1 | A bill to be entitled |
2 | An act relating to mortgages; amending s. 494.001, F.S.; |
3 | revising definitions; amending s. 494.0014, F.S.; |
4 | authorizing the Office of Financial Regulation to impose |
5 | fines; amending s. 494.0029, F.S.; authorizing the office |
6 | to take certain adverse actions on permits of certain |
7 | mortgage business schools; providing additional |
8 | requirements for such schools; amending s. 494.00295, |
9 | F.S.; providing an additional professional continuing |
10 | education requirement; authorizing the office to offer |
11 | professional continuing education programs; specifying |
12 | requirements for electronically transmitted and distance |
13 | education courses; amending s. 494.0033, F.S.; revising |
14 | mortgage broker license applicant requirements; |
15 | authorizing an additional fee for reviewing mortgage |
16 | broker's license tests; providing for review of the |
17 | testing process; amending s. 494.0038, F.S.; providing |
18 | additional disclosure requirements for mortgage brokerage |
19 | businesses; amending s. 494.004, F.S.; specifying an |
20 | additional notification requirement for mortgage broker |
21 | licensees; providing disclosure requirements; authorizing |
22 | a borrower to waive notification under certain |
23 | circumstances; providing waiver requirements; amending s. |
24 | 494.0041, F.S.; specifying additional acts constituting |
25 | grounds for certain disciplinary actions; providing for |
26 | fines and penalties; amending s. 494.0064, F.S.; providing |
27 | additional requirements for renewals of mortgage lender's |
28 | licenses; amending s. 494.0067, F.S.; providing additional |
29 | requirements for mortgage lender licenses; providing |
30 | disclosure and notification requirements; authorizing a |
31 | borrower to waive notification under certain |
32 | circumstances; providing waiver requirements; amending s. |
33 | 494.0072, F.S.; specifying additional acts constituting |
34 | grounds for certain disciplinary actions; providing fines |
35 | and penalties; amending s. 494.0073, F.S.; providing for |
36 | application of certain provisions to mortgage brokerage |
37 | businesses; providing for adoption of rules by the |
38 | Financial Services Commission; creating s. 817.545, F.S.; |
39 | providing a short title; providing a definition; |
40 | specifying criteria for committing the offense of mortgage |
41 | fraud; providing for venue with respect to the committed |
42 | offense; providing a criminal penalty; providing an |
43 | effective date. |
44 |
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45 | Be It Enacted by the Legislature of the State of Florida: |
46 |
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47 | Section 1. Subsection (2) of section 494.001, Florida |
48 | Statutes, is amended, and subsections (32), (33), and (34) are |
49 | added to that section, to read: |
50 | 494.001 Definitions.--As used in ss. 494.001-494.0077, the |
51 | term: |
52 | (2) "Act as a loan originator" means being employed by a |
53 | mortgage lender or correspondent mortgage lender, for |
54 | compensation or gain or in the expectation of compensation or |
55 | gain, to negotiate, or offer to negotiate, or assist any |
56 | licensed or exempt entity in negotiating the making of a |
57 | mortgage loan, including, but not limited to, working with a |
58 | licensed or exempt entity to structure a loan or discussing |
59 | terms and conditions necessary for the delivery of a loan |
60 | product. A natural person whose activities are ministerial and |
61 | clerical, which may include quoting available interest rates or |
62 | loan terms and conditions, is not acting as a loan originator. |
63 | (32) "Mortgage loan application" means a submission of a |
64 | borrower's financial information in anticipation of a credit |
65 | decision, whether written or computer-generated, relating to a |
66 | mortgage loan. If the submission does not state or identify a |
67 | specific property, the submission is an application for a |
68 | prequalification and not an application for a mortgage loan |
69 | under this part. The subsequent addition of an identified |
70 | property to the submission converts the submission to an |
71 | application for a mortgage loan. |
72 | (33) "Mortgage brokerage fee" means the total compensation |
73 | to be received by a mortgage brokerage business for acting as a |
74 | mortgage broker. |
75 | (34) "Business day" means any calendar day except Sunday |
76 | or a legal holiday. |
77 | Section 2. Subsection (4) is added to section 494.0014, |
78 | Florida Statutes, to read: |
79 | 494.0014 Cease and desist orders; administrative fines; |
80 | refund orders.-- |
