CODING: Words stricken are deletions; words underlined are additions.
                                                  SENATE AMENDMENT
    Bill No. CS for SB 2262
    Amendment No. ___   Barcode 214814
                            CHAMBER ACTION
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11  Senators Meek, Holzendorf, Clary and Rossin moved the
12  following amendment:
13
14         Senate Amendment (with title amendment) 
15         Delete everything after the enacting clause
16
17  and insert:
18         Section 1.  Short title; purposes.--
19         (1)  This act shall be known as the "Florida Fair
20  Lending Act."
21         (2)(a)  The Legislature finds that abusive mortgage
22  lending has become a problem in this state even though most
23  high-cost home loans do not involve abusive mortgage
24  practices. One of the most common forms of abusive lending is
25  the making of loans that are equity-based rather than
26  income-based. The financing of points and fees in these loans
27  provides immediate income to the originator and encourages
28  creditors to repeatedly refinance home loans. As long as there
29  is sufficient equity in the home, an abusive creditor benefits
30  even if the borrower is unable to make the payments and is
31  forced to refinance. The financing of high points and fees
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  1  causes the loss of equity in each refinancing and often leads
  2  to foreclosure.
  3         (b)  Abusive lending has threatened the viability of
  4  many communities and caused decreases in home ownership. While
  5  the marketplace appears to operate effectively for
  6  conventional mortgages, too many homeowners find themselves
  7  victims of overreaching creditors who provide loans with
  8  unnecessarily high costs and terms that are unnecessary to
  9  secure repayment of the loan. The Legislature finds that as
10  competition and self-regulation have not eliminated the
11  abusive terms from home-secured loans, the consumer protection
12  provisions of this act are necessary to encourage fair
13  lending.
14         Section 2.  Definitions.--As used in this act:
15         (1)  "Affiliate" means any company that controls, is
16  controlled by, or is in common control with another company,
17  as set forth in 12 U.S.C. s. 1841, et seq., and the
18  regulations adopted thereunder.
19         (2)  "Annual percentage rate" means the annual
20  percentage rate for the loan calculated according to the
21  provisions of 15 U.S.C. s. 1606 and the regulations adopted
22  thereunder by the Federal Reserve Board.
23         (3)  "Borrower" means any natural person obligated to
24  repay a loan, including, but not limited to, a coborrower,
25  cosignor, or guarantor.
26         (4)  "Bridge loan" means a loan with a maturity of less
27  than 18 months that only requires the payment of interest
28  until such time as the entire unpaid balance is due and
29  payable.
30         (5)  "Department" means the Department of Banking and
31  Finance.
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                                                  SENATE AMENDMENT
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  1         (6)  "High-cost home loan" means a home loan as defined
  2  in 15 U.S.C. s. 1602(aa) and regulations adopted thereunder.
  3         (7)  "Lender" means any person who makes a high-cost
  4  home loan or acts as a mortgage broker or lender, finance
  5  company, or retail installment seller with respect to a
  6  high-cost home loan, but shall not include any entity
  7  chartered by the United States Congress when engaging in
  8  secondary market mortgage transactions as an assignee or
  9  otherwise.
10         Section 3.  Prohibited acts.--
11         (1)  PREPAYMENT PENALTIES.--
12         (a)  A high-cost home loan may not contain terms that
13  require a borrower to pay a prepayment penalty for paying all
14  or part of the loan principal before the date on which the
15  payment is due.
16         (b)  Notwithstanding paragraph (a), a lender making a
17  high-cost home loan may include in the loan contract a
18  prepayment fee or penalty, for up to the first 36 months after
19  the date of consummation of the loan, if:
20         1.  The borrower has also been offered a choice of
21  another product without a prepayment penalty.
22         2.  The borrower has been given, at least 3 business
23  days prior to the loan consummation, a written disclosure of
24  the terms of the prepayment fee or penalty by the lender,
25  including the benefit the borrower will receive for accepting
26  the prepayment fee or penalty through either a reduced
27  interest rate on the loan or reduced points or fees.
