company."

SECTION 2.

Said title is further amended by revising Code Section 43-39A-2, relating to definitions relative to real estate appraisers, by adding a new paragraph to read as follows:

"(25.1) 'Relocation company' means a business entity that acts as an agent or contractor of an employer for the purposes of relocating the employees of such employer and determining an anticipated sales price of the residences of the employees being relocated."

SECTION 3.

Said title is further amended by revising subsection (e) of Code Section 43-39A-3, relating to the Georgia Real Estate Appraisers Board, membership, qualifications, recusal for conflict of interest, terms, removal, meetings, and compensation, as follows:

"(e) Upon expiration of their terms, members of the board shall continue to hold office until the appointment and qualification of their successors. The Governor, after giving notice and opportunity for a hearing, may remove from office any member of the board for any of the following:

(1) Inability to perform or neglecting to perform the duties required of members;

(2) Incompetence;

(3) Dishonest conduct; or

(4) Having a disciplinary sanction other than a citation or a letter of findings authorized by this chapter imposed by any professional licensing agency on such member's right to practice a trade or profession."

SECTION 4.

Said title is further amended by revising Code Section 43-39A-14, relating to required conduct of applicants, refusal of classification, imposition of sanctions, revocation of classification, noncompliance with child support orders, and borrowers in default, as follows:

"43-39A-14.

(a) Appraiser classifications shall be granted only to persons who bear a good reputation for honesty, trustworthiness, integrity, and competence to transact real estate appraisal activity in such manner as to safeguard the interests of the public and only after satisfactory proof of such qualifications has been presented to the board.

(b)(1) As used in this subsection, the term:

(A) 'Conviction' means a finding or verdict of guilty or a plea of guilty to a charge of a felony or any crime involving moral turpitude, regardless of whether an appeal of the conviction has been brought; a sentencing to first offender treatment without an adjudication of guilt pursuant to a charge of a felony or any crime involving moral turpitude; or a plea of nolo contendere to a charge of a felony or any crime involving moral turpitude.

(B) 'Felony' includes means any offense which, if committed in this state, would be deemed a felony, without regard to its designation elsewhere committed:

(i) Within this state and deemed a felony under the laws of this state or under the laws of the United States; or

(ii) In another state and deemed a felony under the laws of that state or the laws of the United States.

(1.1) No person who has a conviction shall be eligible to become an applicant for a license or an approval authorized by this chapter unless such person has successfully completed all terms and conditions of any sentence imposed for such conviction;, provided that if such individual has multiple convictions, at least five years shall have passed since the individual satisfied all terms and conditions of any sentence imposed for the last conviction before making application for licensure or approval; and provided, further, that if such individual has a single conviction, at least two years shall have passed since the individual satisfied all terms and conditions of any sentence imposed for the last conviction before making application for licensure or approval.

(1.2) A person who has a conviction in a court of competent jurisdiction of this state or any other state, district, or territory of the United States, or of a foreign country, shall be eligible to become an applicant for a licensure or an approval authorized by this chapter only if:

(A) Such person has satisfied all terms and conditions of any conviction such person may have had before making application for licensure or approval, provided that, if such individual has multiple convictions, at least five years shall have passed since the individual satisfied all terms and conditions of any sentence imposed for the last conviction before making application for licensure or approval; and provided, further, that if such individual has been convicted of a single felony or of a single crime of moral turpitude, at least two years shall have passed since the individual satisfied all terms and conditions of any sentence imposed for the last conviction before making application for licensure or approval;

(B) No criminal charges for forgery, embezzlement, obtaining money under false pretenses, theft, extortion, conspiracy to defraud, a felony, a sex sexual offense, a probation violation, or a crime involving moral turpitude are pending against the person; and

(C) Such person presents to the commission satisfactory proof that the person now bears a good reputation for honesty, trustworthiness, integrity, and competence to transact the business of a licensee in such a manner as to safeguard the interest of the public.

(2) Where an applicant for any classification or approval authorized by this chapter has been convicted in a court of competent jurisdiction of this state or any other state, district, or territory of the United States or of a foreign country of the offense of forgery, embezzlement, obtaining money under false pretenses, theft, extortion, or conspiracy to defraud or other like offense or offenses or has been convicted of a felony, a sex sexual offense, a probation violation, or a crime involving moral turpitude, such conviction in itself may be a sufficient ground for refusal of a classification or approval. An applicant for any classification or approval authorized by this chapter who has been convicted of any offense enumerated in this paragraph may be issued a classification or approval by the board only if:

(A) The time periods identified in paragraph (1) (1.1) of this subsection have passed since the applicant was convicted, sentenced, or released from any incarceration, whichever is later;

(B) No criminal charges are pending against the applicant; and

(C) The applicant presents to the board satisfactory proof that the applicant now bears a good reputation for honesty, trustworthiness, integrity, and competence to transact real estate appraisal activity in such a manner as to safeguard the interest of the public.

