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The Florida Senate

2022 Florida Statutes (including 2022C, 2022D, 2022A, and 2023B)

Title XXXIII REGULATION OF TRADE, COMMERCE, INVESTMENTS, AND SOLICITATIONS
Chapter 494 LOAN ORIGINATORS AND MORTGAGE BROKERS Entire Chapter
SECTION 00115
Exemptions.
F.S. 494.00115
494.00115 Exemptions.—
(1) The following are exempt from regulation under this part and parts II and III of this chapter.
(a) Any person operating exclusively as a registered loan originator in accordance with the S.A.F.E. Mortgage Licensing Act of 2008.
(b) A depository institution; subsidiaries that are owned and controlled by a depository institution and regulated by the Board of Governors of the Federal Reserve System, the Comptroller of the Currency, the Director of the Office of Thrift Supervision, the National Credit Union Administration, or the Federal Deposit Insurance Corporation; or institutions regulated by the Farm Credit Administration.
(c) The Federal National Mortgage Association; the Federal Home Loan Mortgage Corporation; any agency of the Federal Government; any state, county, or municipal government; or any quasi-governmental agency that acts in such capacity under the specific authority of the laws of any state or the United States.
(d) An attorney licensed in this state who negotiates the terms of a mortgage loan on behalf of a client as an ancillary matter to the attorney’s representation of the client.
(e) A person involved solely in the extension of credit relating to the purchase of a timeshare plan, as that term is defined in 11 U.S.C. s. 101(53D).
(f) A person who performs only real estate brokerage activities and is licensed or registered in this state under part I of chapter 475, unless the person is compensated by a lender, a mortgage broker, or other loan originator or by an agent of such lender, mortgage broker, or other loan originator. The term “real estate brokerage activity” has the same meaning as in the federal Secure and Fair Enforcement for Mortgage Licensing Act of 2008.
(2)(a) A securities dealer, an investment advisor, or an associated person registered under s. 517.12 is exempt from regulation under this part and part II of this chapter if such person, in the normal course of conducting securities business with a corporate or an individual client:
1. Solicits or offers to solicit a mortgage loan from a securities client or refers a securities client to an entity exempt under paragraph (1)(b), a licensed mortgage broker, a licensed mortgage lender, or a registered loan originator; and
2. Does not accept or offer to accept an application for a mortgage loan, negotiate or offer to negotiate the terms or conditions of a new or existing mortgage loan on behalf of a borrower or lender, or negotiate or offer to negotiate the sale of an existing mortgage loan to a noninstitutional investor for compensation or gain.
(b) Any solicitation or referral made pursuant to this subsection must comply with chapter 517; the federal Real Estate Settlement Procedures Act, 12 U.S.C. ss. 2601 et seq.; and any applicable federal law or general law of this state.
(3) The following persons are exempt from regulation under part III of this chapter:
(a) A person acting in a fiduciary capacity conferred by the authority of a court.
(b) A person who, as a seller of his or her own real property, receives one or more mortgages in a purchase money transaction.
(c) A person who acts solely under contract and as an agent for federal, state, or municipal agencies for the purpose of servicing mortgage loans.
(d) A person who makes only nonresidential mortgage loans and sells loans only to institutional investors.
(e) An individual making or acquiring a mortgage loan using his or her own funds for his or her own investment, and who does not hold himself or herself out to the public as being in the mortgage lending business.
(f) An individual selling a mortgage that was made or purchased with that individual’s funds for his or her own investment, and who does not hold himself or herself out to the public as being in the mortgage lending business.
(4) It is not necessary to negate any of the exemptions provided in this section in any complaint, information, indictment, or other writ or proceeding brought under this chapter. The burden of establishing the right to an exemption is on the party claiming the benefit of the exemption.
(5) As used in this section, the term “hold himself or herself out to the public as being in the mortgage lending business” includes any of the following:
(a) Representing to the public, through advertising or other means of communicating or providing information, including the use of business cards, stationery, brochures, signs, rate lists, or promotional items, by any method, that such individual can or will perform the activities described in s. 494.001(24).
(b) Soliciting in a manner that would lead the intended audience to reasonably believe that such individual is in the business of performing the activities described in s. 494.001(24).
(c) Maintaining a commercial business establishment at which, or premises from which, such individual regularly performs the activities described in s. 494.001(24) or regularly meets with current or prospective mortgage borrowers.
(d) Advertising, soliciting, or conducting business through the use of a name, trademark, service mark, trade name, Internet address, or logo that indicates or reasonably implies that the business being advertised, solicited, or conducted is of the kind or character of business transacted or conducted by a licensed mortgage lender or is likely to lead any person to believe that such business is that of a licensed mortgage lender.
History.—s. 4, ch. 2009-241; s. 3, ch. 2011-71; s. 1, ch. 2018-44; s. 2, ch. 2018-61.