81 | (4) The office may impose upon any person who makes or |
82 | brokers a loan, or any mortgage business school, a fine for |
83 | violations of any provision of ss. 494.001-494.00295 or any rule |
84 | or order issued under ss. 494.001-494.00295 in an amount not |
85 | exceeding $5,000 for each separate count or offense. |
86 | Section 3. Paragraph (f) is added to subsection (1), and |
87 | paragraphs (g) and (h) are added to subsection (2) of section |
88 | 494.0029, Florida Statutes, to read: |
89 | 494.0029 Mortgage business schools.-- |
90 | (1) |
91 | (f) In addition to the remedies set forth in s. 494.0014, |
92 | the office may revoke, suspend, or place on probation the permit |
93 | of any mortgage business school that fails to meet the |
94 | requirements of this section, subject to all reasonable |
95 | conditions that the office specifies. |
96 | (2) |
97 | (g) A school permitted under this section must conduct |
98 | classes on the basis of a 50-minute classroom hour in accordance |
99 | with the requirements of this chapter and commission rules. |
100 | (h) Each school permitted under this section is |
101 | responsible for developing procedures to confirm, and for |
102 | actually confirming, the identity of each student attending any |
103 | course offering. |
104 | Section 4. Section 494.00295, Florida Statutes, is amended |
105 | to read: |
106 | 494.00295 Professional continuing education.-- |
107 | (1) Mortgage brokers, and the principal representatives |
108 | and loan originators of a mortgage lender, correspondent |
109 | mortgage lender, or mortgage lender pursuant to s. 494.0065, |
110 | must successfully complete at least 14 hours of professional |
111 | continuing education covering primary and subordinate mortgage |
112 | financing transactions and the provisions of this chapter during |
113 | the 2-year period immediately preceding the renewal deadline for |
114 | a mortgage broker, mortgage lender, correspondent mortgage |
115 | lender, or mortgage lender pursuant to s. 494.0065. A minimum of |
116 | 4 hours shall cover the provisions of this chapter and the rules |
117 | adopted under this chapter. At the time of license renewal, a |
118 | licensee must certify to the office that the professional |
119 | continuing education requirements of this section have been met. |
120 | Licensees shall maintain records documenting compliance with |
121 | this subsection for a period of 4 years. The requirements for |
122 | professional continuing education are waived for the license |
123 | renewal of a mortgage broker who has completed the 24-hour |
124 | prelicensing classroom education requirement of s. 494.0033(3) |
125 | within 90 days of for the biennial license period immediately |
126 | following the period in which the person became licensed as a |
127 | mortgage broker. The requirements for professional continuing |
128 | education for a principal representative are waived for the |
129 | license renewal of a mortgage lender, correspondent mortgage |
130 | lender, or mortgage lender pursuant to s. 494.0065 for the |
131 | biennial license period immediately following the period in |
132 | which the principal representative completed the 24 hours of |
133 | classroom education and passed a written test in order to |
134 | qualify to be a principal representative. |
135 | (2) Professional continuing education programs must |
136 | contribute directly to the professional competency of the |
137 | participants, may only be offered by permitted mortgage business |
138 | schools, the office, or entities specifically exempted from |
139 | permitting as mortgage business schools, and may include |
140 | electronically transmitted or distance education courses. |
141 | (3)(a) All electronically transmitted courses shall |
142 | require that the time spent attending electronically transmitted |
143 | professional education courses is equal to the number of |
144 | qualifying hours awarded to participants for course attendance. |
145 | Before allowing a course participant to complete a course and |
146 | receive a certificate of course completion, the course provider |
147 | shall ensure that the course participant has: |
148 | 1. Logged the required number of hours for the particular |
149 | timed module. |
150 | 2. Completed a test that comprehensively covers the course |
151 | content for the particular timed module. |
152 | 3. Correctly answered all test questions for the |
153 | particular timed module. |
154 | (b) All distance education course participants shall |
155 | successfully complete a test that comprehensively covers course |
156 | content in order to receive a certificate of course completion. |
157 | Distance education providers shall not provide answers to test |