(c) Where an applicant or an appraiser has been found guilty of a violation of the federal fair housing law or Article 4 of Chapter 3 of Title 8 by an administrative law judge or a court of competent jurisdiction and after any appeal of such conviction is concluded, such conviction may in itself be a sufficient ground for refusal of an appraiser classification or the imposition of any sanction permitted by this chapter.

(d) Where an applicant or an appraiser has made a false statement of material fact on an application or caused to be submitted or been a party to preparing or submitting any falsified application to the board, such action may, in itself, be a sufficient ground for the refusal, suspension, or revocation of the appraiser classification.

(e) Grounds for suspension or revocation of an appraiser classification, as provided for by this chapter, shall also be grounds for refusal to grant an appraiser classification.

(f) The conduct provided for in subsections (a) through (d) and subsection (h) of this Code section which relates to the denial of an appraiser classification to an applicant shall also be grounds for the imposition of any sanction permitted by this chapter when the conduct is that of an appraiser.

(g) Whenever the board initiates an investigation as provided in Code Section 43-39A-22 to determine whether an appraiser has violated any provision of this chapter or the rules and regulations adopted pursuant to this chapter and such appraiser:

(1) Surrendered or surrenders an appraiser classification to the board;

(2) Allowed or allows an appraiser classification to lapse due to failure to meet education requirements provided by law; or

(3) Allowed or allows an appraiser classification to lapse due to failure to pay any required fees,

the board may issue an order revoking such appraiser's classification. The order will shall be effective ten days after the order is served on the appraiser unless the appraiser makes a written request for a hearing before the board, in which event, the board will shall file a notice of hearing in accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' Service shall be accomplished as provided for in Code Section 43-39A-21. If such surrender or lapsing occurs after the board has filed a notice of hearing alleging that such appraiser has violated any provision of this chapter or the rules and regulations adopted pursuant to this chapter but before the board enters a final order in the matter, then upon submission of a new application by such person the matters asserted in the notice of hearing shall be deemed admitted and may be used by the board as grounds for refusal of a new appraiser classification to such person.

(h) Whenever any occupational licensing body of this state, or any other state, or any foreign country has sanctioned disciplined any license or classification of an applicant for any appraiser classification or whenever such an applicant has allowed a license or classification to lapse or has surrendered a license or classification to any occupational licensing body of this state, or any other state, or any foreign country after that occupational licensing body has initiated an investigation or a disciplinary process regarding such applicant's licensure or classification, such sanction discipline, lapsing, or surrender in itself may be a sufficient ground for refusal of an appraiser classification. Whenever any occupational licensing body of this state, or any other state, or any foreign country has revoked the license or classification of an applicant for a classification or whenever such an applicant has allowed a license or classification to lapse or has surrendered a license or classification to any occupational licensing body of this state, or any other state, or any foreign country after that body has initiated an investigation or a disciplinary process regarding such applicant's license or classification, the board may issue an appraiser classification only if:

(1) At least five years have passed since the date that the applicant's occupational registration, license, or certification was revoked or surrendered;

(2) No criminal charges are pending against the applicant at the time of application; and

(3) The applicant presents to the board satisfactory proof that the applicant now bears a good reputation for honesty, trustworthiness, integrity, and competence to transact real estate appraisal activity in such a manner as to safeguard the interests of the public.

(i) Whenever any appraiser is convicted of any offense enumerated in subsection (b) of this Code section, such appraiser must shall immediately notify the board of that conviction. Such appraiser's appraiser classification shall automatically be revoked 60 days after the conviction unless the appraiser makes a written request to the board for a hearing during that 60 day period. Following any such hearing requested pursuant to this subsection, the board in its discretion may impose upon that appraiser any sanction permitted by this chapter.

(j) Where an applicant or licensee has been found not in compliance with an order for child support as provided in Code Section 19-6-28.1 or 19-11-9.3, such action is shall be sufficient grounds for refusal of a license or suspension of a license. For purposes of this subsection, the hearing and appeal procedures provided for in such Code sections shall be the only such procedures required under this article.

(k) Where an applicant or licensee has been found to be a borrower in default who is not in satisfactory repayment status as provided in Code Section 20-3-295, such finding is shall be sufficient grounds for refusal of a license or suspension of a license. For purposes of this subsection, the hearing and appeal procedures provided for in Code Section 20-3-295 shall be the only such procedures required under this article.

