| 1 | A bill to be entitled |
| 2 | An act relating to residential mortgage fraud; creating s. |
| 3 | 817.545, F.S.; providing a short title; providing |
| 4 | legislative findings and declarations; providing |
| 5 | definitions; specifying criteria for committing the |
| 6 | offense of residential mortgage fraud; providing an |
| 7 | exception; providing for venue of the committed offense; |
| 8 | providing penalties; authorizing certain investigative |
| 9 | agencies to investigate and prosecute cases of residential |
| 10 | mortgage fraud; providing for civil forfeiture of property |
| 11 | under certain circumstances; reenacting s. 895.02(1)(a), |
| 12 | F.S., relating to the definition of "racketeering |
| 13 | activity," for purposes of incorporating the creation of |
| 14 | s. 817.545, F.S., in a reference to ch. 817, F.S.; |
| 15 | providing an effective date. |
| 16 |
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| 17 | Be It Enacted by the Legislature of the State of Florida: |
| 18 |
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| 19 | Section 1. Section 817.545, Florida Statutes, is created |
| 20 | to read: |
| 21 | 817.545 Residential mortgage fraud.-- |
| 22 | (1) This section may be cited as the "Florida Residential |
| 23 | Mortgage Fraud Act." |
| 24 | (2) The Legislature finds and declares that fraud |
| 25 | involving residential mortgages is at an all-time high in the |
| 26 | United States and in this state. Mortgage lending institutions |
| 27 | and borrowers have suffered hundreds of millions of dollars in |
| 28 | losses due to residential mortgage fraud. Fraudulently inflated |
| 29 | property values in neighborhoods have resulted in substantial |
| 30 | increases in property taxes and have threatened the viability of |
| 31 | many communities. The Legislature therefore concludes that for |
| 32 | the protection of the general public, and particularly for the |
| 33 | protection of borrowers, homeowners, lending institutions, and |
| 34 | the integrity of the mortgage lending process, residential |
| 35 | mortgage fraud should be made unlawful and subject to the |
| 36 | provisions of chapter 895. |
| 37 | (3) For purposes of this section: |
| 38 | (a) "Mortgage lending process" means the process through |
| 39 | which a person seeks or obtains a residential mortgage loan, |
| 40 | including, but not limited to, solicitation, application, or |
| 41 | origination, negotiation of terms, third-party provider |
| 42 | services, underwriting, signing and closing, and funding of the |
| 43 | loan. Documents involved in the mortgage lending process |
| 44 | include, but are not limited to, uniform residential loan |
| 45 | applications or other loan applications; appraisal reports; HUD- |
| 46 | 1 settlement statements; supporting personal documentation for |
| 47 | loan applications such as W-2 forms, verifications of income and |
| 48 | employment, bank statements, tax returns, and payroll stubs; and |
| 49 | any required disclosures. |
| 50 | (b) "Person" means a natural person, corporation, company, |
| 51 | limited liability company, partnership, trustee, association, or |
| 52 | any other entity. |
| 53 | (c) "Residential mortgage fraud" means one or more |
| 54 | misstatements, misrepresentations, or omissions made during a |
| 55 | mortgage lending process that involves residential property. |
| 56 | (d) "Residential mortgage loan" means a loan or agreement |
| 57 | to extend credit made to a person, which loan is secured by a |
| 58 | deed to secure debt, security deed, mortgage, security interest, |
| 59 | deed of trust, or other document representing a security |
| 60 | interest or lien upon any interest in one-family to four-family |
| 61 | residential property located in this state, including the |
| 62 | renewal or refinancing of any such loan. |
| 63 | (4) A person commits the offense of residential mortgage |
| 64 | fraud if, with the intent to defraud, the person: |
| 65 | (a) Knowingly makes any deliberate misstatement, |
| 66 | misrepresentation, or omission during the mortgage lending |
| 67 | process with the intention that the misstatement, |
| 68 | misrepresentation, or omission will be relied on by a mortgage |
| 69 | lender, borrower, or any other party to the mortgage lending |
| 70 | process; |
| 71 | (b) Knowingly uses or facilitates the use of any |
| 72 | deliberate misstatement, misrepresentation, or omission, knowing |
