3
In giving meaning to those undefined terms, the Department must consider Arizona mortgage laws in
their entirety before reaching a reasonable reading of what the law allows or prohibits.
3
The Department
concludes “employs” in A.R.S. § 6-991.04(B)
does not constitute only a W-2 employment relationship.
Such a narrow reading would create a direct conflict with a key compensation and licensing provision of
Arizona’s mortgage statutes.
4
For example, AZ Mortgage Lenders “shall not pay compensation to,
contract with or employ as an independent contractor” a person not licensed under any of the mortgage
statutes in Title 6, Chapter 9, such as an unlicensed loan originator. A.R.S. §§ 6-909(B) and 6-947(B)
.
Accordingly, this strongly suggests an AZ Mortgage Lender who pays compensation to and employs an
Arizona-licensed loan originator as an independent contractor would not violate this statutory provision.
The Department therefore interprets the above statutory use of “employed,” “employs,” “employer,”
“hired”, and “employing” to include hiring employees
5
under both W-2 and independent contractor
scenarios.
6
Furthermore, interpreting Arizona mortgage laws to require all AZ Mortgage Lenders to employ and
compensate Arizona-licensed loan originators only on a W-2 basis would create an inequitable and absurd
result.
7
As noted previously, Arizona mortgage laws expressly contemplate that loan processors and
underwriters may work and receive compensation as independent contractors if licensed as loan
originators. Interpreting the statutes to allow only a W-2 employment scenario for licensees performing
actual loan origination would create an absurd result where one type of person (loan processors) can be
employed as an independent contractor if licensed but another type of person required to have the same
license (loan originators) cannot, even though they are subject to the same regulatory requirements.
Accordingly, no basis exists to interpret Arizona mortgage laws as restricting AZ Mortgage Lenders from
hiring some employees as independent contractors but not others when both categories of employees
maintain the same license.
3
See Stambaugh v. Killian, 398 P.3d 574, 575 (Ariz. 2017) (statutory language must be read in context with
other provisions or relevant statutes and statute as a whole should be considered when construing
specific provisions); Ariz. Cannabis Nurses Ass’n v. Ariz. Dep’t of Health Servs., 392 P.3d 506, 512 (Ariz.
App. 2017) (agencies may take action that can be reasonably implied from the statutory scheme as a
whole).
4
See Welch-Doden v. Robert, 202 Ariz. 201 (Ariz. App. 2002) (statutes should be interpreted in a way that
promotes consistency, harmony, and function).
5
Although “employee” is not an operative term found in A.R.S. §§ 6-991.03(A), 6-991.02(M), or 6-
991.04(B), both W-2 and independent contractor employees are contemplated under Arizona’s mortgage
statutory framework. For example, a general Department rule (A.A.C. R20-4-102(13)) describes an
“employee” in a W-2 employment scenario but loan processors and underwriters (statutorily defined as
“employees” under A.R.S. § 6-991(13)) can be independent contractors under A.R.S. § 6-991.02(P) if such
individual maintains a loan originator license and is employed by a licensed mortgage lender.
6
See Kobald v. Aetna Life Ins. Co., 239 Ariz. 259, 262 (App. 2016) (if a statute is silent on a specific issue,
the relevant inquiry is whether the agency’s interpretation is reasonable and that statutory ambiguities
will be resolved within the bounds of reasonable interpretations).
7
See France v. ICA, No. CV-20-0068-PR, slip op. at 5, 12 (Ariz. Sup. Ct. 2021) (statutes should not be
construed in a manner that produces absurd results); State v. Harris, 234 Ariz. 343 (Ariz. 2014) (statutes
should be construed sensibly to avoid reaching an absurd conclusion).