28         (2)  DEFAULT INTEREST RATE.--A high-cost home loan may
29  not provide for a higher interest rate after default on the
30  loan. However, this prohibition does not apply to interest
31  rate changes in a variable rate loan otherwise consistent with
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                                                  SENATE AMENDMENT
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  1  the provisions of the loan documents, provided the change in
  2  interest rate is not triggered by a default or the
  3  acceleration of the interest rate.
  4         (3)  BALLOON PAYMENTS.--A high-cost home loan having a
  5  term of less than 10 years may not contain terms under which
  6  the aggregate amount of the regular periodic payments would
  7  not fully amortize the outstanding principal balance. However,
  8  this prohibition does not apply when the payment schedule is
  9  adjusted to account for the seasonal or irregular income of
10  the borrower or if the loan is a bridge loan.
11         (4)  NEGATIVE AMORTIZATION.--A high-cost home loan may
12  not contain terms under which the outstanding principal
13  balance will increase at any time over the course of the loan
14  because the regular periodic payments do not cover the full
15  amount of the interest due.
16         (5)  PREPAID PAYMENTS.--A high-cost home loan may not
17  include terms under which more than two periodic payments
18  required under the loan are consolidated and paid in advance
19  from the loan proceeds provided to the borrower.
20         (6)  EXTENDING CREDIT WITHOUT REGARD TO THE PAYMENT
21  ABILITY OF THE BORROWER.--A lender making a high-cost home
22  loan shall not engage in any pattern or practice of extending
23  high-cost home loans to borrowers based upon the borrowers'
24  collateral without regard to the borrowers' ability to repay
25  the loan, including the borrowers' current and expected
26  income, current obligations, and employment.
27         (7)  PAYMENTS TO A HOME CONTRACTOR.--A lender shall not
28  make any payments to a contractor under a home improvement
29  contract from amounts of a high-cost home loan other than:
30         (a)  In the form of an instrument that is payable to
31  the borrower or jointly to the borrower and the contractor; or
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  1         (b)  At the election of the borrower by a third-party
  2  escrow agent in accordance with terms established in a written
  3  agreement signed by the borrower, the lender, and the
  4  contractor prior to the date of payment.
  5         (8)  DUE-ON-DEMAND CLAUSE.--A high-cost home loan may
  6  not contain a provision that permits the lender, in its sole
  7  discretion, to call or accelerate the indebtedness. This
  8  provision does not prohibit acceleration of the loan due to
  9  the borrower's failure to abide by the terms of the loan, or
10  due to fraud or material misrepresentation by the consumer in
11  connection with the loan.
12         (9)  REFINANCING WITHIN AN 18-MONTH PERIOD.--
13         (a)  A lender, its affiliate, or an assignee shall not
14  refinance any high-cost home loan to the same borrower within
15  the first 18 months of the loan when the refinancing does not
16  have a reasonable benefit to the borrower considering all of
17  the circumstances, including, but not limited to, the terms of
18  both the new and refinanced loans, the cost of the new loan,
19  and the borrower's circumstances.
20         (b)  A lender or assignee shall not engage in acts or
21  practices to evade this requirement, including a pattern or
22  practice of arranging for the refinancing of the lender's or
23  assignee's own loans by affiliated or unaffiliated lenders or
24  modifying a loan agreement, whether or not the existing loan
25  is satisfied and replaced by the new loan, and charging a fee.
26         (10)  OPEN-ENDED LOANS.--A lender shall not make any
27  loan as an open-ended loan in order to evade the provisions of
28  this act unless such open-ended loans meet the definition in
29  12 C.F.R. s. 226.2(a)(20).
30         (11)  RECOMMENDATION OF DEFAULT.--A lender shall not
31  recommend or encourage default on an existing loan or other
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                                                  SENATE AMENDMENT
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  1  debt prior to and in connection with the closing or planned
  2  closing of a high-cost home loan that refinances all or any
  3  portion of such existing loan or debt.
  4         (12)  PROHIBITED DOOR-TO-DOOR LOANS.--A high-cost home
  5  loan may not be made as a direct result of a potential or
  6  future lender or its representative offering or selling a
  7  high-cost home loan at the residence of a potential borrower
  8  without a prearranged appointment with the potential borrower
  9  or the expressed invitation of the potential borrower. This
10  subsection does not apply to mail solicitations that may be
11  received by the potential borrower.
