House Bill hb1471c1

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    Florida House of Representatives - 2002             CS/HB 1471

        By the Council for Competitive Commerce and
    Representatives Kendrick, Rubio, Bean, Alexander, Flanagan,
    Betancourt, Stansel, Detert and Seiler




  1                      A bill to be entitled

  2         An act relating to the Florida Fair Lending

  3         Act; providing a short title; providing

  4         definitions; specifying prohibited acts

  5         relating to high-cost home loans; specifying

  6         required disclosures for high-cost home loans;

  7         providing administration and enforcement powers

  8         and duties of the Department of Banking and

  9         Finance; authorizing the department to conduct

10         investigations and examinations; providing for

11         complaints; authorizing the department to bring

12         actions for injunctions; providing for issuance

13         of subpoenas; authorizing the department to

14         issue and serve cease and desist orders for

15         certain purposes; authorizing the department to

16         impose certain fines under certain

17         circumstances; specifying effect; authorizing

18         the department to adopt rules; preempting

19         regulation of high-cost home loans to the

20         state; providing severability; providing an

21         effective date.

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23  Be It Enacted by the Legislature of the State of Florida:

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25         Section 1.  Short title.--This act shall be known as

26  the "Florida Fair Lending Act."

27         Section 2.  Definitions.--As used in this act:

28         (1)  "Affiliate" means any company that controls, is

29  controlled by, or is in common control with another company,

30  as set forth in 12 U.S.C. s. 1841, et seq., and the

31  regulations adopted thereunder.

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  1         (2)  "Annual percentage rate" means the annual

  2  percentage rate for the loan calculated according to the

  3  provisions of 15 U.S.C. s. 1606 and the regulations adopted

  4  thereunder by the Federal Reserve Board.

  5         (3)  "Borrower" means any natural person obligated to

  6  repay a loan, including, but not limited to, a coborrower,

  7  cosignor, or guarantor.

  8         (4)  "Bridge loan" means a loan with a maturity of less

  9  than 18 months that only requires the payment of interest

10  until such time as the entire unpaid balance is due and

11  payable.

12         (5)  "Department" means the Department of Banking and

13  Finance.

14         (6)  "High-cost home loan" means a home loan as defined

15  in 15 U.S.C. s. 1602(aa) and regulations adopted thereunder

16  and which is secured by residential property in this state.

17         (7)  "Home loan" means a loan or agreement to extend

18  credit made to a natural person, which loan is secured by a

19  deed to secure debt, security deed, mortgage, security

20  instrument, deed of trust, or other document representing a

21  security interest or lien upon any interest in one-to-four

22  family residential property or a manufactured home when

23  secured in conjunction with the real property on which the

24  manufactured home is located, which real property is located

25  in this state, regardless of where the loan is made, including

26  the renewal or refinancing of any such loan.

27         (8)  "Lender" means any person who makes a high-cost

28  home loan or acts as a mortgage broker or lender, finance

29  company, or retail installment seller with respect to a

30  high-cost home loan.

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  1         (9)  "Residential property" means improved real

  2  property used or occupied as the principal residence of a

  3  natural person. Such term does not include rental property or

  4  second homes or manufactured homes when not secured in

  5  conjunction with the real property in which they are located.

  6         Section 3.  Prohibited acts.--

  7         (1)  PREPAYMENT PENALTIES.--

  8         (a)  A high-cost home loan may not contain terms that

  9  require a borrower to pay a prepayment penalty for paying all

10  or part of the loan principal before the date on which the

11  payment is due.

12         (b)  Notwithstanding paragraph (a), a lender making a

13  high-cost home loan may include in the loan contract a

14  prepayment fee or penalty, for up to the first 36 months after

15  the date of consummation of the loan, if:

16         1.  The borrower has also been offered a choice of

17  another product without a prepayment penalty.

18         2.  The borrower has been given, at least 3 business

19  days prior to the loan consummation, a written disclosure of

20  the terms of the prepayment fee or penalty by the lender,

21  including the benefit the borrower will receive for accepting

22  the prepayment fee or penalty through either a reduced

23  interest rate on the loan or reduced points or fees.