158 | questions to course participants and shall not issue a |
159 | certificate of course completion to any course participant who |
160 | has failed to correctly answer at least 75 percent of the total |
161 | test questions. The test must consist of at least 100 questions. |
162 | (4)(3) The commission shall adopt rules pursuant to ss. |
163 | 120.536(1) and 120.54 necessary to administer this section, |
164 | including rules governing qualifying hours for professional |
165 | continuing education programs and standards for electronically |
166 | transmitted or distance education courses, including course |
167 | completion requirements. |
168 | Section 5. Paragraphs (a) and (b) of subsection (2) of |
169 | section 494.0033, Florida Statutes, are amended to read: |
170 | 494.0033 Mortgage broker's license.-- |
171 | (2) Each initial application for a mortgage broker's |
172 | license must be in the form prescribed by rule of the |
173 | commission. The commission may require each applicant to provide |
174 | any information reasonably necessary to make a determination of |
175 | the applicant's eligibility for licensure. The office shall |
176 | issue an initial license to any natural person who: |
177 | (a) Is at least 18 years of age and has a high school |
178 | diploma or its equivalent. |
179 | (b) Has passed a written test adopted and administered by |
180 | the office, or has passed an electronic test adopted and |
181 | administered by the office or a third party approved by the |
182 | office, which is designed to determine competency in primary and |
183 | subordinate mortgage financing transactions as well as to test |
184 | knowledge of ss. 494.001-494.0077 and the rules adopted pursuant |
185 | thereto. The commission may prescribe by rule an additional fee |
186 | that may not exceed $100 for the electronic version of the |
187 | mortgage broker test. The commission may waive by rule the |
188 | examination requirement for any person who has passed a test |
189 | approved by the Conference of State Bank Supervisors, the |
190 | American Association of Residential Mortgage Regulators, or the |
191 | United States Department of Housing and Urban Development if the |
192 | test covers primary and subordinate mortgage financing |
193 | transactions. The commission may adopt rules prescribing an |
194 | additional fee that may not exceed $50 for an applicant to |
195 | review his or her completed and graded mortgage broker test. The |
196 | commission may adopt rules regarding the administration of the |
197 | testing process, including, but not limited to, procedures |
198 | relating to pretest registration, test security, scoring, |
199 | content, result notification, retest procedures and fees, |
200 | postexamination review, and challenge provisions. |
201 |
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202 | The commission may require by rule information concerning any |
203 | such applicant or person, including, but not limited to, his or |
204 | her full name and any other names by which he or she may have |
205 | been known, age, social security number, qualifications and |
206 | educational and business history, and disciplinary and criminal |
207 | history. |
208 | Section 6. Section 494.0038, Florida Statutes, is amended |
209 | to read: |
210 | 494.0038 Mortgage broker disclosures.-- |
211 | (1)(a)1. A person may not receive a mortgage brokerage fee |
212 | for acting as a mortgage brokerage business except pursuant to a |
213 | written mortgage brokerage agreement between the mortgage |
214 | brokerage business and the borrower that is signed and dated by |
215 | the business and the borrower. |
216 | 2. The written mortgage brokerage agreement must describe |
217 | the services to be provided by the mortgage brokerage business |
218 | and specify the amount and terms of the mortgage brokerage fee |
219 | that the mortgage brokerage business is to receive. The written |
220 | mortgage brokerage agreement must be executed within 3 business |
221 | days after a mortgage loan application is accepted if the |
222 | borrower is present when the application is accepted. If the |
223 | borrower is not present when the is application accepted, the |
224 | licensee shall forward the written mortgage brokerage agreement |
225 | to the borrower within 3 business days after the licensee's |
226 | acceptance of the application, and the licensee bears the burden |
227 | of proving that the borrower received and approved the written |
228 | mortgage brokerage agreement. |
229 | (b)1. If the mortgage brokerage business is to receive any |
230 | payment of any kind from the lender, the maximum total dollar |
231 | amount of the payment must be disclosed to the borrower in the |
