Florida Senate - 2011                        COMMITTEE AMENDMENT
       Bill No. CS for SB 1316
       
       
       
       
       
       
                                Barcode 594020                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/13/2011           .                                
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       The Committee on Budget Subcommittee on General Government
       Appropriations (Diaz de la Portilla) recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Subsections (14), (25), and (26) of section
    6  494.001, Florida Statutes, are amended, new subsections (5),
    7  (11), and (17) are added to that section, present subsections
    8  (5) through (9) are renumbered as subsections (6) through (10),
    9  respectively, present subsections (10) through (14) are
   10  renumbered as subsections (12) through (16), respectively,
   11  present subsections (15) through (24) are renumbered as
   12  subsections (18) through (27), respectively, and present
   13  subsections (26) through (34) are renumbered as subsections (28)
   14  through (36), respectively, to read:
   15         494.001 Definitions.—As used in ss. 494.001-494.0077, the
   16  term:
   17         (5) “Contract loan processor” means an individual who is
   18  licensed under part II of this chapter as a loan originator, who
   19  is an independent contractor for a mortgage broker or mortgage
   20  lender, and who engages only in loan processing.
   21         (11) “In-house loan processor” means an individual who is
   22  an employee of a mortgage broker or a mortgage lender who
   23  engages only in loan processing.
   24         (16)(14) “Loan originator” means an individual who,
   25  directly or indirectly, solicits or offers to solicit a mortgage
   26  loan, accepts or offers to accept an application for a mortgage
   27  loan, negotiates or offers to negotiate the terms or conditions
   28  of a new or existing mortgage loan on behalf of a borrower or
   29  lender, processes a mortgage loan application, or negotiates or
   30  offers to negotiate the sale of an existing mortgage loan to a
   31  noninstitutional investor for compensation or gain. The term
   32  includes an individual who is required to be licensed as a loan
   33  originator under the activities of a loan originator as that
   34  term is defined in the S.A.F.E. Mortgage Licensing Act of 2008,
   35  and an individual acting as a loan originator pursuant to that
   36  definition is acting as a loan originator for purposes of this
   37  definition. The term does not include an employee of a mortgage
   38  broker or mortgage lender whose duties are limited to who
   39  performs only administrative or clerical tasks, including
   40  quoting available interest rates, physically handling a
   41  completed application form, or transmitting a completed
   42  application form to a lender on behalf of a prospective
   43  borrower.
   44         (17) “Loan processing” means:
   45         (a) Receiving, collecting, distributing, and analyzing
   46  information common for the processing of a mortgage loan; or
   47         (b) Communicating with a consumer to obtain information
   48  necessary for the processing of a mortgage loan if such
   49  communication does not include offering or negotiating loan
   50  rates or terms, or counseling consumers about residential
   51  mortgage loan rates or terms.
   52         (25) “Person” has the same meaning as in s. 1.01.
   53         (28)(26) “Principal loan originator” means the licensed
   54  loan originator in charge of, and responsible for, the operation
   55  of a mortgage lender or mortgage broker, including all of the
   56  activities of the mortgage lender’s or mortgage broker’s loan
   57  originators, in-house loan processors, and branch managers,
   58  whether employees or independent contractors.
   59         Section 2. Subsection (2) of section 494.0011, Florida
   60  Statutes, is amended to read:
   61         494.0011 Powers and duties of the commission and office.—
   62         (2) To administer ss. 494.001-494.0077, The commission may
   63  adopt rules to administer parts I, II, and III of this chapter,
   64  including rules:
   65         (a) Requiring electronic submission of any forms,
   66  documents, or fees required by this act.
   67         (b) Relating to compliance with the S.A.F.E. Mortgage
   68  Licensing Act of 2008, including rules to:
   69         1. Require loan originators, mortgage brokers, mortgage
   70  lenders, and branch offices to register through the registry.
   71         2. Require the use of uniform forms that have been approved
   72  by the registry, and any subsequent amendments to such forms if
   73  the forms are substantially in compliance with the provisions of
   74  this chapter. Uniform forms that the commission may adopt
   75  include, but are not limited to:
   76         a. Uniform Mortgage Lender/Mortgage Broker Form, MU1.
   77         b. Uniform Mortgage Biographical Statement & Consent Form,
   78  MU2.
   79         c. Uniform Mortgage Branch Office Form, MU3.
   80         d. Uniform Individual Mortgage License/Registration &
   81  Consent Form, MU4.
   82         3. Require the filing of forms, documents, and fees in
   83  accordance with the requirements of the registry.
   84         4. Prescribe requirements for amending or surrendering a
   85  license or other activities as the commission deems necessary
   86  for the office’s participation in the registry.