24         (2)  DEFAULT INTEREST RATE.--A high-cost home loan may

25  not provide for a higher interest rate after default on the

26  loan. However, this prohibition does not apply to interest

27  rate changes in a variable rate loan otherwise consistent with

28  the provisions of the loan documents, provided the change in

29  interest rate is not triggered by a default or the

30  acceleration of the interest rate.

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  1         (3)  BALLOON PAYMENTS.--A high-cost home loan having a

  2  term of less than 5 years may not contain terms under which

  3  the aggregate amount of the regular periodic payments would

  4  not fully amortize the outstanding principal balance.

  5  However, this prohibition does not apply when the payment

  6  schedule is adjusted to account for the seasonal or irregular

  7  income of the borrower or if the loan is a bridge loan.

  8         (4)  NEGATIVE AMORTIZATION.--A high-cost home loan may

  9  not contain terms under which the outstanding principal

10  balance will increase at any time over the course of the loan

11  because the regular periodic payments do not cover the full

12  amount of the interest due.

13         (5)  PREPAID PAYMENTS.--A high-cost home loan may not

14  include terms under which more than two periodic payments

15  required under the loan are consolidated and paid in advance

16  from the loan proceeds provided to the borrower.

17         (6)  EXTENDING CREDIT WITHOUT REGARD TO THE PAYMENT

18  ABILITY OF THE BORROWER.--A lender making a high-cost home

19  loan shall not engage in any pattern or practice of extending

20  high-cost home loans to borrowers based upon the borrowers'

21  collateral without regard to the borrowers' ability to repay

22  the loan, including the borrowers' current and expected

23  income, current obligations, and employment.

24         (7)  PAYMENTS TO A HOME CONTRACTOR.--A lender shall not

25  make any payments to a contractor under a home improvement

26  contract from amounts of a high-cost home loan other than:

27         (a)  In the form of an instrument that is payable to

28  the borrower or jointly to the borrower and the contractor; or

29         (b)  At the election of the borrower by a third-party

30  escrow agent in accordance with terms established in a written

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  1  agreement signed by the borrower, the lender, and the

  2  contractor prior to the date of payment.

  3         (8)  DUE-ON-DEMAND CLAUSE.--A creditor shall not

  4  terminate a loan in advance of the original maturity date of

  5  the loan and demand repayment of the entire outstanding

  6  balance, except when:

  7         (a)  There is fraud or material misrepresentation by

  8  the consumer in connection with the loan;

  9         (b)  The consumer fails to meet the repayment terms of

10  the agreement for any outstanding balance; or

11         (c)  There is any action or inaction by the borrower

12  that adversely affects the lender's security for the loan or

13  any right of the creditor in such security.

14         (9)  REFINANCING WITHIN A 1-YEAR PERIOD.--

15         (a)  A lender, its affiliate, or an assignee shall not

16  refinance any high-cost home loan to the same borrower when

17  the refinancing does not have a reasonable benefit to the

18  borrower considering all of the circumstances, including, but

19  not limited to, the terms of both the new and refinanced

20  loans, the cost of the new loan, and the borrower's

21  circumstances.

22         (b)  For purposes of paragraph (a), a presumption of

23  reasonable benefit to the borrower occurs when:

24         1.  The borrower's monthly payment to pay a new

25  consolidated loan will be lower than the total of all monthly

26  obligations being financed, taking into consideration all

27  costs and fees;

28         2.  There is a beneficial change for the borrower in

29  the duration of the loan;

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  1         3.  The borrower receives a reasonable amount of cash

  2  in excess of and in relation to the costs and fees as part of

  3  the refinancing; or

  4         4.  There is a change from an adjustable rate loan to a

  5  fixed rate loan, taking into account all costs and fees.

  6         (c)  A lender or assignee shall not engage in acts or

  7  practices to evade this requirement, including a pattern or

  8  practice of arranging for the refinancing of the lender's or

  9  assignee's own loans by affiliated or unaffiliated lenders or

10  modifying a loan agreement, whether or not the existing loan

11  is satisfied and replaced by the new loan, and charging a fee.

12         (10)  OPEN-ENDED LOANS.--A lender shall not make any

13  loan as an open-ended loan in order to evade the provisions of

14  this act unless such open-ended loans meet the definition in

15  12 C.F.R. s. 226.2(a)(20).