232 | written mortgage brokerage agreement as described in paragraph |
233 | (a). The commission may prescribe by rule an acceptable form for |
234 | disclosure of brokerage fees received from the lender. The |
235 | mortgage brokerage agreement must state the nature of the |
236 | relationship with the lender, describe how compensation is paid |
237 | by the lender, and describe how the mortgage interest rate |
238 | affects the compensation paid to the mortgage brokerage |
239 | business. If any of the rates, points, fees, and other terms |
240 | quoted by or on behalf of the lender are to be received by the |
241 | mortgage brokerage business, such fact shall be specifically |
242 | disclosed to the borrower. |
243 | 2. The exact amount of any payment of any kind by the |
244 | lender to the mortgage brokerage business must be disclosed in |
245 | writing to the borrower within 3 business days after the |
246 | mortgage brokerage business is made aware of the exact amount of |
247 | the payment from the lender but no later than 3 business days |
248 | prior to the execution of the closing or settlement statement. |
249 | The licensee bears the burden of proving such notification was |
250 | provided to the borrower. If the mortgage brokerage fee is for |
251 | brokering a loan for a particular program under which the |
252 | brokerage fee varies according to the terms of the loan, the |
253 | brokerage fee may be disclosed as a range of fees at the time of |
254 | application. The mortgage broker shall, in such instance, |
255 | disclose the nature of the fee arrangement to the borrower, and |
256 | the exact amount of the fee must be disclosed at settlement or |
257 | closing. |
258 | (c) The commission may prescribe by rule the form of |
259 | disclosure of brokerage fees. |
260 | (2) At the time a written mortgage brokerage agreement is |
261 | executed by the borrower or forwarded to the borrower for |
262 | execution, or at the time the mortgage brokerage business |
263 | accepts an application fee, credit report fee, property |
264 | appraisal fee, or any other third-party fee, but not fewer than |
265 | 3 business days prior to execution of the closing or settlement |
266 | statement, the mortgage brokerage business shall disclose in |
267 | writing to any applicant for a mortgage loan the following |
268 | information: |
269 | (a) That such mortgage brokerage business may not make |
270 | mortgage loans or commitments. The mortgage brokerage business |
271 | may make a commitment and may furnish a lock-in of the rate and |
272 | program on behalf of the lender when the mortgage brokerage |
273 | business has obtained a written commitment or lock-in for the |
274 | loan from the lender on behalf of the borrower for the loan. The |
275 | commitment must be in the same form and substance as issued by |
276 | the lender. |
277 | (b) That such mortgage brokerage business cannot guarantee |
278 | acceptance into any particular loan program or promise any |
279 | specific loan terms or conditions. |
280 | (c) A good faith estimate, signed and dated by the |
281 | borrower, that discloses of the total amount of each of the fees |
282 | that the borrower may reasonably expect to pay if the loan is |
283 | closed, including, but not limited to, fees earned by the |
284 | mortgage brokerage business, lender fees, third-party fees, and |
285 | official fees, together with credit report fee, property |
286 | appraisal fee, or any other third-party fee and the terms and |
287 | conditions for obtaining a refund of such fees, if any. Any |
288 | amount collected in excess of the actual cost shall be returned |
289 | within 60 days after rejection, withdrawal, or closing. The good |
290 | faith estimate must identify the recipient of all payments |
291 | charged the borrower and, except for all fees to be received by |
292 | the mortgage brokerage business, may be disclosed in generic |
293 | terms, such as, but not limited to, paid to lender, appraiser, |
294 | officials, title company, or any other third-party service |
295 | provider. This requirement does not supplant or is not a |
296 | substitute for the written mortgage brokerage agreement |
297 | described in subsection (1). |
298 | (3) The disclosures required by this subsection must be |
299 | furnished in writing at the time an adjustable rate mortgage |
300 | loan is offered to the borrower and whenever the terms of the |
301 | adjustable rate mortgage loan offered materially change prior to |
302 | closing. The broker shall furnish the disclosures relating to |
303 | adjustable rate mortgages in a format prescribed by ss. 226.18 |
304 | and 226.19 of Regulation Z of the Board of Governors of the |