(l) Where the board has previously sanctioned any applicant for a classification under Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,' such sanction may in itself be a sufficient ground for refusing the classification."

SECTION 5.

Said title is further amended by revising subsection (a) of Code Section 43-39A-18, relating to penalties for violations, unfair trade practices, and civil judgments, as follows:

"(a) In accordance with the hearing procedures established for contested cases by Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,' whenever an appraiser classification, a school approval, or an instructor approval has been obtained by false or fraudulent representation;, or whenever an appraiser, an approved school, or an approved instructor has been found guilty of a violation of this chapter, or of the rules and regulations promulgated by the board, or of any unfair trade practices, including, but not limited to, those listed in this Code section;, the board shall have the power to take any one or more of the following actions:

(1) Refuse to grant or renew a classification to an applicant;

(2) Administer a reprimand;

(3) Suspend any classification or approval for a definite period of time or for an indefinite period of time in connection with any condition that may be attached to the restoration of the classification or approval;

(4) Revoke any classification or approval;

(5) Revoke any classification issued to an appraiser and simultaneously issue such appraiser a classification with more restricted authority to conduct appraisals;

(6) Impose on an appraiser, applicant, approved school approval, or approved instructor approval monetary assessments in an amount necessary to reimburse the board for administrative, investigative, and legal costs and expenses incurred by the board in conducting any proceeding authorized under this chapter or Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act';

(7) Impose a fine not to exceed $1,000.00 for each violation of this chapter or its rules and regulations with fines for multiple violations limited to $5,000.00 in any one disciplinary proceeding or such other amount as the parties may agree;

(8) Require completion of a course of study in real estate appraisal or instruction; or

(9) Limit or restrict any classification or approval as the board deems necessary for the protection of the public.

Any action taken by the board pursuant to this subsection may, at its discretion, be construed as a 'disciplinary sanction' or 'sanction' as such terms are used in this chapter."

SECTION 6.

Said title is further amended by revising Code Section 43-39A-18.1, relating to alternative disciplinary procedures and citations, as follows:

"43-39A-18.1.

(a) It is the intent of the General Assembly to provide the board with a disciplinary tool which is an alternative measures to use as alternatives to the sanctions provided for in subsection (a) of Code Section 43-39A-18. The citation and letter of findings provided for in this Code section shall not be construed as a disciplinary sanction.

(b) Whenever the evidence gathered in an investigation reveals an apparent violation by an appraiser of this chapter, the rules and regulations promulgated by the board, or a standard of conduct, the board, in its discretion, may:

(1) initiate Initiate the process for the imposition of sanctions, as provided for in subsection (a) of Code Section 43-39A-18 and in accordance with the hearing procedures established for contested cases by Chapter 13 of Title 50, or;

(2) issue Issue a citation to the appraiser. Such citation, which shall be served personally or by mail, shall give notice to the appraiser of the alleged violation or violations of this chapter, commission rules, or standard or standards of conduct and inform the appraiser of the opportunity to request a contested case hearing to be held in accordance with the procedures established for such hearings by Chapter 13 of Title 50. A citation issued by the board may include an order to complete a course of study in real estate appraisal or instruction or to pay a fine not to exceed $1,000.00 for each violation of this chapter or its rules and regulations, with fines for multiple violations limited to $5,000.00 in any one citation, or both. If the appraiser fails to request a hearing within 30 days of the date of service of the citation, the order contained in the citation shall be final. The failure of an appraiser to comply with a final order contained in a citation may be cause for the imposition of a sanction on such person's classification, after notice and opportunity for a hearing.; or

(3) Issue a letter of findings to the appraiser if the alleged violation appears to have done no harm to a third party or to the public. Such letter of findings, which shall be served personally or by mail, shall give notice to the appraiser of the alleged violation or violations of this chapter, commission rules, or standard or standards of conduct. A letter of findings shall be confidential and shall not appear on the classification history of an appraiser. A letter of findings shall not be subject to a subpoena in a civil action, shall not constitute a public record or be available for inspection by the public, and shall not be disclosed to any person or agency, except as provided in subsection (d) of Code Section 43-39A-22.

(c) The board is authorized to promulgate rules and regulations to implement this Code section. Such rules may limit the provisions of this chapter and of its rules and regulations and standards of conduct which may be the basis for the issuance of a citation or a letter of findings."

SECTION 7.