16         (11)  RECOMMENDATION OF DEFAULT.--No creditor shall

17  recommend or encourage default on an existing loan or other

18  debt prior to and in connection with the closing or planned

19  closing of a high-cost home loan that refinances all or any

20  portion of such existing loan or debt.

21         (12)  PROHIBITED LOANS.--A high-cost home loan may not

22  be made as a direct result of a potential or future lender or

23  its representative offering or selling a high-cost home loan

24  at the residence of a potential borrower without a prearranged

25  appointment with the potential borrower or the expressed

26  invitation of the potential borrower. This subsection does not

27  apply to mail solicitations that may be received by the

28  potential borrower.

29         Section 4.  Required disclosures for high-cost home

30  loans.--

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  1         (1)  In addition to other disclosures required by law

  2  and in conspicuous type:

  3         (a)  NOTICE TO BORROWER.--A lender making a high-cost

  4  home loan shall provide a notice to a borrower in

  5  substantially the following form:

  6         If you obtain this high-cost home loan, the lender will

  7  have a mortgage on your home.  You could lose your home and

  8  any money you have put into it if you do not meet your

  9  obligations under the loan.

10         Mortgage loan rates and closing costs and fees vary

11  based on many factors, including your particular credit and

12  financial circumstances, your employment history, the

13  loan-to-value requested, and the type of property that will

14  secure your loan.  The loan rate and fees could also vary

15  based upon which lender or broker you select.  As a borrower,

16  you should shop around and compare loan rates and fees.

17         You should also consider consulting a qualified

18  independent credit counselor or other experienced financial

19  advisor regarding the rates, fees, and provisions of this

20  mortgage loan before you proceed.

21         You are not required to complete this agreement merely

22  because you have received these disclosures or have signed a

23  loan application.

24         Borrowing for the purpose of debt consolidation can be

25  an appropriate financial management tool.  However, if you

26  continue to incur significant new credit card charges or other

27  debts after this high-cost home loan is closed and then

28  experience financial difficulties, you could lose your home

29  and any equity you have in it if you do not meet your mortgage

30  loan obligations.

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  1         Remember that property taxes and homeowners' insurance

  2  are your responsibility.  Not all lenders provide escrow

  3  services for these payments.  You should ask your lender about

  4  these services.

  5         Also, your payments on existing debts contribute to

  6  your credit rating.  You should not accept any advice to

  7  ignore your regular payments to your existing creditors.

  8         (b)  ANNUAL PERCENTAGE RATE.--A lender making a

  9  high-cost home loan shall disclose:

10         1.  In the case of a fixed mortgage, the annual

11  percentage rate and the amount of the regular monthly payment.

12         2.  In the case of any other credit transaction, the

13  annual percentage rate, the amount of the regular monthly

14  payment and the amount of any balloon payment permitted under

15  this section, a statement that the interest rate and monthly

16  payment may increase, and the amount of the maximum monthly

17  payment based upon the maximum interest rate allowed pursuant

18  to law.

19         (c)  NOTICE TO PURCHASERS AND ASSIGNEES.--All high-cost

20  home loans shall contain the following notice:

21         Notice: This is a mortgage subject to the provisions of

22  the Florida Fair Lending Act.

23         (2)  Timing of disclosure.--

24         (a)  The disclosure required by this subsection shall

25  be given not less than 3 business days prior to the

26  consummation of the high-cost home loan.

27         (b)  New disclosures are required when, after

28  disclosure is made, the lender making the high-cost home loan

29  changes the terms of the extension of credit, including if

30  such changes make the original disclosures inaccurate, unless

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  1  new disclosures are provided that meet the requirements of

  2  this section.

  3         (c)  A lender may provide new disclosures pursuant to

  4  paragraph (b) by telephone, if:

  5         1.  The change is initiated by the borrower.

  6         2.  At the consummation of the high-cost home loan:

  7         a.  The lender provides the disclosures in writing to

  8  the borrower.

  9         b.  The lender and the borrower certify in writing that

10  the new disclosures were provided by telephone no later than 3

11  days prior to the consummation of the high-cost home loan.

12         Section 5.  Powers and duties of the Department of

13  Banking and Finance; investigations; examinations;

14  injunctions; orders.--

15         (1)(a)  The department shall be responsible for the

16  administration and enforcement of this act.