305 | Federal Reserve System, as amended, its commentary, as amended, |
306 | and the federal Truth in Lending Act, 15 U.S.C. ss. 1601 et |
307 | seq., as amended, together with the Consumer Handbook on |
308 | Adjustable Rate Mortgages, as amended, published by the Federal |
309 | Reserve Board and the Federal Home Loan Bank Board. The licensee |
310 | bears the burden of proving such disclosures were provided to |
311 | the borrower. |
312 | (4)(3) If the mortgage brokerage agreement includes a |
313 | nonrefundable application fee, the following requirements are |
314 | applicable: |
315 | (a) The amount of the application fee, which must be |
316 | clearly denominated as such, shall be clearly disclosed. |
317 | (b) The specific services that will be performed in |
318 | consideration for the application fee shall be disclosed. |
319 | (c) The application fee must be reasonably related to the |
320 | services to be performed and may not be based upon a percentage |
321 | of the principal amount of the loan or the amount financed. |
322 | (5)(4) A mortgage brokerage business may not accept any |
323 | fee in connection with a mortgage loan other than an application |
324 | fee, credit report fee, property appraisal fee, or other third- |
325 | party fee prior to obtaining a written commitment from a |
326 | qualified lender. |
327 | (6)(5) Any third-party fee entrusted to a mortgage |
328 | brokerage business shall immediately, upon receipt, be placed |
329 | into a segregated account with a financial institution located |
330 | in the state the accounts of which are insured by the Federal |
331 | Government. Such funds shall be held in trust for the payor and |
332 | shall be kept in the account until disbursement. Such funds may |
333 | be placed in one account if adequate accounting measures are |
334 | taken to identify the source of the funds. |
335 | (7)(6) All mortgage brokerage fees shall be paid to a |
336 | mortgage brokerage business licensee. |
337 | (8)(7) This section does not prohibit a mortgage brokerage |
338 | business from offering products and services, in addition to |
339 | those offered in conjunction with the loan origination process, |
340 | for a fee or commission. |
341 | Section 7. Subsection (8) is added to section 494.004, |
342 | Florida Statutes, to read: |
343 | 494.004 Requirements of licensees.-- |
344 | (8)(a) In every mortgage loan transaction, each licensee |
345 | under ss. 494.003-494.0043 shall notify a borrower of any |
346 | material changes in the terms of a mortgage loan previously |
347 | offered to the borrower within 3 business days after being made |
348 | aware of such changes by the lender but not less than 3 business |
349 | days before the signing of the settlement or closing statement. |
350 | The licensee bears the burden of proving such notification was |
351 | provided and accepted by the borrower. |
352 | (b) A borrower may waive the right to receive notice of a |
353 | material change that is granted under paragraph (a) if the |
354 | borrower determines that the extension of credit is needed to |
355 | meet a bona fide personal financial emergency and the right to |
356 | receive notice would delay the closing of the mortgage loan. The |
357 | imminent sale of the borrower's home at foreclosure during the |
358 | 3-day period before the signing of the settlement or closing |
359 | statement constitutes an example of a bona fide personal |
360 | financial emergency. In order to waive the borrower's right to |
361 | receive notice not less than 3 business days before the signing |
362 | of the settlement or closing statement of any such material |
363 | change, the borrower must provide the licensee with a dated |
364 | written statement that describes the personal financial |
365 | emergency, waives the right to receive the notice, bears the |
366 | borrower's signature, and is not on a printed form prepared by |
367 | the licensee for the purpose of such a waiver. |
368 | Section 8. Paragraph (v) is added to subsection (2) of |
369 | section 494.0041, Florida Statutes, to read: |
370 | 494.0041 Administrative penalties and fines; license |
371 | violations.-- |
372 | (1) Whenever the office finds a person in violation of an |
373 | act specified in subsection (2), it may enter an order imposing |
374 | one or more of the following penalties against the person: |
375 | (a) Revocation of a license or registration. |
376 | (b) Suspension of a license or registration subject to |
377 | reinstatement upon satisfying all reasonable conditions that the |
378 | office specifies. |
379 | (c) Placement of the licensee, registrant, or applicant on |
380 | probation for a period of time and subject to all reasonable |
381 | conditions that the office specifies. |