12         (13)  LATE PAYMENT FEES.--A lender may not charge a
13  late payment fee for a high-cost home loan except as provided
14  in this subsection:
15         (a)  A late payment fee may not be in excess of 5
16  percent of the amount of the payment past due.
17         (b)  A late payment fee may only be assessed for a
18  payment past due for 15 days or more.
19         (c)  A late payment fee may not be charged more than
20  once with respect to a single late payment.  If a late payment
21  fee is deducted from a payment made on the loan and such
22  deduction causes a subsequent default on a subsequent payment,
23  no late payment fee may be imposed for such default. If a late
24  payment fee has been imposed once with respect to a particular
25  late payment, no such fee shall be imposed with respect to any
26  future payment which would have been timely and sufficient,
27  but for the previous default.
28         (14)  MODIFICATION OR DEFERRAL FEES.--A lender may not
29  charge a borrower any fees or other charges to modify, renew,
30  extend, or amend a high-cost home loan or to defer any payment
31  due under the terms of a high-cost home loan on a minimum of
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  1  one modification, renewal, extension, or deferral per each 12
  2  months of the length of the loan.
  3         Section 4.  Required disclosures for high-cost home
  4  loans.--
  5         (1)  In addition to other disclosures required by law
  6  and in conspicuous type:
  7         (a)  NOTICE TO BORROWER.--A lender making a high-cost
  8  home loan shall provide a notice to a borrower in
  9  substantially the following form:
10         If you obtain this high-cost home loan, the lender will
11  have a mortgage on your home.  You could lose your home and
12  any money you have put into it if you do not meet your
13  obligations under the loan.
14         Mortgage loan rates and closing costs and fees vary
15  based on many factors, including your particular credit and
16  financial circumstances, your employment history, the
17  loan-to-value requested, and the type of property that will
18  secure your loan.  The loan rate and fees could also vary
19  based upon which lender or broker you select.  As a borrower,
20  you should shop around and compare loan rates and fees.
21         You should also consider consulting a qualified
22  independent credit counselor or other experienced financial
23  advisor regarding the rates, fees, and provisions of this
24  mortgage loan before you proceed. You should contact the
25  United States Department of Housing and Urban Development for
26  a list of credit counselors available in your area.
27         You are not required to complete this agreement merely
28  because you have received these disclosures or have signed a
29  loan application.
30         Borrowing for the purpose of debt consolidation can be
31  an appropriate financial management tool.  However, if you
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  1  continue to incur significant new credit card charges or other
  2  debts after this high-cost home loan is closed and then
  3  experience financial difficulties, you could lose your home
  4  and any equity you have in it if you do not meet your mortgage
  5  loan obligations.
  6         Remember that property taxes and homeowners' insurance
  7  are your responsibility.  Not all lenders provide escrow
  8  services for these payments.  You should ask your lender about
  9  these services.
10         Also, your payments on existing debts contribute to
11  your credit rating.  You should not accept any advice to
12  ignore your regular payments to your existing creditors.
13         (b)  ANNUAL PERCENTAGE RATE.--A lender making a
14  high-cost home loan shall disclose:
15         1.  In the case of a fixed mortgage, the annual
16  percentage rate and the amount of the regular monthly payment.
17         2.  In the case of any other credit transaction, the
18  annual percentage rate, the amount of the regular monthly
19  payment and the amount of any balloon payment permitted under
20  this section, a statement that the interest rate and monthly
21  payment may increase, and the amount of the maximum monthly
22  payment based upon the maximum interest rate allowed pursuant
23  to law.
24         (c)  NOTICE TO PURCHASERS AND ASSIGNEES.--All high-cost
25  home loans shall contain the following notice:
26         Notice: This is a mortgage subject to the provisions of
27  the Florida Fair Lending Act. Purchasers and assignees of this
28  mortgage could be liable for all claims and defenses with
29  respect to the mortgage which the borrower could assert
30  against the creditor.