17         (b)  The department may adopt rules pursuant to ss.

18  120.536(1) and 120.54, Florida Statutes, to implement this

19  act. The department may adopt rules to allow electronic

20  submission of any forms, documents, or fees required by this

21  act.

22         (2)(a)  The department may conduct an investigation of

23  any person whenever the department has reason to believe, upon

24  complaint or otherwise, that any violation of the act has

25  occurred.

26         (b)  Any person having reason to believe that a

27  provision of this act has been violated may file a written

28  complaint with the department setting forth the details of the

29  alleged violation.

30         (c)  The department may conduct examinations of any

31  person to determine compliance with this act.

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  1         (3)(a)  The department may bring action, through its

  2  own counsel in the name and on behalf of the state, against

  3  any person who has violated or is about to violate any

  4  provision of this act, or any rule or order of the department

  5  issued under the act, to enjoin the person from continuing in

  6  or engaging in any act in furtherance of the violation.

  7         (b)  In any injunctive proceeding, the court may, on

  8  due showing by the department, issue a subpoena or subpoena

  9  duces tecum requiring the attendance of any witness and

10  requiring the production of any books, accounts, records, or

11  other documents and materials that appear necessary to the

12  expeditious resolution of the application for injunction.

13         (4)  The department may issue and serve upon any person

14  an order to cease and desist and to take corrective action

15  whenever the department has reason to believe the person is

16  violating, has violated, or is about to violate any provision

17  of this act, any rule or order of the department issued under

18  this act, or any written agreement between the person and the

19  department. All procedural matters relating to issuance and

20  enforcement of cease and desist orders are governed by the

21  Administrative Procedure Act.

22         (5)  Whenever the department finds a person in

23  violation of this act, it may enter an order imposing a fine

24  in an amount not exceeding $5,000 for each count or separate

25  offense, provided that the aggregate fine for all violations

26  of this act that could have been asserted at the time of the

27  order imposing the fine shall not exceed $250,000.

28         (6)  Any violation of this act shall also be deemed to

29  be a violation of chapter 494, chapter 516, chapter 520,

30  chapter 655, chapter 657, chapter 658, chapter 660, chapter

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  1  663, chapter 665, or chapter 667, Florida Statutes. The

  2  department may adopt rules to enforce this subsection.

  3         Section 6.  General rule.--All political subdivisions

  4  of this state, including home rule municipalities, are

  5  prohibited from enacting and enforcing ordinances,

  6  resolutions, and rules pertaining to the financial or lending

  7  activities of persons who:

  8         (1)  Are subject to the jurisdiction of the department,

  9  including for activities subject to this chapter;

10         (2)  Are subject to the jurisdiction of the Office of

11  Thrift Supervision, the Office of the Comptroller of the

12  Currency, the National Credit Union Administration, the

13  Federal Deposit Insurance Corporation, the Federal Trade

14  Commission, or the United States Department of Housing and

15  Urban Development; or

16         (3)  Originate, purchase, sell, assign, securitize, or

17  service property interests or obligations created by financial

18  transactions or loans made, executed, or originated by persons

19  referred to in subsection (1) or subsection (2) to assist or

20  facilitate such transactions.

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22  The requirements of this section apply to all ordinances,

23  resolutions, and rules pertaining to financial lending

24  activities, including ordinances, resolutions, and rules

25  disqualifying persons from doing business with a political

26  subdivision based upon lending interest rates or imposing

27  reporting requirements or any other obligations upon persons

28  regarding financial services or lending practices. Nothing in

29  this section shall prohibit a requirement of compliance with

30  the terms of this act as a condition of doing business with a

31  city, county, or municipality of this state.

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  1         Section 7.  Severability.--The provisions of this act

  2  are severable, and if any phrase, clause, sentence, or

  3  provision is declared invalid or is preempted by federal law

  4  or regulation, the validity of the remainder of the act shall

  5  not be affected.  If any provision of this act is declared to

  6  be inapplicable to any specific category, type, or kind of

  7  loan or points and fees, the provisions of this act shall

  8  nonetheless continue to apply with respect to all other loans

  9  and points and fees.

10         Section 8.  This act shall take effect October 2, 2002.

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