| 73 | the misstatement, misrepresentation, or omission contains a |
| 74 | misstatement, misrepresentation, or omission, during the |
| 75 | mortgage lending process with the intention that the |
| 76 | misstatement, misrepresentation, or omission will be relied on |
| 77 | by a mortgage lender, borrower, or any other party to the |
| 78 | mortgage lending process; |
| 79 | (c) Receives any proceeds or any other funds in connection |
| 80 | with a residential mortgage closing that the person knew |
| 81 | resulted from a violation of paragraph (a) or paragraph (b); |
| 82 | (d) Conspires to violate any of the provisions of |
| 83 | paragraph (a), paragraph (b), or paragraph (c); or |
| 84 | (e) Files or causes to be filed with the clerk of the |
| 85 | circuit court for any county of this state any document the |
| 86 | person knows to contain a deliberate misstatement, |
| 87 | misrepresentation, or omission. |
| 88 |
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| 89 | An offense of residential mortgage fraud shall not be predicated |
| 90 | solely upon information lawfully disclosed under federal |
| 91 | disclosure laws, regulations, and interpretations related to the |
| 92 | mortgage lending process. |
| 93 | (5) For the purpose of venue under this section, any |
| 94 | violation of this section shall be considered to have been |
| 95 | committed: |
| 96 | (a) In the county in which the residential property for |
| 97 | which a mortgage loan is being sought is located; |
| 98 | (b) In any county in which any act was performed in |
| 99 | furtherance of the violation; |
| 100 | (c) In any county in which any person alleged to have |
| 101 | violated this section had control or possession of any proceeds |
| 102 | of the violation; |
| 103 | (d) If a closing occurred, in any county in which the |
| 104 | closing occurred; or |
| 105 | (e) In any county in which a document containing a |
| 106 | deliberate misstatement, misrepresentation, or omission is filed |
| 107 | with the clerk of the circuit court for such county. |
| 108 | (6)(a) Any person who violates this section commits a |
| 109 | felony of the third degree, punishable as provided in s. |
| 110 | 775.082, s. 775.083, or s. 775.084. |
| 111 | (b) Any person who engages in a pattern of residential |
| 112 | mortgage fraud or a conspiracy or endeavor to engage or |
| 113 | participate in a pattern of residential mortgage fraud in |
| 114 | violation of this section commits a felony of the second degree, |
| 115 | punishable as provided in s. 775.082, s. 775.083, or s. 775.084. |
| 116 | For purposes of this paragraph, the term "pattern of residential |
| 117 | mortgage fraud" means one or more misstatements, |
| 118 | misrepresentations, or omissions made during the mortgage |
| 119 | lending process that involve two or more residential properties, |
| 120 | which have the same or similar intents, results, accomplices, |
| 121 | victims, or methods of commission or otherwise are interrelated |
| 122 | by distinguishing characteristics. |
| 123 | (c) Each residential property transaction subject to a |
| 124 | violation of this section shall constitute a separate offense |
| 125 | and shall not be combined with any other offense. |
| 126 | (7) An investigative agency as defined in s. 895.02 may |
| 127 | conduct the criminal investigation and prosecution of all cases |
| 128 | of residential mortgage fraud under this section. |
| 129 | (8) All real and personal property of every kind used or |
| 130 | intended for use in the course of, derived from, or realized |
| 131 | through a violation of this section is subject to civil |
| 132 | forfeiture to the state, as provided in s. 895.05. An |
| 133 | investigative agency as defined in s. 895.02 may commence |
| 134 | forfeiture proceedings under this section pursuant to s. 895.05. |
| 135 | Section 2. To incorporate the provisions of section |
| 136 | 817.545, Florida Statutes, as created by this act, paragraph (a) |
| 137 | of subsection (1) of section 895.02, Florida Statutes, is |
| 138 | reenacted to read: |
| 139 | 895.02 Definitions.--As used in ss. 895.01-895.08, the |
| 140 | term: |
| 141 | (1) "Racketeering activity" means to commit, to attempt to |
| 142 | commit, to conspire to commit, or to solicit, coerce, or |
| 143 | intimidate another person to commit: |
| 144 | (a) Any crime that is chargeable by indictment or |
| 145 | information under the following provisions of the Florida |