Said title is further amended by revising subsection (d) of Code Section 43-40-2, relating to creation of commission, members, meetings, recusal for conflict of interest, removal, compensation, annual report, and budget unit, as follows:

"(d) The Governor, after giving notice and an opportunity for a hearing, may remove from office any member of the commission for any of the following:

(1) Inability to perform or neglecting to perform the duties required of members;

(2) Incompetence;

(3) Dishonest conduct; or

(4) Having a disciplinary sanction, other than a citation or a letter of findings authorized by this chapter, imposed by any professional licensing agency on such member's right to practice a trade or profession."

SECTION 8.

Said title is further amended by revising subsection (c) of Code Section 43-40-8, relating to qualifications of licensees, course of study for licensed salespersons, lapse, reinstatement, renewal, continuing education, and standards for courses, as follows:

"(c) In order to qualify to become an applicant for a broker or associate broker's license, an individual shall:

(1) Have attained the age of 21 years;

(2) Be a resident of the State of Georgia, unless that person has fully complied with the provisions of Code Section 43-40-9;

(3) Be a high school graduate or the holder of a certificate of equivalency;

(3.1) Have complied fully with the requirements of subsection (b) of Code Section 43-40-15 regarding any criminal convictions;

(4) Have maintained a license in active status for at least three of the five years immediately preceding the filing of an application to become a broker;

(5) Furnish evidence of completion of 60 instructional hours in a broker's course of study approved by the commission, provided that if licensed as a community association manager, the applicant shall furnish evidence of completion of an additional 75 instructional hours in courses or a course of study approved by the commission; and

(6) Stand and pass a real estate examination administered by or approved by the commission covering generally the matters confronting real estate brokers after completing the requirements of paragraph (5) of this subsection and after serving at least two years of active licensure maintaining a license in active status for at least three of the five years immediately preceding such examination.

Failure to meet any of these requirements shall be grounds for denial of license without a hearing."

SECTION 9.

Said title is further amended by revising Code Section 43-40-15, relating to grant, revocation, or suspension of licenses, other sanctions, surrender or lapse, conviction, noncompliance with child support order, and borrowers in default, as follows:

"43-40-15.

(a) Licenses shall be granted only to persons who bear a good reputation for honesty, trustworthiness, integrity, and competence to transact the business of a licensee in such manner as to safeguard the interest of the public and only after satisfactory proof of such qualifications has been presented to the commission. The commission may deny a license to a corporation, limited liability company, or partnership if a stockholder, member, or partner or any combination thereof which owns more than a 20 percent interest therein does not bear a good reputation for honesty, trustworthiness, and integrity; has been convicted of any of the crimes enumerated in subsection (b) of this Code section; or has been sanctioned disciplined by any legally constituted regulatory agency for violating a law regulating the sale of real estate.

(b)(1) As used in this Code section, the term:

(B) 'Felony' includes means any offense which, if committed in this state, would be deemed a felony, without regard to its designation elsewhere committed:

(i) Within this state and deemed a felony under the laws of this state or under the laws of the United States; or

(ii) In another state and deemed a felony under the laws of that state or the laws of the United States.

(A) Such person has satisfied all terms and conditions of any conviction such person may have had before making application for licensure or approval;, provided that if such individual has multiple convictions, at least five years shall have passed since the individual satisfied all terms and conditions of any sentence imposed for the last conviction before making application for licensure or approval; and provided, further, that if such individual has been convicted of a single felony or of a single crime of moral turpitude, at least two years shall have passed since the individual satisfied all terms and conditions of any sentence imposed for the last conviction before making application for licensure or approval;

(2) Where an applicant for any license or approval authorized by this chapter has been convicted of forgery, embezzlement, obtaining money under false pretenses, theft, extortion, conspiracy to defraud, or other like offense or offenses or has been convicted of a felony, a sex sexual offense, a probation violation, or a crime involving moral turpitude and has been convicted thereof in a court of competent jurisdiction of this state or any other state, district, or territory of the United States or of a foreign country such conviction in itself may be sufficient ground for refusal of a license or approval authorized by this chapter. An applicant for licensure as an associate broker or a broker who has been convicted of any offense enumerated in this paragraph may be licensed by the commission as an associate broker or a broker only if:

(A) At least ten years have passed since the applicant was convicted, sentenced, or released from any incarceration, whichever is later;

(B) No criminal charges are pending against the applicant; and

(C) The applicant presents to the commission satisfactory proof that the applicant now bears a good reputation for honesty, trustworthiness, integrity, and competence to transact the business of a licensee in such a manner as to safeguard the interest of the public.