31         (2)  Timing of disclosure.--
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  1         (a)  The disclosure required by this subsection shall
  2  be given not less than 3 business days prior to the
  3  consummation of the high-cost home loan.
  4         (b)  New disclosures are required when, after
  5  disclosure is made, the lender making the high-cost home loan
  6  changes the terms of the extension of credit, including if
  7  such changes make the original disclosures inaccurate, unless
  8  new disclosures are provided that meet the requirements of
  9  this section.
10         (c)  A lender may provide new disclosures pursuant to
11  paragraph (b) by telephone, if:
12         1.  The change is initiated by the borrower.
13         2.  At the consummation of the high-cost home loan:
14         a.  The lender provides the disclosures in writing to
15  the borrower.
16         b.  The lender and the borrower certify in writing that
17  the new disclosures were provided by telephone no later than 3
18  days prior to the consummation of the high-cost home loan.
19         (d)  A creditor must disclose to any high-cost home
20  loan borrower the rights of the borrower to rescind the
21  high-cost home loan within 3 business days pursuant to 15
22  U.S.C. s. 1635(a) and shall provide appropriate forms for the
23  borrower to exercise his or her right to rescission. The
24  notice, forms, and provisions thereof must be in accordance
25  with the requirements of 15 U.S.C. s. 1635(a).
26         Section 5.  Liability of purchasers and assignees.--Any
27  person who purchases or is otherwise assigned a high-cost home
28  loan shall be subject to all claims and defenses with respect
29  to that mortgage that the borrower could assert against the
30  creditor of the mortgage, to the same extent and subject to
31  the same limitations that a borrower of a high-cost home loan
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  1  may assert against an assignee or purchaser pursuant to 15
  2  U.S.C. s. 1641.
  3         Section 6.  Right to cure high-cost home loans.--
  4         (1)  RIGHT TO REINSTATE.--For a high-cost home loan, if
  5  a lender asserts that grounds for acceleration exist and
  6  requires the payment in full of all sums secured by the
  7  security instrument, the borrower, or anyone authorized to act
  8  on the borrower's behalf, shall have the right, during the
  9  45-day period set forth in subsection (2), to cure the default
10  and reinstate the home loan by tendering the amount or
11  performance as specified in this section. However, once a
12  lender has provided two such notices as required by this
13  section, for two separate incidents, a lender is not
14  thereafter required to provide the notice required by this
15  section for a third or subsequent incident for which the
16  lender asserts that grounds exist for acceleration of the loan
17  and repayment in full. Cure of default as provided in this
18  section shall reinstate the borrower to the same position as
19  if the default had not occurred and shall nullify, as of the
20  date of the cure, any acceleration of any obligation under the
21  security instrument or note arising from the default.
22         (2)  GROUNDS FOR REINSTATEMENT.--Before any action
23  filed to foreclose upon the home or other action is taken to
24  seize or transfer ownership of the home, a notice of the right
25  to cure the default must be delivered to the borrower at the
26  address of the property upon which any security exists for the
27  home loan by postage prepaid certified United States mail,
28  return receipt requested, which notice is effective upon
29  deposit in the United States mail, and shall inform the
30  borrower:
31         (a)  Of the nature of default claimed on the home loan
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  1  and of the borrower's right to cure the default by paying the
  2  sum of money required to cure the default. If the amount
  3  necessary to cure the default will change during the 45-day
  4  period after the effective date of the notice due to the
  5  application of a daily interest rate or the addition of late
  6  payment fees, as allowed by this act, the notice shall give
  7  sufficient information to enable the borrower to calculate the
  8  amount at any point during the 45-day period.
  9         (b)  Of the date by which the borrower shall cure the
10  default to avoid acceleration and initiation of foreclosure or
11  other action to seize the home, which date shall not be less
12  than 45 days after the date the notice is effective, and the
13  name and address and telephone number of a person to whom the
14  payment or tender shall be made.
15         (c)  That if the borrower does not cure the default by
16  the date specified, the creditor may take steps to terminate
17  the borrower's ownership of the property by requiring payment
18  in full of the home loan and commencing a foreclosure
19  proceeding or other action to seize the home.
