CODING: Words stricken are deletions; words underlined are additions.
c1121120
Senate
s2200-98
s2262
2002
SA
052916
Senators Clary and Rossin moved the following substitute for
amendment (052916):
Delete everything after the enacting clause




                                                  SENATE AMENDMENT

    Bill No. CS for SB 2262

    Amendment No. ___   Barcode 121120

                            CHAMBER ACTION
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10  ______________________________________________________________

11  Senators Clary and Rossin moved the following substitute for

12  amendment (052916):

13

14         Senate Amendment (with title amendment) 

15         Delete everything after the enacting clause

16

17  and insert:

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

19  the "Florida Fair Lending Act."

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

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

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

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

24  regulations adopted thereunder.

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

26  percentage rate for the loan calculated according to the

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

28  thereunder by the Federal Reserve Board.

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

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

31  cosignor, or guarantor.

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                                                  SENATE AMENDMENT

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

  2  than 18 months that only requires the payment of interest

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

  4  payable.

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

  6  Finance.

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

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

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

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

11  company, or retail installment seller with respect to a

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

13  chartered by the United States Congress when engaging in

14  secondary market mortgage transactions as an assignee or

15  otherwise.

16         Section 3.  Prohibited acts.--

17         (1)  PREPAYMENT PENALTIES.--

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

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

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

21  payment is due.

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

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

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

25  the date of consummation of the loan, if:

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

27  another product without a prepayment penalty.

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

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

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

31  including the benefit the borrower will receive for accepting

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 2262

    Amendment No. ___   Barcode 121120





  1  the prepayment fee or penalty through either a reduced

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

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

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

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

  6  rate changes in a variable rate loan otherwise consistent with

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

  8  interest rate is not triggered by a default or the

  9  acceleration of the interest rate.

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

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

12  the aggregate amount of the regular periodic payments would

13  not fully amortize the outstanding principal balance.

14  However, this prohibition does not apply when the payment

15  schedule is adjusted to account for the seasonal or irregular

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

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

18  not contain terms under which the outstanding principal

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

20  because the regular periodic payments do not cover the full

21  amount of the interest due.

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

23  include terms under which more than two periodic payments

24  required under the loan are consolidated and paid in advance

25  from the loan proceeds provided to the borrower.

26         (6)  EXTENDING CREDIT WITHOUT REGARD TO THE PAYMENT

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

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

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

30  collateral without regard to the borrowers' ability to repay

31  the loan, including the borrowers' current and expected

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                                                  SENATE AMENDMENT

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    Amendment No. ___   Barcode 121120





  1  income, current obligations, and employment.

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

  3  make any payments to a contractor under a home improvement

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

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

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

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

  8  escrow agent in accordance with terms established in a written

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

10  contractor prior to the date of payment.

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

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

13  the loan and demand repayment of the entire outstanding

14  balance, except when:

15         (a)  There is fraud or material misrepresentation by

16  the consumer in connection with the loan;

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

18  the agreement for any outstanding balance; or

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

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

21  any right of the creditor in such security.

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

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

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

25  the refinancing does not have a reasonable benefit to the

26  borrower considering all of the circumstances, including, but

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

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

29  circumstances.

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

31  reasonable benefit to the borrower occurs when:

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                                                  SENATE AMENDMENT

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    Amendment No. ___   Barcode 121120





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

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

  3  obligations being financed, taking into consideration all

  4  costs and fees;

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

  6  the duration of the loan;

  7         3.  The borrower receives a reasonable amount of cash

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

  9  the refinancing; or

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

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

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

13  practices to evade this requirement, including a pattern or

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

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

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

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

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

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

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

21  12 C.F.R. s. 226.2(a)(20).

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

23  recommend or encourage default on an existing loan or other

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

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

26  portion of such existing loan or debt.

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

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

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

30  at the residence of a potential borrower without a prearranged

31  appointment with the potential borrower or the expressed

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                                                  SENATE AMENDMENT

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  1  invitation of the potential borrower. This subsection does not

  2  apply to mail solicitations that may be received by the

  3  potential borrower.

  4         Section 4.  Required disclosures for high-cost home

  5  loans.--

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

  7  and in conspicuous type:

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

  9  home loan shall provide a notice to a borrower in

10  substantially the following form:

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

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

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

14  obligations under the loan.

15         Mortgage loan rates and closing costs and fees vary

16  based on many factors, including your particular credit and

17  financial circumstances, your employment history, the

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

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

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

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

22         You should also consider consulting a qualified

23  independent credit counselor or other experienced financial

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

25  mortgage loan before you proceed.

26         You are not required to complete this agreement merely

27  because you have received these disclosures or have signed a

28  loan application.

29         Borrowing for the purpose of debt consolidation can be

30  an appropriate financial management tool.  However, if you

31  continue to incur significant new credit card charges or other

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 2262

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

  2  experience financial difficulties, you could lose your home

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

  4  loan obligations.

  5         Remember that property taxes and homeowners' insurance

  6  are your responsibility.  Not all lenders provide escrow

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

  8  these services.