| 146 | Statutes: |
| 147 | 1. Section 210.18, relating to evasion of payment of |
| 148 | cigarette taxes. |
| 149 | 2. Section 403.727(3)(b), relating to environmental |
| 150 | control. |
| 151 | 3. Section 409.920 or s. 409.9201, relating to Medicaid |
| 152 | fraud. |
| 153 | 4. Section 414.39, relating to public assistance fraud. |
| 154 | 5. Section 440.105 or s. 440.106, relating to workers' |
| 155 | compensation. |
| 156 | 6. Section 443.071(4), relating to creation of a |
| 157 | fictitious employer scheme to commit unemployment compensation |
| 158 | fraud. |
| 159 | 7. Section 465.0161, relating to distribution of medicinal |
| 160 | drugs without a permit as an Internet pharmacy. |
| 161 | 8. Sections 499.0051, 499.0052, 499.00535, 499.00545, and |
| 162 | 499.0691, relating to crimes involving contraband and |
| 163 | adulterated drugs. |
| 164 | 9. Part IV of chapter 501, relating to telemarketing. |
| 165 | 10. Chapter 517, relating to sale of securities and |
| 166 | investor protection. |
| 167 | 11. Section 550.235, s. 550.3551, or s. 550.3605, relating |
| 168 | to dogracing and horseracing. |
| 169 | 12. Chapter 550, relating to jai alai frontons. |
| 170 | 13. Section 551.109, relating to slot machine gaming. |
| 171 | 14. Chapter 552, relating to the manufacture, |
| 172 | distribution, and use of explosives. |
| 173 | 15. Chapter 560, relating to money transmitters, if the |
| 174 | violation is punishable as a felony. |
| 175 | 16. Chapter 562, relating to beverage law enforcement. |
| 176 | 17. Section 624.401, relating to transacting insurance |
| 177 | without a certificate of authority, s. 624.437(4)(c)1., relating |
| 178 | to operating an unauthorized multiple-employer welfare |
| 179 | arrangement, or s. 626.902(1)(b), relating to representing or |
| 180 | aiding an unauthorized insurer. |
| 181 | 18. Section 655.50, relating to reports of currency |
| 182 | transactions, when such violation is punishable as a felony. |
| 183 | 19. Chapter 687, relating to interest and usurious |
| 184 | practices. |
| 185 | 20. Section 721.08, s. 721.09, or s. 721.13, relating to |
| 186 | real estate timeshare plans. |
| 187 | 21. Chapter 782, relating to homicide. |
| 188 | 22. Chapter 784, relating to assault and battery. |
| 189 | 23. Chapter 787, relating to kidnapping or human |
| 190 | trafficking. |
| 191 | 24. Chapter 790, relating to weapons and firearms. |
| 192 | 25. Section 796.03, s. 796.035, s. 796.04, s. 796.045, s. |
| 193 | 796.05, or s. 796.07, relating to prostitution and sex |
| 194 | trafficking. |
| 195 | 26. Chapter 806, relating to arson. |
| 196 | 27. Section 810.02(2)(c), relating to specified burglary |
| 197 | of a dwelling or structure. |
| 198 | 28. Chapter 812, relating to theft, robbery, and related |
| 199 | crimes. |
| 200 | 29. Chapter 815, relating to computer-related crimes. |
| 201 | 30. Chapter 817, relating to fraudulent practices, false |
| 202 | pretenses, fraud generally, and credit card crimes. |
| 203 | 31. Chapter 825, relating to abuse, neglect, or |
| 204 | exploitation of an elderly person or disabled adult. |
| 205 | 32. Section 827.071, relating to commercial sexual |
| 206 | exploitation of children. |
| 207 | 33. Chapter 831, relating to forgery and counterfeiting. |
| 208 | 34. Chapter 832, relating to issuance of worthless checks |
| 209 | and drafts. |
| 210 | 35. Section 836.05, relating to extortion. |
| 211 | 36. Chapter 837, relating to perjury. |
| 212 | 37. Chapter 838, relating to bribery and misuse of public |
| 213 | office. |
| 214 | 38. Chapter 843, relating to obstruction of justice. |
| 215 | 39. Section 847.011, s. 847.012, s. 847.013, s. 847.06, or |
| 216 | s. 847.07, relating to obscene literature and profanity. |
| 217 | 40. Section 849.09, s. 849.14, s. 849.15, s. 849.23, or s. |
| 218 | 849.25, relating to gambling. |
| 219 | 41. Chapter 874, relating to criminal street gangs. |
| 220 | 42. Chapter 893, relating to drug abuse prevention and |
| 221 | control. |
| 222 | 43. Chapter 896, relating to offenses related to financial |
| 223 | transactions. |
| 224 | 44. Sections 914.22 and 914.23, relating to tampering with |
| 225 | a witness, victim, or informant, and retaliation against a |
| 226 | witness, victim, or informant. |
| 227 | 45. Sections 918.12 and 918.13, relating to tampering with |
| 228 | jurors and evidence. |
| 229 | Section 3. This act shall take effect October 1, 2007. |