House Bill hb1471e1

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                                       CS/HB 1471, First Engrossed



  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         specifying liability of purchasers and

  8         assignees; providing administration and

  9         enforcement powers and duties of the Department

10         of Banking and Finance; authorizing the

11         department to conduct investigations and

12         examinations; providing for complaints;

13         authorizing the department to bring actions for

14         injunctions; providing for issuance of

15         subpoenas; authorizing the department to issue

16         and serve cease and desist orders for certain

17         purposes; authorizing the department to impose

18         certain fines under certain circumstances;

19         specifying effect; authorizing the department

20         to adopt rules; preempting regulation of

21         high-cost home loans to the state; providing

22         severability; providing an effective date.

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

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

27  the "Florida Fair Lending Act."

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

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

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

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                                       CS/HB 1471, First Engrossed



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

  2  regulations adopted thereunder.

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

  4  percentage rate for the loan calculated according to the

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

  6  thereunder by the Federal Reserve Board.

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

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

  9  cosignor, or guarantor.

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

11  than 18 months that only requires the payment of interest

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

13  payable.

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

15  Finance.

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

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

18         (7)  "Lender" means any person who makes a high-cost

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

20  company, or retail installment seller with respect to a

21  high-cost home loan, but shall not include any entity

22  chartered by the United States Congress to engage in secondary

23  mortgage transactions or the Florida Housing Corporation.

24         Section 3.  Prohibited acts.--

25         (1)  PREPAYMENT PENALTIES.--

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

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

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

29  payment is due.

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

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


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                                       CS/HB 1471, First Engrossed



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

  2  the date of consummation of the loan, if:

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

  4  another product without a prepayment penalty.

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

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

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

  8  including the benefit the borrower will receive for accepting

  9  the prepayment fee or penalty through either a reduced

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

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

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

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

14  rate changes in a variable rate loan otherwise consistent with

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

16  interest rate is not triggered by a default or the

17  acceleration of the interest rate.

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

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

20  the aggregate amount of the regular periodic payments would

21  not fully amortize the outstanding principal balance.

22  However, this prohibition does not apply when the payment

23  schedule is adjusted to account for the seasonal or irregular

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

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

26  not contain terms under which the outstanding principal

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

28  because the regular periodic payments do not cover the full

29  amount of the interest due.

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

31  include terms under which more than two periodic payments


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                                       CS/HB 1471, First Engrossed



  1  required under the loan are consolidated and paid in advance

  2  from the loan proceeds provided to the borrower.

  3         (6)  EXTENDING CREDIT WITHOUT REGARD TO THE PAYMENT

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

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

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

  7  collateral without regard to the borrowers' ability to repay

  8  the loan, including the borrowers' current and expected

  9  income, current obligations, and employment.

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

11  make any payments to a contractor under a home improvement

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

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

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

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

16  escrow agent in accordance with terms established in a written

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

18  contractor prior to the date of payment.

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

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

21  the loan and demand repayment of the entire outstanding

22  balance, except when:

23         (a)  There is fraud or material misrepresentation by

24  the consumer in connection with the loan;

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

26  the agreement for any outstanding balance; or

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

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

29  any right of the creditor in such security.

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

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                                       CS/HB 1471, First Engrossed



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

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

  3  the refinancing does not have a reasonable benefit to the

  4  borrower considering all of the circumstances, including, but

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

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

  7  circumstances.

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

  9  reasonable benefit to the borrower occurs when:

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

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

12  obligations being financed, taking into consideration all

13  costs and fees;

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

15  the duration of the loan;

16         3.  The borrower receives a reasonable amount of cash

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

18  the refinancing; or

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

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

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

22  practices to evade this requirement, including a pattern or

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

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

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

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

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

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

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

30  12 C.F.R. s. 226.2(a)(20).

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                                       CS/HB 1471, First Engrossed



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

  2  recommend or encourage default on an existing loan or other

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

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

  5  portion of such existing loan or debt.

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

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

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

  9  at the residence of a potential borrower without a prearranged

10  appointment with the potential borrower or the expressed

11  invitation of the potential borrower. This subsection does not

12  apply to mail solicitations that may be received by the

13  potential borrower.

14         Section 4.  Required disclosures for high-cost home

15  loans.--

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

17  and in conspicuous type:

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

19  home loan shall provide a notice to a borrower in

20  substantially the following form:

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

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

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

24  obligations under the loan.

25         Mortgage loan rates and closing costs and fees vary

26  based on many factors, including your particular credit and

27  financial circumstances, your employment history, the

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

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

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

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


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                                       CS/HB 1471, First Engrossed



  1         You should also consider consulting a qualified

  2  independent credit counselor or other experienced financial

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

  4  mortgage loan before you proceed.

  5         You are not required to complete this agreement merely

  6  because you have received these disclosures or have signed a

  7  loan application.

  8         Borrowing for the purpose of debt consolidation can be

  9  an appropriate financial management tool.  However, if you

10  continue to incur significant new credit card charges or other

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

12  experience financial difficulties, you could lose your home

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

14  loan obligations.