(c) Where an applicant or licensee has been found guilty of a violation of the federal fair housing law or Article 4 of Chapter 3 of Title 8 by an administrative law judge or a court of competent jurisdiction and after any appeal of such conviction is concluded, such conviction may in itself be a sufficient ground for refusal of a license or the imposition of any sanction permitted by this chapter.

(d) Where an applicant or licensee has made a false statement of material fact on his or her application or caused to be submitted or been a party to preparing or submitting any falsified application to the commission, such action may, in itself, be a sufficient ground for the refusal, suspension, or revocation of the license.

(e) Grounds for suspension or revocation of a license, as provided for by this chapter, shall also be grounds for refusal to grant a license.

(f) The conduct provided for in subsections (a), (b), (c), (d), and (h) of this Code section which relates to the denial of a real estate license to an applicant shall also be grounds for imposition of any sanction permitted by this chapter when the conduct is that of a licensee.

(g) Whenever the commission initiates an investigation as permitted by Code Section 43-40-27 to determine whether a licensee has violated any provision of this chapter or its rules and regulations and such licensee has:

(1) Surrendered or voluntarily surrenders the license to the commission;

(2) Allowed or allows the license to lapse due to failure to meet educational requirements provided by law; or

(3) Allowed or allows the license to lapse due to failure to pay any required fees,

then if such surrender or lapsing takes place after before the commission has filed a notice of hearing alleging that such licensee has violated any provision of this chapter or its rules and regulations, but before the commission enters a final order in the matter, then upon submission of a new application by such licensee the matters asserted in the notice of hearing shall be deemed admitted and may be used by the commission as grounds for refusal of a new license to such licensee. If such surrender or lapsing takes place prior to the commission's filing of a notice of hearing, but after the commission initiates an investigation as permitted by Code Section 43-40-27, then the commission may issue an order revoking such licensee's license. Such order of revocation shall be final ten days after it is issued unless the licensee named in the order requests a hearing before the commission. If such licensee requests a hearing, the commission shall file a notice of hearing and provide a hearing for such licensee in accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' the commission may issue an order revoking such licensee's license. The order shall be effective ten days after the order is served on the licensee unless the licensee makes a written request for a hearing before the commission, in which event, the commission shall file a notice of hearing in accordance with Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act.' Service shall be accomplished as provided for in Code Section 43-40-26.

(h) Whenever any occupational licensing body of this state, or any other state, or any foreign country has sanctioned disciplined the license of an applicant for any license authorized by this chapter or whenever such an applicant has allowed a license to lapse or has surrendered a license to any occupational licensing body of this state, or any other state, or any foreign country after that body has initiated an investigation or a disciplinary process regarding such applicant's license, such sanction discipline, lapsing, or surrender in itself may be a sufficient ground for refusal of a license. Whenever any occupational licensing body of this state, or any other state, or any foreign country has revoked the license of an applicant for any license authorized by this chapter or whenever such an applicant has allowed a license to lapse or has surrendered a license to any occupational licensing body of this state, or any other state, or any foreign country after that body has initiated an investigation or a disciplinary process regarding such applicant's license, the commission may issue an associate broker's or a broker's license only if:

(1) At least ten years have passed since the date that the applicant's occupational license was revoked or surrendered;

(2) No criminal charges are pending against the applicant at the time of application; and

(3) The applicant presents to the commission satisfactory proof that the applicant now bears a good reputation for honesty, trustworthiness, integrity, and competence to transact the business of a licensee in such a manner as to safeguard the interest of the public.

(i) Whenever any licensee is convicted of any offense enumerated in subsection (b) of this Code section, the licensee must shall immediately notify the commission of that conviction. The licensee's license shall automatically be revoked 60 days after the licensee's conviction unless the licensee makes a written request to the commission for a hearing during that 60 day period. Following any such hearing requested pursuant to this subsection, the commission in its discretion may impose upon that licensee any sanction permitted by this chapter.

(j) Whenever the commission revokes or suspends the license of a community association manager, a salesperson, an associate broker, or a broker, then any school or instructor approval which such licensee holds shall also be revoked or suspended. Whenever a licensee surrenders a real estate license as provided for in subsection (g) of this Code section, any school or instructor approval which such licensee holds shall also be subject to the provisions of subsection (g) of this Code section.

(k) Where an applicant or licensee has been found not in compliance with an order for child support as provided in Code Section 19-6-28.1 or 19-11-9.3, such action is shall be sufficient grounds for refusal of a license or suspension of a license. In such actions, the hearing and appeal procedures provided for in those Code sections shall be the only such procedures required under this chapter.

