N.Y. Comp. Codes R. & Regs. Tit. 3 § 410.17 - Consultants, employees and independent contractors of licensed mortgage bankers and registered mortgage brokers

(a) The term consultant shall mean an individual or entity involved in advising or directing management, performing management functions, or providing services to management of a licensed mortgage banker or registered mortgage broker on matters relating to the operation of the company, or an individual or entity that receives compensation, either directly or indirectly, from the licensed or registered entity, for advising potential applicants or borrowers with regard to the making of a mortgage loan. An individual or entity may be deemed a consultant regardless of whether that person or entity is receiving compensation. Consultant shall not include:

(1) an individual who is a W-2 employee of a licensee or registrant; or

(2) an individual with a professional license issued by this State or another state including, but not limited to, attorneys, accountants, real estate agents and appraisers, provided that the services provided by such individual to the licensee or registrant are the services for which such individual has a professional license; or

(3) an individual who is employed by an entity that is regulated by any local, State or Federal regulatory agency; or

(4) any 1099 independent contractor or other outside contractor that does not provide mortgage related services.

(b) The term employee shall mean any individual performing a service for either a mortgage broker, or mortgage banker for whom such entity would be liable for withholding taxes pursuant to title 26 of the United States Code.

(c) The term independent contractor shall mean any individual engaged in regulated activities as an independent contractor pursuant to title 26 of the United States Code on behalf of either a mortgage broker, or mortgage banker.

(d) Applicants for a license to engage in the business of mortgage banking and applicants for registration as a mortgage broker shall provide a list of its consultants at the time of application. A list of consultants must be filed with the superintendent by the licensee or registrant in such form as may be prescribed within 10 days of commencement of retainment. In addition, notification of the termination of any consultant shall be made to the superintendent within 10 days of such termination.

(e) An undertaking of accountability for each independent contractor must be filed with the superintendent by the licensee or registrant in such form as may be prescribed within 10 days of commencement of retainment. In addition, notification of the termination of any independent contractor shall be made to the superintendent within 10 days of such termination.

Notes

N.Y. Comp. Codes R. & Regs. Tit. 3 § 410.17