15         Remember that property taxes and homeowners' insurance

16  are your responsibility.  Not all lenders provide escrow

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

18  these services.

19         Also, your payments on existing debts contribute to

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

21  ignore your regular payments to your existing creditors.

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

23  high-cost home loan shall disclose:

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

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

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

27  annual percentage rate, the amount of the regular monthly

28  payment and the amount of any balloon payment permitted under

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

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

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                                       CS/HB 1471, First Engrossed



  1  payment based upon the maximum interest rate allowed pursuant

  2  to law.

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

  4  home loans shall contain the following notice:

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

  6  the Florida Fair Lending Act. Purchasers and assignees of this

  7  mortgage could be liable for all claims and defenses with

  8  respect to the mortgage which the borrower could assert

  9  against the creditor.

10         (2)  Timing of disclosure.--

11         (a)  The disclosure required by this subsection shall

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

13  consummation of the high-cost home loan.

14         (b)  New disclosures are required when, after

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

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

17  such changes make the original disclosures inaccurate, unless

18  new disclosures are provided that meet the requirements of

19  this section.

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

21  paragraph (b) by telephone, if:

22         1.  The change is initiated by the borrower.

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

24         a.  The lender provides the disclosures in writing to

25  the borrower.

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

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

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

29         (d)  A creditor must disclose to any high-cost home

30  loan borrower the rights of the borrower to rescind the

31  high-cost home loan pursuant to 15 U.S.C. s. 1635(a) and shall


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                                       CS/HB 1471, First Engrossed



  1  provide appropriate forms for the borrower to exercise his or

  2  her right to rescission. The notice, forms, and provisions

  3  thereof must be in accordance with the requirements of 15

  4  U.S.C. s. 1635(a).

  5         Section 5.  Liability of purchasers and assignees.--Any

  6  person who purchases or is otherwise assigned a high-cost home

  7  loan shall be subject to all claims and defenses with respect

  8  to that mortgage that the borrower could assert against the

  9  creditor of the mortgage, to the same extent and subject to

10  the same limitations that a borrower of a high-cost home loan

11  may assert against an assignee or purchaser pursuant to 15

12  U.S.C. s. 1641.

13         Section 6.  Powers and duties of the Department of

14  Banking and Finance; investigations; examinations;

15  injunctions; orders.--

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

17  administration and enforcement of this act.

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

19  120.536(1) and 120.54, Florida Statutes, to implement this

20  act. The department may adopt rules to allow electronic

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

22  act.

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

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

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

26  occurred.

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

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

29  complaint with the department setting forth the details of the

30  alleged violation.

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  1         (c)  The department may conduct examinations of any

  2  person to determine compliance with this act.

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

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

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

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

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

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

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

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

11  duces tecum requiring the attendance of any witness and

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

13  other documents and materials that appear necessary to the

14  expeditious resolution of the application for injunction.

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

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

17  whenever the department has reason to believe the person is

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

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

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

21  department. All procedural matters relating to issuance and

22  enforcement of cease and desist orders are governed by the

23  Administrative Procedure Act.

24         (5)  Whenever the department finds a person in

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

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

27  offense, provided that the aggregate fine for all violations

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

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

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

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


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                                       CS/HB 1471, First Engrossed



  1  chapter 655, chapter 657, chapter 658, chapter 660, chapter

  2  663, chapter 665, or chapter 667, Florida Statutes. The

  3  department may adopt rules to enforce this subsection.

  4         Section 7.  General rule.--All city, county, or

  5  municipality of this state are prohibited from enacting and

  6  enforcing ordinances, resolutions, and rules regulating

  7  financial or lending activities, including ordinances,

  8  resolutions, and rules disqualifying persons from doing

  9  business with a city, county, or municipality based upon

10  lending interest rates or imposing reporting requirements or

11  any other obligations upon persons regarding financial

12  services or lending practices of persons or entities, and any

13  subsidiaries or affiliates thereof, who:

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

15  including for activities subject to this chapter;

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

17  Thrift Supervision, the Office of the Comptroller of the

18  Currency, the National Credit Union Administration, the

19  Federal Deposit Insurance Corporation, the Federal Trade

20  Commission, or the United States Department of Housing and

21  Urban Development;

22         (3)  Originate, purchase, sell, assign, secure, or

23  service property interests or obligations created by financial

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

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

26  facilitate such transactions;

27         (4)  Are chartered by the United States Congress to

28  engage in secondary market mortgage transactions; or

29         (5)  Are created by the Florida Housing Finance

30  Corporation.

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                                       CS/HB 1471, First Engrossed



  1  Proof of noncompliance with this act can be used by a city,

  2  county, or municipality of this state to disqualify a vendor

  3  or contractor from doing business with a city, county, or

  4  municipality of this state.

  5         Section 8.  Severability.--The provisions of this act

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

  7  provision is declared invalid or is preempted by federal law

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

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

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

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

12  nonetheless continue to apply with respect to all other loans

13  and points and fees.

14         Section 9.  This act shall take effect October 2, 2002.

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