(l) Where an applicant or licensee has been found to be a borrower in default who is not in satisfactory repayment status as provided in Code Section 20-3-295, such status is shall be sufficient grounds for refusal of a license or suspension of a license. In such cases, the hearing and appeal procedures provided for in Code Section 20-3-295 shall be the only such procedures required under this chapter.

(m) Where the commission has previously sanctioned any applicant for a license under Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,' such sanction may in itself be a sufficient ground for refusing the license."

SECTION 10.

Said title is further amended by revising subsection (b) of Code Section 43-40-22, relating to real estate education, research, and recovery fund, revocation of license upon court order for payment from fund, and subrogation, as follows:

"(b) The commission shall maintain a minimum balance of $1 million in the real estate education, research, and recovery fund from which any person, except bonding companies when they are not principals in a real estate transaction, aggrieved by an act, representation, transaction, or conduct of a licensee which is in violation of this chapter or of the rules and regulations of the commission promulgated pursuant thereto, may recover, by order of any court having competent jurisdiction, actual or compensatory damages, not including interests and costs sustained by the act, representation, transaction, or conduct, provided that nothing shall be construed to obligate the fund for more than $15,000.00 $25,000.00 per transaction regardless of the number of persons aggrieved or parcels of real estate involved in such transaction. In addition:

(1) The liability of the fund for the acts of a licensee, when acting as such, is terminated upon the issuance of court orders authorizing payments from the fund for judgments, or any unsatisfied portion of judgments, in an aggregate amount of $45,000.00 $75,000.00 on behalf of such licensee;

(2) A licensee acting as a principal or agent in a real estate transaction has no claim against the fund; and

(3) No person who establishes a proper claim or claims under this Code section shall ever obtain more than $15,000.00 $25,000.00 from the fund."

SECTION 11.

Said title is further amended by revising subsection (d) of Code Section 43-40-22, relating to real estate education, research, and recovery fund, revocation of license upon court order for payment from fund, and subrogation, as follows:

"(d)(1) No action for a judgment which subsequently results in an order for collection from the real estate education, research, and recovery fund shall be started later than two years from the accrual of the cause of action thereon. When any aggrieved person commences action for a judgment which may result in collection from the real estate education, research, and recovery fund, the aggrieved person shall notify the commission in writing, by certified mail or statutory overnight delivery, return receipt requested, to this effect at the time of the commencement of such action. The commission shall have the right to intervene in and defend any such action.

(2) When any aggrieved person recovers a valid judgment in any court of competent jurisdiction against any licensee for any act, representation, transaction, or conduct which is in violation of this chapter, or of the regulations promulgated pursuant thereto, which act occurred on or after July 1, 1973, the aggrieved person may, upon termination of all proceedings, including reviews and appeals in connection with the judgment, file a verified claim in the court in which the judgment was entered and, upon ten 30 days' written notice to the commission, may apply to the court for an order directing payment out of the real estate education, research, and recovery fund of the amount unpaid upon the judgment, subject to the limitations stated in this Code section. The commission shall have the right to intervene in and object to such verified claim on the issue of whether or not the claim was in violation of this chapter or of the rules and regulations of the commission promulgated pursuant thereto.

(3) The court shall proceed upon such application in a summary manner and, upon the hearing thereof, the aggrieved person shall be required to show that such person:

(A) At the time of the cause of action, was not a spouse of the judgment debtor; or a parent, sibling, or child of the judgment debtor or the judgment debtor's spouse; or the personal representative of such person or persons;

(B) Has complied with all the requirements of this Code section;

(C) Has obtained a judgment, as set out in paragraph (2) of this subsection, stating the amount thereof and the amount owing thereon at the date of the application; and that, in such action, the aggrieved person had joined any and all bonding companies which issued corporate surety bonds to the judgment debtors as principals and all other necessary parties;

(D) Has caused to be issued a writ of execution upon such judgment and the officer executing the same has made a return showing that no personal or real property of the judgment debtor liable to be levied upon in satisfaction of the judgment could be found or that the amount realized on the sale of them or of such of them as were found, under such execution, was insufficient to satisfy the judgment, stating the amount so realized and the balance remaining due to the judgment after application thereon of the amount realized;

(E) Has caused the judgment debtor to make discovery under oath concerning the judgment debtor's property, in accordance with Chapter 11 of Title 9, the 'Georgia Civil Practice Act';

(F) Has made all reasonable searches and inquiries to ascertain whether the judgment debtor is possessed of real or personal property or other assets liable to be sold or applied in satisfaction of the judgment;

(G) Has discovered by such search no personal or real property or other assets liable to be sold or applied or that certain of them, being described, owned by the judgment debtor and liable to be so applied have been discovered and that the aggrieved person has taken all necessary action and proceedings for the realization thereof and that the amount thereby realized was insufficient to satisfy the judgment, stating the amount so realized and the balance remaining due on the judgment after application of the amount realized; and

(H) Has applied the following items, if any, as recovered by the aggrieved person, to the actual or compensatory damages awarded by the court:

(i) Any amount recovered from the judgment debtor or debtors;

(ii) Any amount recovered from the bonding company or companies; or

(iii) Any amount recovered in out-of-court settlements as to particular defendants.