382 | (d) Issuance of a reprimand. |
383 | (e) Imposition of a fine in an amount not exceeding $5,000 |
384 | for each count or separate offense. |
385 | (f) Denial of a license or registration. |
386 | (2) Each of the following acts constitutes a ground for |
387 | which the disciplinary actions specified in subsection (1) may |
388 | be taken: |
389 | (v) In any mortgage transaction, violating any provision |
390 | of the federal Real Estate Settlement Procedure Act, as amended, |
391 | 12 U.S.C. ss. 2601 et seq., the federal Truth In Lending Act, as |
392 | amended, 15 U.S.C. ss. 1601 et seq., or any regulations adopted |
393 | under such acts. |
394 | Section 9. Subsection (1) of section 494.0064, Florida |
395 | Statutes, is amended to read: |
396 | 494.0064 Renewal of mortgage lender's license; branch |
397 | office license renewal.-- |
398 | (1)(a) The office shall renew a mortgage lender license |
399 | upon receipt of a completed renewal form, certification from the |
400 | licensee that the licensee currently meets the minimum net worth |
401 | requirements of s. 494.0061 or s. 494.0065, certification from |
402 | the licensee that during the preceding 2 years the licensee's |
403 | principal representative and loan originators have completed the |
404 | professional continuing education requirements of s. 494.00295, |
405 | and the nonrefundable renewal fee of $575. The office shall |
406 | renew a correspondent lender license upon receipt of a completed |
407 | renewal form, certification from the licensee that the licensee |
408 | currently meets the minimum net worth requirements of s. |
409 | 494.0062, certification from the licensee that during the |
410 | preceding 2 years the licensee's principal representative and |
411 | loan originators have completed the professional continuing |
412 | education requirements of s. 494.00295, and a nonrefundable |
413 | renewal fee of $475. Each licensee shall pay at the time of |
414 | renewal a nonrefundable fee of $325 for the renewal of each |
415 | branch office license. |
416 | (b) A licensee shall also submit, as part of the renewal |
417 | form, certification that during the preceding 2 years the |
418 | licensee's principal representative and loan originators have |
419 | completed the professional continuing education requirements of |
420 | s. 494.00295. |
421 | Section 10. Subsection (8) and paragraph (a) of subsection |
422 | (10) of section 494.0067, Florida Statutes, are amended, and |
423 | subsections (11) and (12) are added to that section, to read: |
424 | 494.0067 Requirements of licensees under ss. 494.006- |
425 | 494.0077.-- |
426 | (8) Each licensee under ss. 494.006-494.0077 shall provide |
427 | an applicant for a mortgage loan a good faith estimate of the |
428 | costs the applicant can reasonably expect to pay in obtaining a |
429 | mortgage loan. The good faith estimate of costs shall be mailed |
430 | or delivered to the applicant within a reasonable time after the |
431 | licensee receives a written loan application from the applicant. |
432 | The estimate of costs may be provided to the applicant by a |
433 | person other than the licensee making the loan. The good faith |
434 | estimate must identify the recipient of all payments charged to |
435 | the borrower and, except for all fees to be received by the |
436 | mortgage brokerage business and the mortgage lender or |
437 | correspondent mortgage lender, may be disclosed in generic |
438 | terms, such as, but not limited to, paid to appraiser, |
439 | officials, title company, or any other third-party service |
440 | provider. The licensee bears the burden of proving such |
441 | disclosures were provided to the borrower. The commission may |
442 | adopt rules that set forth the disclosure requirements of this |
443 | section. |
444 | (10)(a) Each mortgage lender or correspondent mortgage |
445 | lender licensee shall require the principal representative and |
446 | all loan originators, not currently licensed as mortgage brokers |
447 | pursuant to s. 494.0033, who perform services for the licensee |
448 | to complete 14 hours of professional continuing education during |
449 | each biennial license period. The education shall cover primary |
450 | and subordinate mortgage financing transactions and the |
451 | provisions of this chapter and the rules adopted under this |
452 | chapter. |
453 | (11) The disclosures in this subsection must be furnished |
454 | in writing at the time an adjustable rate mortgage loan is |
455 | offered to the borrower and whenever the terms of the adjustable |
456 | rate mortgage loan offered have a material change prior to |
457 | closing. The lender shall furnish the disclosures relating to |