   87         5. Prescribe procedures that allow a licensee to challenge
   88  information contained in the registry.
   89         6. Prescribe procedures for reporting violations of this
   90  chapter and disciplinary actions on licensees to the registry.
   91         (c) Establishing time periods during which a loan
   92  originator, mortgage broker, or mortgage lender license
   93  applicant under part II or part III is barred from licensure due
   94  to prior criminal convictions of, or guilty or nolo contendere
   95  pleas by, any of the applicant’s control persons, regardless of
   96  adjudication.
   97         1. The rules must provide:
   98         a. Permanent bars for felonies involving fraud, dishonesty,
   99  breach of trust, or money laundering;
  100         b. A 15-year disqualifying period for felonies involving
  101  moral turpitude;
  102         c. A 7-year disqualifying period for all other felonies;
  103  and
  104         d. A 5-year disqualifying period for misdemeanors involving
  105  fraud, dishonesty, or any other act of moral turpitude.
  106         2. The rules may provide for an additional waiting period
  107  due to dates of imprisonment or community supervision, the
  108  commitment of multiple crimes, and other factors reasonably
  109  related to the applicant’s criminal history.
  110         3. The rules may provide for mitigating factors for crimes
  111  identified in sub-subparagraph 1.b. However, the mitigation may
  112  not result in a period of disqualification less than 7 years.
  113  The rule may not mitigate the disqualifying periods in sub
  114  subparagraphs 1.a., 1.c., and 1.d.
  115         4. An applicant is not eligible for licensure until the
  116  expiration of the disqualifying period set by rule.
  117         5. Section 112.011 is not applicable to eligibility for
  118  licensure under this part.
  119         Section 3. Subsections (3), (4), (5), and (6) of section
  120  494.00255, Florida Statutes, are amended, and paragraph (m) of
  121  subsection (1) is reenacted, to read:
  122         494.00255 Administrative penalties and fines; license
  123  violations.—
  124         (1) Each of the following acts constitutes a ground for
  125  which the disciplinary actions specified in subsection (2) may
  126  be taken against a person licensed or required to be licensed
  127  under part II or part III of this chapter:
  128         (m) In any mortgage transaction, violating any provision of
  129  the federal Real Estate Settlement Procedures Act, as amended,
  130  12 U.S.C. ss. 2601 et seq.; the federal Truth in Lending Act, as
  131  amended, 15 U.S.C. ss. 1601 et seq.; or any regulations adopted
  132  under such acts.
  133         (3) A mortgage broker or mortgage lender, as applicable, is
  134  subject to the disciplinary actions specified in subsection (2)
  135  for a violation of subsection (1) by:
  136         (a) A control person of the mortgage broker or mortgage
  137  lender; or
  138         (b) A loan originator employed by or contracting with the
  139  mortgage broker or mortgage lender; or
  140         (c) An in-house loan processor who is an employee of the
  141  mortgage broker or mortgage lender.
  142         (4) A principal loan originator of a mortgage broker is
  143  subject to the disciplinary actions specified in subsection (2)
  144  for violations of subsection (1) by a loan originator or an in
  145  house loan processor in the course of an association with the
  146  mortgage broker if there is a pattern of repeated violations by
  147  the loan originator or in-house loan processor or if the
  148  principal loan originator has knowledge of the violations.
  149         (5) A principal loan originator of a mortgage lender is
  150  subject to the disciplinary actions specified in subsection (2)
  151  for violations of subsection (1) by a loan originator or an in
  152  house loan processor in the course of an association with a
  153  mortgage lender if there is a pattern of repeated violations by
  154  the loan originator or in-house loan processor or if the
  155  principal loan originator has knowledge of the violations.
  156         (6) A branch manager is subject to the disciplinary actions
  157  specified in subsection (2) for violations of subsection (1) by
  158  a loan originator or an in-house loan processor in the course of
  159  an association with the mortgage broker or mortgage lender if
  160  there is a pattern of repeated violations by the loan originator
  161  or in-house loan processor or if the branch manager has
  162  knowledge of the violations.
  163         Section 4. Section 494.00331, Florida Statutes, is amended
  164  to read:
  165         494.00331 Loan originator and loan processor employment.—
  166         (1) LOAN ORIGINATORS.—An individual may not act as a loan
  167  originator unless he or she is an employee of, or an independent
  168  contractor for, a mortgage broker or a mortgage lender, and may
  169  not be employed by or contract with more than one mortgage
  170  broker or mortgage lender, or either simultaneously.