20         (d)  Of the name and address of the creditor and the
21  telephone number of a representative of the creditor whom the
22  borrower may contact if the borrower disagrees with the
23  creditor's assertion that a default has occurred or the
24  correctness of the creditor's calculation of the amount
25  required to cure the default.
26         (3)  FEES.--To cure a default under this section, a
27  borrower shall not be required to pay any charge, fee, or
28  penalty attributable to the exercise of the right to cure a
29  default as provided for in this section, other than the fees
30  specifically allowed by this act. The borrower shall not be
31  liable for any attorney's fees or costs relating to the
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  1  borrower's default that are incurred by the creditor prior to
  2  or during the 45-day period set forth in paragraph (2)(b).
  3         Section 7.  Powers and duties of the Department of
  4  Banking and Finance; investigations; examinations;
  5  injunctions; orders.--
  6         (1)(a)  The department shall be responsible for the
  7  administration and enforcement of this act.
  8         (b)  The department may adopt rules pursuant to
  9  sections 120.536(1) and 120.54, Florida Statutes, to implement
10  this act. The department may adopt rules to allow electronic
11  submission of any forms, documents, or fees required by this
12  act.
13         (2)(a)  The department may conduct an investigation of
14  any person whenever the department has reason to believe, upon
15  complaint or otherwise, that any violation of the act has
16  occurred.
17         (b)  Any person having reason to believe that a
18  provision of this act has been violated may file a written
19  complaint with the department setting forth the details of the
20  alleged violation.
21         (c)  The department may conduct examinations of any
22  person to determine compliance with this act.
23         (3)(a)  The department may bring action, through its
24  own counsel in the name and on behalf of the state, against
25  any person who has violated or is about to violate any
26  provision of this act, or any rule or order of the department
27  issued under the act, to enjoin the person from continuing in
28  or engaging in any act in furtherance of the violation.
29         (b)  In any injunctive proceeding, the court may, on
30  due showing by the department, issue a subpoena or subpoena
31  duces tecum requiring the attendance of any witness and
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  1  requiring the production of any books, accounts, records, or
  2  other documents and materials that appear necessary to the
  3  expeditious resolution of the application for injunction.
  4         (4)  The department may issue and serve upon any person
  5  an order to cease and desist and to take corrective action
  6  whenever the department has reason to believe the person is
  7  violating, has violated, or is about to violate any provision
  8  of this act, any rule or order of the department issued under
  9  this act, or any written agreement between the person and the
10  department. All procedural matters relating to issuance and
11  enforcement of cease and desist orders are governed by the
12  Administrative Procedure Act.
13         (5)  Whenever the department finds a person in
14  violation of this act, it may enter an order imposing a fine
15  in an amount not exceeding $5,000 for each count or separate
16  offense, provided that the aggregate fine for all violations
17  of this act that could have been asserted at the time of the
18  order imposing the fine shall not exceed $1 million.
19         (6)  Any violation of this act shall also be deemed to
20  be a violation of chapter 494, chapter 516, chapter 520,
21  chapter 655, chapter 657, chapter 658, chapter 660, chapter
22  663, chapter 665, or chapter 667, Florida Statutes. The
23  department may adopt rules to enforce this subsection.
24         Section 8.  Enforcement.--
25         (1)  Any person or the agent, officer, or other
26  representative of any person violating the provisions of this
27  act shall forfeit the entire interest charged in the high-cost
28  home loan or contracted to be charged or received, and only
29  the principal sum of such high-cost home loan can be enforced
30  in any court in this state, either at law or in equity.
31         (2)  A creditor in a home loan who, when acting in good
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  1  faith, fails to comply with the provisions of this act shall
  2  not be deemed to have violated this act if the creditor
  3  establishes that within 60 days after receiving any notice
  4  from the borrower of the compliance failure, which compliance
  5  failure was not intentional and resulted from a bona fide
  6  error notwithstanding the maintenance of procedures reasonably
  7  adapted to avoid such errors, the borrower has been notified
  8  of the compliance failure, appropriate restitution has been
  9  made to the borrower, and appropriate adjustments are made to
10  the loan. Bona fide errors shall include, but not be limited
11  to, clerical, calculation, computer malfunction and
12  programming, and printing errors. An error of legal judgment
13  with respect to a person's obligations under this section is
14  not a bona fide error.