  9         Also, your payments on existing debts contribute to

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

11  ignore your regular payments to your existing creditors.

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

13  high-cost home loan shall disclose:

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

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

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

17  annual percentage rate, the amount of the regular monthly

18  payment and the amount of any balloon payment permitted under

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

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

21  payment based upon the maximum interest rate allowed pursuant

22  to law.

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

24  home loans shall contain the following notice:

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

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

27  mortgage could be liable for all claims and defenses with

28  respect to the mortgage which the borrower could assert

29  against the creditor.

30         (2)  Timing of disclosure.--

31         (a)  The disclosure required by this subsection shall

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                                                  SENATE AMENDMENT

    Bill No. CS for SB 2262

    Amendment No. ___   Barcode 121120





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

  2  consummation of the high-cost home loan.

  3         (b)  New disclosures are required when, after

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

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

  6  such changes make the original disclosures inaccurate, unless

  7  new disclosures are provided that meet the requirements of

  8  this section.

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

10  paragraph (b) by telephone, if:

11         1.  The change is initiated by the borrower.

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

13         a.  The lender provides the disclosures in writing to

14  the borrower.

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

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

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

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

19  loan borrower the rights of the borrower to rescind the

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

21  provide appropriate forms for the borrower to exercise his or

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

23  thereof must be in accordance with the requirements of 15

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

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

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

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

28  to that mortgage that the borrower could assert against the

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

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

31  may assert against an assignee or purchaser pursuant to 15

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                                                  SENATE AMENDMENT

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  1  U.S.C. s. 1641.

  2         Section 6.  Powers and duties of the Department of

  3  Banking and Finance; investigations; examinations;

  4  injunctions; orders.--

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

  6  administration and enforcement of this act.

  7         (b)  The department may adopt rules pursuant to

  8  sections 120.536(1) and 120.54, Florida Statutes, to implement

  9  this act. The department may adopt rules to allow electronic

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

11  act.

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

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

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

15  occurred.

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

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

18  complaint with the department setting forth the details of the

19  alleged violation.

20         (c)  The department may conduct examinations of any

21  person to determine compliance with this act.

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

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

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

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

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

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

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

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

30  duces tecum requiring the attendance of any witness and

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

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  1  other documents and materials that appear necessary to the

  2  expeditious resolution of the application for injunction.

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

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

  5  whenever the department has reason to believe the person is

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

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

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

  9  department. All procedural matters relating to issuance and

10  enforcement of cease and desist orders are governed by the

11  Administrative Procedure Act.

12         (5)  Whenever the department finds a person in

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

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

15  offense, provided that the aggregate fine for all violations

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

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

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

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

20  chapter 655, chapter 657, chapter 658, chapter 660, chapter

21  663, chapter 665, or chapter 667, Florida Statutes. The

22  department may adopt rules to enforce this subsection.

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

24  municipality of this state are prohibited from enacting and

25  enforcing ordinances, resolutions, and rules regulating

26  financial or lending activities, including ordinances,

27  resolutions, and rules disqualifying persons from doing

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

29  lending interest rates or imposing reporting requirements or

30  any other obligations upon persons regarding financial

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

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                                                  SENATE AMENDMENT

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  1  subsidiaries or affiliates thereof, who:

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

  3  including for activities subject to this chapter;

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

  5  Thrift Supervision, the Office of the Comptroller of the

  6  Currency, the National Credit Union Administration, the

  7  Federal Deposit Insurance Corporation, the Federal Trade

  8  Commission, or the United States Department of Housing and

  9  Urban Development;

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

11  service property interests or obligations created by financial

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

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

14  facilitate such transactions;

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

16  engage in secondary market mortgage transactions; or

17         (5)  Are created by the Florida Housing Finance

18  Corporation.

19

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

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

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

23  municipality of this state.

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

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

26  provision is declared invalid or is preempted by federal law

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

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

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

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

31  nonetheless continue to apply with respect to all other loans

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                                                  SENATE AMENDMENT

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    Amendment No. ___   Barcode 121120





  1  and points and fees.

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

  3

  4

  5  ================ T I T L E   A M E N D M E N T ===============

  6  And the title is amended as follows:

  7         Delete everything before the enacting clause

  8

  9  and insert:

10                      A bill to be entitled

11         An act relating to the Florida Fair Lending

12         Act; providing a short title; providing

13         definitions; specifying prohibited acts

14         relating to high-cost home loans; specifying

15         required disclosures for high-cost home loans;

16         specifying liability of purchasers and

17         assignees; providing administration and

18         enforcement powers and duties of the Department

19         of Banking and Finance; authorizing the

20         department to conduct investigations and

21         examinations; providing for complaints;

22         authorizing the department to bring actions for

23         injunctions; providing for issuance of

24         subpoenas; authorizing the department to issue

25         and serve cease and desist orders for certain

26         purposes; authorizing the department to impose

27         certain fines under certain circumstances;

28         specifying effect; authorizing the department

29         to adopt rules; preempting regulation of

30         high-cost home loans to the state; providing

31         severability; providing an effective date.

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