458 | adjustable rate mortgages in a format prescribed by ss. 226.18 |
459 | and 226.19 of Regulation Z of the Board of Governors of the |
460 | Federal Reserve System, as amended, its commentary, as amended, |
461 | and the federal Truth in Lending Act, 15 U.S.C. ss. 1601 et |
462 | seq., as amended, together with the Consumer Handbook on |
463 | Adjustable Rate Mortgages, as amended, published by the Federal |
464 | Reserve Board and the Federal Home Loan Bank Board. The licensee |
465 | bears the burden of proving such disclosures were provided to |
466 | the borrower. |
467 | (12)(a) In every mortgage loan transaction, each licensee |
468 | under ss. 494.006-494.0077 shall notify a borrower of any |
469 | material changes in the terms of a mortgage loan previously |
470 | offered to the borrower within 3 business days after being made |
471 | aware of such changes by the lender but not less than 3 business |
472 | days before the signing of the settlement or closing statement. |
473 | The licensee bears the burden of proving such notification was |
474 | provided and accepted by the borrower. |
475 | (b) A borrower may waive the right to receive notice of a |
476 | material change that is granted under paragraph (a) if the |
477 | borrower determines that the extension of credit is needed to |
478 | meet a bona fide personal financial emergency and the right to |
479 | receive notice would delay the closing of the mortgage loan. The |
480 | imminent sale of the borrower's home at foreclosure during the |
481 | 3-day period before the signing of the settlement or closing |
482 | statement constitutes an example of a bona fide personal |
483 | financial emergency. In order to waive the borrower's right to |
484 | receive notice not less than 3 business days before the signing |
485 | of the settlement or closing statement of any such material |
486 | change, the borrower must provide the licensee with a dated |
487 | written statement that describes the personal financial |
488 | emergency, waives the right to receive the notice, bears the |
489 | borrower's signature, and is not on a printed form prepared by |
490 | the licensee for the purpose of such a waiver. |
491 | Section 11. Paragraph (v) is added to subsection (2) of |
492 | section 494.0072, Florida Statutes, subsection (3) of that |
493 | section is amended, and subsection (5) is added to that section, |
494 | to read: |
495 | 494.0072 Administrative penalties and fines; license |
496 | violations.-- |
497 | (1) Whenever the office finds a person in violation of an |
498 | act specified in subsection (2), it may enter an order imposing |
499 | one or more of the following penalties against that person: |
500 | (a) Revocation of a license or registration. |
501 | (b) Suspension of a license or registration, subject to |
502 | reinstatement upon satisfying all reasonable conditions that the |
503 | office specifies. |
504 | (c) Placement of the licensee or applicant on probation |
505 | for a period of time and subject to all reasonable conditions |
506 | that the office specifies. |
507 | (d) Issuance of a reprimand. |
508 | (e) Imposition of a fine in an amount not exceeding $5,000 |
509 | for each count or separate offense. |
510 | (f) Denial of a license or registration. |
511 | (2) Each of the following acts constitutes a ground for |
512 | which the disciplinary actions specified in subsection (1) may |
513 | be taken: |
514 | (v) In any mortgage transaction, violating any provision |
515 | of the federal Real Estate Settlement Procedure Act, as amended, |
516 | 12 U.S.C. ss. 2601 et seq., the federal Truth In Lending Act, as |
517 | amended, 15 U.S.C. ss. 1601 et seq., or any regulations adopted |
518 | under such acts. |
519 | (3) A mortgage lender or correspondent mortgage lender is |
520 | subject to the disciplinary actions specified in subsection (1) |
521 | if any officer, member, director, control person, joint |
522 | venturer, or ultimate equitable owner of a 10-percent or greater |
523 | interest in the mortgage lender or correspondent mortgage |
524 | lender, associate, or employee of the mortgage lender or |
525 | correspondent mortgage lender violates or has violated any |
526 | provision of subsection (2). |
527 | (5) A principal representative of a mortgage lender or |
528 | correspondent mortgage lender is subject to the disciplinary |
529 | actions specified in subsection (1) for violations of subsection |
530 | (2) by associates or employees in the course of an association |
531 | or employment with the correspondent mortgage lender or the |
532 | mortgage lender. The principal representative is only subject to |
533 | suspension or revocation for associate or employee actions if |