15         (3)  The remedies provided in this section are
16  cumulative.
17         Section 9.  General rule.--All counties and
18  municipalities of this state are prohibited from enacting and
19  enforcing ordinances, resolutions, and rules regulating
20  financial or lending activities, including ordinances,
21  resolutions, and rules disqualifying persons from doing
22  business with a city, county, or municipality based upon
23  lending interest rates or imposing reporting requirements or
24  any other obligations upon persons regarding financial
25  services or lending practices of persons or entities, and any
26  subsidiaries or affiliates thereof, who:
27         (1)  Are subject to the jurisdiction of the department,
28  including for activities subject to this chapter;
29         (2)  Are subject to the jurisdiction of the Office of
30  Thrift Supervision, the Office of the Comptroller of the
31  Currency, the National Credit Union Administration, the
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  1  Federal Deposit Insurance Corporation, the Federal Trade
  2  Commission, or the United States Department of Housing and
  3  Urban Development;
  4         (3)  Originate, purchase, sell, assign, secure, or
  5  service property interests or obligations created by financial
  6  transactions or loans made, executed, or originated by persons
  7  referred to in subsection (1) or subsection (2) to assist or
  8  facilitate such transactions;
  9         (4)  Are chartered by the United States Congress to
10  engage in secondary market mortgage transactions; or
11         (5)  Are created by the Florida Housing Finance
12  Corporation.
13
14  Proof of noncompliance with this act can be used by a city,
15  county, or municipality of this state to disqualify a vendor
16  or contractor from doing business with a city, county, or
17  municipality of this state.
18         Section 10.  Severability.--The provisions of this act
19  are severable, and if any phrase, clause, sentence, or
20  provision is declared invalid or is preempted by federal law
21  or regulation, the validity of the remainder of the act shall
22  not be affected.  If any provision of this act is declared to
23  be inapplicable to any specific category, type, or kind of
24  loan or points and fees, the provisions of this act shall
25  nonetheless continue to apply with respect to all other loans
26  and points and fees.
27         Section 11.  This act shall take effect October 2,
28  2002.
29
30
31
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                                                  SENATE AMENDMENT
    Bill No. CS for SB 2262
    Amendment No. ___   Barcode 214814
  1  ================ T I T L E   A M E N D M E N T ===============
  2  And the title is amended as follows:
  3         Delete everything before the enacting clause
  4
  5  and insert:
  6                      A bill to be entitled
  7         An act relating to the Florida Fair Lending
  8         Act; providing a short title; providing
  9         legislative findings; providing definitions;
10         specifying prohibited acts relating to
11         high-cost home loans; specifying required
12         disclosures for high-cost home loans;
13         specifying liability of purchasers and
14         assignees; requiring lenders of high-cost home
15         loans to provide notice to borrowers prior to
16         taking foreclosure actions; allowing the
17         borrower to cure the default; providing
18         administration and enforcement powers and
19         duties of the Department of Banking and
20         Finance; authorizing the department to conduct
21         investigations and examinations; providing for
22         complaints; authorizing the department to bring
23         actions for injunctions; providing for issuance
24         of subpoenas; authorizing the department to
25         issue and serve cease and desist orders for
26         certain purposes; authorizing the department to
27         impose certain fines under certain
28         circumstances; specifying effect; authorizing
29         the department to adopt rules; providing that a
30         lender who violates this act forfeits the
31         interest in the high-cost home loan; providing
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    10:01 AM   03/19/02                             s2262c1c-36105
                                                  SENATE AMENDMENT
    Bill No. CS for SB 2262
    Amendment No. ___   Barcode 214814
  1         that certain unintentional good-faith errors
  2         are not deemed violations of th act; preempting
  3         regulation of high-cost home loans to the
  4         state; providing severability; providing an
  5         effective date.
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    10:01 AM   03/19/02                             s2262c1c-36105