  171         (2) CONTRACT LOAN PROCESSORS.—Subsection (1) However, this
  172  provision does not apply to a contract loan processor who has a
  173  declaration of intent to act solely as a contract loan processor
  174  on file with the office. The declaration of intent must be on a
  175  form as prescribed by commission rule any licensed loan
  176  originator who acts solely as a loan processor and contracts
  177  with more than one mortgage broker or mortgage lender, or either
  178  simultaneously.
  179         (2) For purposes of this section, the term “loan processor”
  180  means an individual who is licensed as a loan originator who
  181  engages only in:
  182         (a) The receipt, collection, distribution, and analysis of
  183  information common for the processing or underwriting of a
  184  residential mortgage loan; or
  185         (b) Communication with consumers to obtain the information
  186  necessary for the processing or underwriting of a loan, to the
  187  extent that such communication does not include offering or
  188  negotiating loan rates or terms or does not include counseling
  189  consumers about residential mortgage loan rates or terms.
  190         (3) A person may not act as a loan processor unless the
  191  person is licensed as a loan originator under this chapter and
  192  has on file with the office a declaration of intent to engage
  193  solely in loan processing. The declaration of intent must be on
  194  such form as prescribed by the commission by rule.
  195         (a)(4) A loan originator that currently has a declaration
  196  of intent to engage solely in loan processing on file with the
  197  office may withdraw his or her declaration of intent to engage
  198  solely in loan processing. The withdrawal of declaration of
  199  intent must be on such form as prescribed by commission rule.
  200         (b)(5) A declaration of intent or a withdrawal of
  201  declaration of intent is effective upon receipt by the office.
  202         (c)(6) The fee earned by a contract loan processor may be
  203  paid to the company that employs the loan processor without
  204  violating the restriction in s. 494.0025(8)(7) requiring fees or
  205  commissions to be paid to a licensed mortgage broker or mortgage
  206  lender or a person exempt from licensure under this chapter.
  207         (3) IN-HOUSE LOAN PROCESSORS.—An individual may not act as
  208  an in-house loan processor unless he or she is an employee of a
  209  mortgage broker or a mortgage lender and may not be employed by
  210  more than one mortgage broker or mortgage lender, or either,
  211  simultaneously. An in-house loan processor must work at the
  212  direction of and be subject to the supervision and instruction
  213  of a loan originator licensed under this part.
  214         Section 5. Subsection (1) of section 494.0035, Florida
  215  Statutes, is amended to read:
  216         494.0035 Principal loan originator and branch manager for
  217  mortgage broker.—
  218         (1) Each mortgage broker must be operated by a principal
  219  loan originator who shall have full charge, control, and
  220  supervision of the mortgage broker business. The principal loan
  221  originator must have been licensed as a loan originator for at
  222  least 1 year before being designated as the principal loan
  223  originator, or must demonstrate to the satisfaction of the
  224  office that he or she has been actively engaged in a mortgage
  225  related mortgage broker-related business for at least 1 year
  226  before being designated as a principal loan originator. Each
  227  mortgage broker must keep the office informed of the person
  228  designated as the principal loan originator as prescribed by
  229  commission rule. If the designation is inaccurate, the mortgage
  230  broker business shall be deemed to be operated under the full
  231  charge, control, and supervision of each officer, director, or
  232  ultimate equitable owner of a 10-percent or greater interest in
  233  the mortgage broker, or any other person in a similar capacity.
  234  A loan originator may not be a principal loan originator for
  235  more than one mortgage broker at any given time.
  236         Section 6. Paragraph (c) of subsection (3) of section
  237  494.0038, Florida Statutes, is amended to read:
  238         494.0038 Loan origination and mortgage broker fees and
  239  disclosures.—
  240         (3) At the time a written mortgage broker agreement is
  241  signed by the borrower or forwarded to the borrower for
  242  signature, or at the time the mortgage broker business accepts
  243  an application fee, credit report fee, property appraisal fee,
  244  or any other third-party fee, but at least 3 business days
  245  before execution of the closing or settlement statement, the
  246  mortgage broker shall disclose in writing to any applicant for a
  247  mortgage loan the following information:
  248         (c) A good faith estimate that discloses settlement charges
  249  and loan terms, signed and dated by the borrower, which
  250  discloses the total amount of each of the fees the borrower may
  251  reasonably expect to pay if the loan is closed, including, but
  252  not limited to, fees earned by the mortgage broker, lender fees,
  253  third-party fees, and official fees, together with the terms and
  254  conditions for obtaining a refund of such fees, if any.
  255         1. Any amount collected in excess of the actual cost shall
  256  be returned within 60 days after rejection, withdrawal, or
  257  closing.
