| 1 | A bill to be entitled |
| 2 | An act relating to lending practices; amending s. |
| 3 | 494.00795, F.S.; providing an exception to enforcement of |
| 4 | the Florida Fair Lending Act; amending s. 494.00796, F.S.; |
| 5 | providing for private actions for violations of the |
| 6 | Florida Fair Lending Act; providing for awards of damages, |
| 7 | court costs, and attorney's fees; amending s. 697.08, |
| 8 | F.S.; providing for private actions for violations of |
| 9 | prohibitions on equity skimming; providing for awards of |
| 10 | damages, court costs, and attorney's fees; providing an |
| 11 | effective date. |
| 12 |
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| 13 | Be It Enacted by the Legislature of the State of Florida: |
| 14 |
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| 15 | Section 1. Paragraph (a) of subsection (1) of section |
| 16 | 494.00795, Florida Statutes, is amended to read: |
| 17 | 494.00795 Powers and duties of the commission and office; |
| 18 | investigations; examinations; injunctions; orders.-- |
| 19 | (1)(a) With the exception of individual remedies as |
| 20 | provided in s. 494.00796, the commission and office are |
| 21 | responsible for the administration and enforcement of this act. |
| 22 | Section 2. Section 494.00796, Florida Statutes, is amended |
| 23 | to read: |
| 24 | 494.00796 Enforcement.-- |
| 25 | (1) Any person or the agent, officer, or other |
| 26 | representative of any person committing a material violation of |
| 27 | the provisions of this act shall forfeit the entire interest |
| 28 | charged in the high-cost home loan or contracted to be charged |
| 29 | or received, and only the principal sum of such high-cost home |
| 30 | loan can be enforced in any court in this state, either at law |
| 31 | or in equity. |
| 32 | (1)(2) A creditor in a home loan who, when acting in good |
| 33 | faith, fails to comply with the provisions of this act shall not |
| 34 | be deemed to have violated this act if the creditor establishes |
| 35 | that within 60 days after receiving any notice from the borrower |
| 36 | of the compliance failure, which compliance failure was not |
| 37 | intentional and resulted from a bona fide error notwithstanding |
| 38 | the maintenance of procedures reasonably adapted to avoid such |
| 39 | errors, the borrower has been notified of the compliance |
| 40 | failure, appropriate restitution has been made to the borrower, |
| 41 | and appropriate adjustments are made to the loan. Bona fide |
| 42 | errors shall include, but not be limited to, clerical, |
| 43 | calculation, computer malfunction and programming, and printing |
| 44 | errors. An error of legal judgment with respect to a person's |
| 45 | obligations under this section is not a bona fide error. |
| 46 | (2) Without regard to any other remedy or relief to which |
| 47 | a person is entitled, anyone aggrieved by a violation this act |
| 48 | may bring an action for recovery of treble damages, plus |
| 49 | attorney's fees and court costs as provided in subsection (3), |
| 50 | against any person or the agent, officer, or other |
| 51 | representative of any person who has knowingly violated this |
| 52 | act. However, only actual damages, plus attorney's fees and |
| 53 | court costs, are recoverable under this section against a person |
| 54 | or the agent, officer, or other representative of any person who |
| 55 | has violated this act without actual knowledge. |
| 56 | (3)(a) In any civil litigation resulting from a violation |
| 57 | of this act, the prevailing party, after judgment in the trial |
| 58 | court and exhaustion of all appeals, if any, may receive his or |
| 59 | her reasonable attorney's fees and court costs from the |
| 60 | nonprevailing party. |
| 61 | (b) The attorney for the prevailing party shall submit a |
| 62 | sworn affidavit of his or her time spent on the case and his or |
| 63 | her costs incurred for all the motions, hearings, and appeals to |
| 64 | the trial judge who presided over the civil case. |
| 65 | (c) The trial judge may award the prevailing party the sum |
| 66 | of reasonable costs incurred in the action plus a reasonable |
| 67 | legal fee for the hours actually spent on the case as sworn to |
| 68 | in an affidavit. |
| 69 | (d) Any award of attorney's fees or court costs shall |
| 70 | become a part of the judgment and subject to execution as the |
| 71 | law allows. |
| 72 | (3) The remedies provided in this section are cumulative. |
| 73 | Section 3. Section 697.08, Florida Statutes, is amended to |
| 74 | read: |
| 75 | 697.08 Equity skimming.-- |
| 76 | (1) It is unlawful for any person, with intent to defraud |
| 77 | the owner of real property, to engage in equity skimming, which |
| 78 | is, to: |
| 79 | (a) Purchase, within a 3-year period, two or more single- |
| 80 | family dwellings, two-family dwellings, three-family dwellings, |
| 81 | or four-family dwellings, or a combination thereof, that are |
| 82 | subject to a loan that is in default at the time of purchase or |
| 83 | within 1 year after the time of purchase, which loan is secured |
| 84 | by a mortgage or deed of trust; |
| 85 | (b) Fail to make payments under the mortgage or deed of |
| 86 | trust as the payments become due, regardless of whether the |
| 87 | purchaser is obligated on the loan; and |
| 88 | (c) Apply, or authorize the application of, rents from |
| 89 | such dwellings for the person's own use. |
| 90 | (2) A violation of subsection (1) constitutes a felony of |
| 91 | the third degree, punishable as provided in s. 775.082, s. |
| 92 | 775.083, or s. 775.084. |
| 93 | (3) Without regard to any other remedy or relief to which |
| 94 | a person is entitled, anyone aggrieved by a violation of |
| 95 | subsection (1) may bring an action for recovery of treble |
| 96 | damages, plus attorney's fees and court costs as provided in |
| 97 | subsection (4), against a person who has violated subsection |
| 98 | (1). |
| 99 | (4)(a) In any civil litigation resulting from a violation |
| 100 | of subsection (1), the prevailing party, after judgment in the |
| 101 | trial court and exhaustion of all appeals, if any, may receive |
| 102 | his or her reasonable attorney's fees and court costs from the |
| 103 | nonprevailing party. |
| 104 | (b) The attorney for the prevailing party shall submit a |
| 105 | sworn affidavit of his or her time spent on the case and his or |
| 106 | her costs incurred for all the motions, hearings, and appeals to |
| 107 | the trial judge who presided over the civil case. |
| 108 | (c) The trial judge may award the prevailing party the sum |
| 109 | of reasonable costs incurred in the action plus a reasonable |
| 110 | legal fee for the hours actually spent on the case as sworn to |
| 111 | in an affidavit. |
| 112 | (d) Any award of attorney's fees or court costs shall |
| 113 | become a part of the judgment and subject to execution as the |
| 114 | law allows. |
| 115 | Section 4. This act shall take effect July 1, 2008. |