DEPARTMENT OF REGULATORY AGENCIES
DIVISION OF REAL ESTATE
BOARD OF MORTGAGE LOAN ORIGINATORS
4 CCR 725-3

NOTICE OF PROPOSED PERMANENT RULEMAKING HEARING
November 14, 2012

CHAPTER 7:	DECLARATORY ORDERS PURSUANT TO SECTION 24-4-105(11), C.R.S.

Pursuant to and in compliance with Title 12, Article 61 and Title 24, Article 4, C.R.S. as amended, notice of proposed rulemaking is hereby given, including notice to the Attorney General of the State of Colorado and to all persons who have requested to be advised of the intention of the Colorado Board of Mortgage Loan Originators (the “Board”) to promulgate rules, or to amend, repeal or repeal and re-enact the present rules of the Board.

STATEMENT OF BASIS

The statutory basis for the rules titled Rules of the Board of Mortgage Loan Originators is Part 9 of Title 12, Article 61, Colorado Revised Statutes, as amended.  

STATEMENT OF PURPOSE

The purpose of this rule is to effectuate the legislative directive to promulgate necessary and appropriate rules in conformity with the state statutes of the mortgage loan originator licensing and mortgage company registration act.

SPECIFIC PURPOSE OF THIS RULEMAKING

The purpose of these rules is to create a procedure in which individuals may seek declaratory orders from the Board for purposes of terminating controversies or remove uncertainties regarding the applicability of any statutory provision, rule or order of the Board. The rules ensure compliance with the requirements set forth in the Administrative Procedure Act. 

Proposed New, Amended and Repealed Rules

[Deleted material shown struck through, new material shown ALL CAPS. Rules, or portions of rules, which are unaffected are reproduced.  Readers are advised to obtain a copy of the complete rules of the Board at www.dora.state.co.us/real-estate/.

CHAPTER 7:	DECLARATORY ORDERS PURSUANT TO SECTION 24-4-105(11), C.R.S.

7.1 Any person may petition the Board for a declaratory order to terminate controversies or to remove uncertainties as to the applicability to the petitioner of any statutory provisions or of any rule or order of the Board.
7.2 The Board will determine, in its discretion and without prior notice to petitioner, whether to entertain any such petition.  If the Board decides that it will not entertain such a petition, the Board shall promptly notify the petitioner in writing of its decision and the reasons for that decision.  A copy of the order shall be provided to the petitioner.
7.3 In determining whether to entertain a petition filed pursuant to this rule, the Board may consider the following matters, among others:
A.  Whether a ruling on the petition will terminate a controversy or remove uncertainties as to the applicability to petitioner of any statutory provision or rule or order of the Board. 
B.  Whether the petition involves any subject, question or issue which is the subject of a formal or informal matter or investigation currently pending before the Board or a court involving one or more of the petitioners.
C.  Whether the petition involves any subject, question or issue which is the subject of a formal or informal matter or investigation currently pending before the Board or a court but not involving any petitioner.
D.  Whether the petition seeks a ruling on a moot or hypothetical question or will result in an advisory ruling or opinion.
E.  Whether the petitioner has some other adequate legal remedy, other than an action for declaratory relief pursuant to Rule 57, C.R.C.P., which will terminate the controversy or remove any uncertainty as to the applicability to the petitioner of the statute, rule or order in question.
7.4 Any petition filed pursuant to this rule shall set forth the following:
A.  The name and address of the petitioner and whether the petitioner holds a license or registration issued pursuant to Section 12-61-901 et. seq. C.R.S. (as amended).
B.  The statute, rule or order to which the petition relates.
C.  A concise statement of all of the facts necessary to show the nature of the controversy or uncertainty and the manner in which the statute, rule or order in question applies or potentially applies to the petitioner.
D.  A concise statement of the legal authorities if any, and such other reasons upon which the petitioner relies.
E.	A concise statement of the declaratory order sought by the petitioner. 
7.5 If the Board determines that it will rule on the petition, the following procedures shall apply:
A.  The Board may rule upon the petition without a hearing.  In such case:
1.  The Board may dispose of the petition on the sole basis of the matters set forth in the petition.
2.	The Board may request the petitioner to submit additional facts in writing.  In such event, such additional facts will be considered as an amendment to the petition.  
3.	Any ruling of the Board will apply only to the extent of the facts presented in the petition and any amendment to the petition.  
4.   The Board may order the petitioner to file a written brief, memorandum or statement of position based on the facts set forth in the petition and any AMENDMENT TO THE PETITION.  
5.  The Board may take administrative notice of facts pursuant to the Administrative Procedures Act, Section 24-4-105(8), C.R.S. (as amended), and may utilize its experience, technical competence and specialized knowledge in the disposition of the petition.
6.   If the Board rules upon the petition without hearing, it shall promptly notify the petitioner in writing of its decision.
B.  The Board may, in its discretion, set the petition for hearing, upon due notice to petitioner, for the purpose of obtaining additional facts or information or to determine the truth of any facts set forth in the petition or to hear oral argument on the petition.  The notice to the petitioner setting such hearing shall set forth, to the extent known, the factual or other matters into which the Board intends to inquire and whether the hearing will be evidentiary or non-evidentiary in nature.  For the purpose of such a hearing, to the extent necessary, the petitioner shall have the burden of proving all of the facts stated in the petition, all of the facts necessary to show the nature of the controversy or uncertainty and the manner in which the statute, rule or order in question applies or potentially applies to the petitioner and any other facts the petitioner desires the Board to consider.
7.6 The parties to any proceeding pursuant to this rule shall be the Board and the petitioner.  Any other person may seek leave of the Board to intervene in such a proceeding, and leave to intervene shall be granted at the sole discretion of the Board.  A petition to intervene shall set forth the same matters as required by section 7.4 of this Rule.  Any reference to a “petitioner” in this Rule also refers to any person who has been granted leave to intervene by the Board.
7.7 Any declaratory order or other order disposing of a petition pursuant to this Rule shall constitute agency action subject to judicial review pursuant to Section 24-4-106, C.R.S. (as amended).

A hearing on the above subject matter will be held on Wednesday, November 14, 2012, at the Colorado Division of Real Estate, 1560 Broadway, Suite 1250A, Denver, Colorado 80202 beginning at 9:00 a.m. 

Any interested person may participate in the rule making through submission of written data, views and arguments to the Division of Real Estate.  Persons are requested to submit data, views and arguments to the Division of Real Estate in writing no less than ten (10) days prior to the hearing date and time set forth above. However, all data, views and arguments submitted prior to or at the rulemaking hearing or prior to the closure of the rulemaking record (if different from the date and time of hearing), shall be considered.

Please be advised that the rule being considered is subject to further changes and modifications after public comment and formal hearing.