  258         2. At the time a good faith estimate is provided to the
  259  borrower, the loan originator must identify in writing an
  260  itemized list that provides the recipient of all payments
  261  charged the borrower, which, except for all fees to be received
  262  by the mortgage broker, may be disclosed in generic terms, such
  263  as, but not limited to, paid to lender, appraiser, officials,
  264  title company, or any other third-party service provider. This
  265  requirement does not supplant or is not a substitute for the
  266  written mortgage broker agreement described in subsection (1).
  267  The disclosure required under this subparagraph must be signed
  268  and dated by the borrower.
  269         Section 7. Paragraph (a) of subsection (7) of section
  270  494.00421, Florida Statutes, is amended to read:
  271         494.00421 Fees earned upon obtaining a bona fide
  272  commitment.—Notwithstanding the provisions of ss. 494.001
  273  494.0077, any mortgage broker which contracts to receive a loan
  274  origination fee from a borrower upon obtaining a bona fide
  275  commitment shall accurately disclose in the mortgage broker
  276  agreement:
  277         (7)(a) The following statement, in at least 12-point
  278  boldface type immediately above the signature lines for the
  279  borrowers:
  280         “You are entering into a contract with a mortgage broker to
  281  obtain a bona fide mortgage loan commitment under the same terms
  282  and conditions as stated hereinabove or in a separate executed
  283  good faith estimate form. If the mortgage broker obtains a bona
  284  fide commitment under the same terms and conditions, you will be
  285  obligated to pay the loan origination fees even if you choose
  286  not to complete the loan transaction. If the provisions of s.
  287  494.00421, Florida Statutes, are not met, the loan origination
  288  fee can only be earned upon the funding of the mortgage loan.
  289  The borrower may contact the Office of Financial Regulation
  290  Department of Financial Services, Tallahassee, Florida,
  291  regarding any complaints that the borrower may have against the
  292  loan originator. The telephone number of the office department
  293  is: ...(insert telephone number)....”
  294         Section 8. Paragraph (e) of subsection (1) of section
  295  494.00612, Florida Statutes, is amended to read:
  296         494.00612 Mortgage lender license renewal.—
  297         (1) In order to renew a mortgage lender license, a mortgage
  298  lender must:
  299         (e) Authorize the registry to obtain an independent credit
  300  report on each of the mortgage lender’s control persons lender
  301  from a consumer reporting agency, and transmit or provide access
  302  to the report to the office. The cost of the credit report shall
  303  be borne by the licensee.
  304         Section 9. Subsection (13) is added to section 494.0067,
  305  Florida Statutes, to read:
  306         494.0067 Requirements of mortgage lenders.—
  307         (13) Each mortgage lender shall submit to the registry
  308  reports of condition which are in a form and which contain such
  309  information as the registry may require.
  310         Section 10. This act shall take effect July 1, 2011.
  311  
  312  ================= T I T L E  A M E N D M E N T ================
  313         And the title is amended as follows:
  314         Delete everything before the enacting clause
  315  and insert:
  316                        A bill to be entitled                      
  317         An act relating to loan processing; amending s.
  318         494.001, F.S.; creating and revising definitions;
  319         deleting a redundant definition; amending s. 494.0011,
  320         F.S.; specifying rulemaking powers of the Financial
  321         Services Commission; amending s. 494.00255, F.S.;
  322         including in-house loan processors in disciplinary
  323         provisions; amending s. 494.00331, F.S.; providing
  324         that specified provisions do not apply to a licensed
  325         contract loan processor who has on file with the
  326         office a declaration of intent to act solely as a
  327         contract loan processor; deleting a definition;
  328         providing restrictions on employment of persons
  329         licensed as in-house loan processors; amending s.
  330         494.0035, F.S.; clarifying provisions concerning the
  331         operation of mortgage brokers; amending s. 494.0038,
  332         F.S.; revising provisions relating to disclosure of
  333         settlement charges and loan terms; amending s.
  334         494.00421, F.S.; revising an agency reference in the
  335         mortgage broker agreement; providing that a borrower
  336         may contact the Office of Financial Regulation rather
  337         than the Department of Financial Services regarding
  338         any complaints against a loan originator; amending s.
  339         494.00612, F.S.; requiring that in order to renew a
  340         mortgage lender license a mortgage lender must
  341         authorize the Nationwide Mortgage Licensing System and
  342         Registry to obtain an independent credit report on
  343         each of the mortgage lender’s control persons;
  344         amending s. 494.0067, F.S.; requiring each mortgage
  345         lender to submit certain reports to the registry as
  346         may be required; providing an effective date.