(4) Whenever the aggrieved person satisfies the court that it is not practical to comply with one or more of the requirements enumerated in subparagraphs (D), (E), (F), (G), and (H) of paragraph (3) of this subsection and that the aggrieved person has taken all reasonable steps to collect the amount of the judgment or the unsatisfied part thereof and has been unable to collect the same, the court may, in its discretion, dispense with the necessity for complying with such requirements.

(5) The court shall make an order directed to the commission requiring payment from the real estate education, research, and recovery fund of whatever sum it shall find to be payable upon the claim, pursuant to the provisions of and in accordance with the limitations contained in this Code section, if the court is satisfied, upon the hearing, of the truth of all matters required to be shown by the aggrieved person by paragraph (3) of this subsection and is satisfied that the aggrieved person has fully pursued and exhausted all remedies available to him or her for recovering the amount awarded by the judgment of the court.

(6) Should the commission pay from the real estate education, research, and recovery fund any amount in settlement of a claim or toward satisfaction of a judgment against a licensee, the license of such licensee shall be automatically revoked upon the issuance of a court order authorizing payment from the real estate education, research, and recovery fund. If such license is that of a firm, the license of the qualifying broker of the firm shall automatically be revoked upon the issuance of a court order authorizing payment from the real estate education, research, and recovery fund. No such licensee shall be eligible to receive a new license until such licensee has repaid in full, plus interest at the judgment rate in accordance with Code Section 7-4-12, the amount paid from the real estate education, research, and recovery fund on such licensee's account. A discharge in bankruptcy shall not relieve a person from the penalties and disabilities provided in this subsection.

(7) If, at any time, the money deposited in the real estate education, research, and recovery fund is insufficient to satisfy any duly authorized claim or portion thereof, the commission shall, when sufficient money has been deposited in the real estate education, research, and recovery fund, satisfy such unpaid claims or portions thereof in the order that such claims or portions thereof were originally filed, plus accumulated interest at the rate of 4 percent a year."

SECTION 12.

Said title is further amended by revising subsection (a) of Code Section 43-40-25, relating to violations by licensees, schools, and instructors, sanctions, and unfair trade practices, as follows:

"(a) In accordance with the hearing procedures established for contested cases by Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act,' whenever a license, a school approval, or an instructor approval has been obtained by false or fraudulent representation;, or whenever a licensee, an approved school, or an approved instructor has been found guilty of a violation of this chapter, or of the rules and regulations promulgated by the commission, or of any unfair trade practices, including, but not limited to, those listed in this Code section;, the commission shall have the power to take any one or more of the following actions:

(1) Refuse to grant or renew a license to an applicant;

(2) Administer a reprimand;

(3) Suspend any license or approval for a definite period of time or for an indefinite period of time in connection with any condition that may be attached to the restoration of the license or approval;

(4) Revoke any license or approval;

(5) Revoke the license of a broker, qualifying broker, or associate broker and simultaneously issue such licensee a salesperson's license;

(6) Impose on a licensee, applicant, approved school approval, or approved instructor approval monetary assessments in an amount necessary to reimburse the commission for the administrative, investigative, and legal costs and expenses incurred by the commission in conducting any proceeding authorized under this chapter or Chapter 13 of Title 50, the 'Georgia Administrative Procedure Act';

(8) Require completion of a course of study in real estate brokerage or instruction;

(9) Require the filing of periodic reports by an independent accountant on a real estate broker's designated trust account; or

(10) Limit or restrict any license or approval as the commission deems necessary for the protection of the public.

Any action taken by the commission pursuant to this subsection may, at its discretion, be construed as a 'disciplinary sanction' or 'sanction' as such terms are used in this chapter."

SECTION 13.