534 | there is a pattern of repeated violations by associates or |
535 | employees or if the principal broker or principal representative |
536 | had knowledge of the violations. |
537 | Section 12. Section 494.0073, Florida Statutes, is amended |
538 | to read: |
539 | 494.0073 Mortgage lender or correspondent mortgage lender |
540 | when acting as a mortgage brokerage business.--Sections 494.006- |
541 | 494.006-494.0077 do not prohibit a mortgage lender or |
542 | correspondent mortgage lender from acting as a mortgage |
543 | brokerage business. However, in mortgage transactions in which a |
544 | mortgage lender or correspondent mortgage lender acts as a |
545 | mortgage brokerage business, the provisions of ss. 494.0038, |
546 | 494.0042, 494.004(8), and 494.0043(1), (2), and (3) apply. |
547 | Section 13. Section 817.545, Florida Statutes, is created |
548 | to read: |
549 | 817.545 Mortgage fraud.-- |
550 | (1) This section may be cited as the "Florida Mortgage |
551 | Fraud Act." |
552 | (2) For purposes of this section, the term "mortgage |
553 | lending process" means the process through which a person seeks |
554 | or obtains a residential mortgage loan, including, but not |
555 | limited to, solicitation, application or origination, |
556 | negotiation of terms, third-party provider services, |
557 | underwriting, signing and closing, and funding of the loan. |
558 | Documents involved in the mortgage lending process include, but |
559 | are not limited to, mortgages, deeds, surveys, inspection |
560 | reports, uniform residential loan applications, or other loan |
561 | applications; appraisal reports; HUD-1 settlement statements; |
562 | supporting personal documentation for loan applications such as |
563 | W-2 forms, verifications of income and employment, credit |
564 | reports, bank statements, tax returns, and payroll stubs; and |
565 | any required disclosures. |
566 | (3) A person commits the offense of mortgage fraud if, |
567 | with the intent to defraud, the person knowingly: |
568 | (a) Makes any material misstatement, misrepresentation, or |
569 | omission during the mortgage lending process with the intention |
570 | that the misstatement, misrepresentation, or omission will be |
571 | relied on by a mortgage lender, borrower, or any other person or |
572 | entity involved in the mortgage lending process, provided that |
573 | omissions on a loan application regarding employment, income, or |
574 | assets for a loan that does not require this information shall |
575 | not be a material omission for purposes of this paragraph. |
576 | (b) Uses or facilitates the use of any material |
577 | misstatement, misrepresentation, or omission during the mortgage |
578 | lending process with the intention that the material |
579 | misstatement, misrepresentation, or omission will be relied on |
580 | by a mortgage lender, borrower, or any other person or entity |
581 | involved in the mortgage lending process, provided that |
582 | omissions on a loan application regarding employment, income, or |
583 | assets for a loan that does not require this information shall |
584 | not be a material omission for purposes of this paragraph. |
585 | (c) Receives any proceeds or any other funds in connection |
586 | with the mortgage lending process that the person knew resulted |
587 | from a violation of paragraph (a) or paragraph (b). |
588 | (d) Files or causes to be filed with the clerk of the |
589 | circuit court for any county of this state a mortgage lending |
590 | process document that contains a material misstatement, |
591 | misrepresentation, or omission. |
592 |
|
593 | For the purposes of this subsection, a misstatement, |
594 | misrepresentation, or omission is material if the misstatement, |
595 | misrepresentation, or omission is an important fact, as |
596 | distinguished from some unimportant or trivial detail, and has a |
597 | natural tendency to influence or was capable of influencing. |
598 | (4) An offense of mortgage fraud shall not be predicated |
599 | solely upon information lawfully disclosed under federal |
600 | disclosure laws, regulations, or interpretations related to the |
601 | mortgage lending process. |
602 | (5) For the purpose of venue under this section, any |
603 | violation of this section shall be considered to have been |
604 | committed: |
605 | (a) In the county in which the real property is located; |
606 | or |
607 | (b) In any county in which a material act was performed in |
608 | furtherance of the violation. |
609 | (6) Any person who violates subsection (3) commits a |
610 | felony of the third degree, punishable as provided in s. |
611 | 775.082, s. 775.083, or s. 775.084. |
612 | Section 14. This act shall take effect October 1, 2007. |