Said title is further amended by revising subsection (c) of Code Section 43-40-25, relating to violations by licensees, schools, and instructors, sanctions, and unfair trade practices, as follows:

"(c) When a licensee has previously been sanctioned by the commission or disciplined by any other state's real estate brokerage licensing authority, the commission may consider any such prior sanctions or disciplinary actions by another state's real estate brokerage licensing authority in determining the severity of a new sanction which may be imposed upon a finding that the licensee has committed an unfair trade practice, that the licensee has violated any provision of this chapter, or that the licensee has violated any of the rules and regulations of the commission. The failure of a licensee to comply with or to obey a final order of the commission may be cause for suspension or revocation of the individual's license after opportunity for a hearing."

SECTION 14.

Said title is further amended by revising Code Section 43-40-25.2, relating to alternative disciplinary procedures and citations, as follows:

"43-40-25.2.

(a) It is the intent of the General Assembly to provide the commission with a disciplinary tool which is an alternative measures to use as alternatives to the sanctions provided for in subsection (a) of Code Section 43-40-25. The citation and letter of findings provided for in this Code section shall not be construed as a disciplinary sanction.

(b) Whenever the evidence gathered in an investigation reveals an apparent violation of this chapter or of the rules and regulations promulgated by the commission or the apparent commission of any unfair trade practice by a licensee, the commission, in its discretion, may:

(1) initiate Initiate the process for the imposition of sanctions, as provided for in subsection (a) of Code Section 43-40-25 and in accordance with the hearing procedures established for contested cases by Chapter 13 of Title 50, or;

(2) issue Issue a citation to the licensee. Such citation, which shall be served personally or by mail, shall give notice to the licensee of the alleged violation or violations of this chapter or commission rules or alleged unfair trade practice or practices and inform the licensee of the opportunity to request a contested case hearing to be held in accordance with the procedures established for such hearings by Chapter 13 of Title 50. A citation issued by the commission may include an order to complete a course of study in real estate brokerage or instruction; to file periodic reports by an independent accountant on a real estate broker's designated trust account; or to pay a fine not to exceed $1,000.00 for each violation of this chapter or its rules and regulations, with fines for multiple violations limited to $5,000.00 in any one citation, or a combination of the above. If the licensee fails to request a hearing within 30 days of the date of service of the citation, the order contained in the citation shall be final. The failure of a licensee to comply with a final order contained in a citation may be cause for the imposition of a sanction on such person's license, after notice and opportunity for a hearing.; or

(3) Issue a letter of findings to the licensee if the alleged violation appears to have done no harm to a third party or to the public. Such letter of findings, which shall be served personally or by mail, shall give notice to the licensee of the alleged violation or violations of this chapter or commission rules or alleged unfair trade practice or practices. A letter of findings shall be confidential and shall not appear on the license history of a licensee. A letter of findings shall not be subject to a subpoena in a civil action, shall not constitute a public record or be available for inspection by the public, and shall not be disclosed to any person or agency, except as provided in subsection (d) of Code Section 43-40-27.

(c) The commission is authorized to promulgate rules and regulations to implement this Code section. Such rules may limit the provisions of this chapter and of its rules and regulations and unfair trade practices which may be the basis for the issuance of a citation or a letter of findings."

SECTION 15.

Code Section 44-14-13 of the Official Code of Georgia Annotated, relating to disbursement of settlement proceeds, is amended by revising paragraph (10) of subsection (a) and subsections (b) and (e) and by adding two new subsections (f) and (g) to read as follows:

"(10) 'Settlement agent' means the person lender or an active member of the State Bar of Georgia responsible for conducting the settlement and disbursement of the settlement proceeds and includes any individual, corporation, partnership, or other entity conducting the settlement and disbursement of the loan funds."

"(b) This Code section applies shall apply only to transactions involving purchase money loans made by a lender, or loans made to refinance, directly or indirectly, a purchase money loan made by another lender refinance loans made by the current or a new lender, which loans will be secured by deeds to secure debt or mortgages on real estate within the State of Georgia containing not more than four residential dwelling units, whether or not such deeds to secure debt or mortgages have a first-priority status."

"(e) Any party violating this Code section shall be liable to any other party suffering a loss due to such violation for such other party's actual damages plus reasonable attorneys' fees. In addition, any party violating this Code section shall pay to the borrower party suffering the loss an amount of money equal to $1,000.00 or double the amount of interest payable on the loan for the first 60 days after the loan closing, whichever is greater.

(f) Any individual, corporation, partnership, or other entity conducting the settlement and disbursement of loan funds, when he, she, or it is not the settlement agent, shall be guilty of a misdemeanor.

(g) Nothing contained in this Code section shall prevent a real estate broker or real estate salesperson from exercising the rights and providing the duties and services specified by Chapter 40 of Title 43."

SECTION 16.

All laws and parts of laws in conflict with this Act are repealed.