Florida Senate - 2009 (Proposed Committee Bill) SPB 7058
FOR CONSIDERATION By the Committee on Banking and Insurance
597-01995A-09 20097058__
1 A bill to be entitled
2 (PRELIMINARY DRAFT) An act relating to mortgage
3 brokering and lending; amending s. 494.001, F.S.;
4 redefining terms, defining new terms, and deleting
5 terms; amending s. 494.0011, F.S.; authorizing the
6 Financial Services Commission to adopt rules relating
7 to compliance with the S.A.F.E. Mortgage Licensing Act
8 of 2008; authorizing the commission to participate in
9 the Nationwide Mortgage Licensing System and Registry;
10 creating s. 494.00121, F.S.; providing for the
11 issuance of subpoenas; amending s. 494.0014, F.S.;
12 revising provisions relating to the refund of fees;
13 deleting an obsolete provision; capping the amount of
14 administrative fine that can be assessed for a single
15 violation at $25,000; authorizing a fine of $1,000 for
16 each day of unlicensed activity up to $25,000;
17 amending s. 494.00165, F.S.; prohibiting unfair and
18 deceptive advertising relating to mortgage brokering
19 and lending; repealing s. 494.0017, F.S., relating to
20 claims paid from the Regulatory Trust Fund; creating
21 s. 494.00172, F.S.; providing for a $20 fee to be
22 assessed against loan originators and a $100 fee to be
23 assessed against mortgage brokers and lenders at the
24 time of license application or renewal; providing that
25 such fees shall be deposited into the Mortgage
26 Guaranty Trust Fund and used to pay claims against
27 licensees; providing for a cap on the amount collected
28 and deposited; providing requirements for seeking
29 recovery from the trust fund; providing limitations on
30 the amount paid; providing for the assignment of
31 certain rights to the office; providing that payment
32 for a claim is prima facie grounds for the revocation
33 of a license; amending s. 494.0018, F.S.; conforming
34 cross-references; amending ss. 494.0019 and 494.002,
35 F.S.; conforming terms; amending s. 494.0023, F.S.;
36 providing that there is a conflicting interest if a
37 licensee or the licensee's relatives have a 1 percent
38 or more interest in the person providing additional
39 products or services; amending s. 494.0025, F.S.;
40 prohibiting the alteration, withholding, concealment,
41 or destruction of records relevant to regulated
42 activities; amending s. 494.0028, F.S.; conforming
43 terms; repealing ss. 494.0029 and 494.00295, F.S.,
44 relating to mortgage business schools and continuing
45 education requirements; providing a directive to the
46 Division of Statutory Revision; amending s. 494.003,
47 F.S.; revising provisions relating to who is exempt
48 from loan originator or mortgage broker licensing and
49 regulation; repealing s. 494.0031, F.S., relating to
50 licensure as a mortgage brokerage business; creating
51 s. 494.00312, F.S.; providing for the licensure of
52 mortgage brokers; providing license application
53 requirements; providing grounds for license denial;
54 requiring the denial of a license under certain
55 circumstances; requiring the commission to adopt rules
56 establishing time periods for barring licensure for
57 certain misdemeanors and felonies; requiring licenses
58 to renewed annually by a certain date; repealing s.
59 494.0032, F.S., relating to renewal of a mortgage
60 brokerage business license or branch office license;
61 creating s. 494.00321, F.S.; providing for the renewal
62 of a mortgage broker license; providing license
63 renewal requirements; creating s. 494.00323, F.S.;
64 providing for the licensure of loan originators;
65 providing license application requirements; providing
66 grounds for license denial; requiring the denial of a
67 license under certain circumstances; requiring the
68 commission to adopt rules establishing time periods
69 for barring licensure for certain misdemeanors and
70 felonies; requiring licenses to be renewed annually by
71 a certain date; creating s. 494.00324, F.S.; providing
72 for the renewal of a loan originator license;
73 repealing s. 494.0033, F.S., relating to a mortgage
74 broker license; amending s. 494.00331, F.S.;
75 prohibiting a loan originator from being employed or
76 contracting with more than one mortgage broker or
77 mortgage lender; repealing s. 494.0034, F.S., relating
78 to renewal of mortgage broker license; amending s.
79 494.0035, F.S.; providing for the management of a
80 mortgage broker by a principal loan originator and a
81 branch office by a loan originator; providing minimum
82 requirements; amending s. 494.0036, F.S.; revising
83 provisions relating to the licensure of a mortgage
84 broker's branch office; increasing the fees for such
85 license; amending s. 494.0038, F.S.; revising
86 provisions relating to loan origination and mortgage
87 broker fees; creating s. 494.00385, F.S.; providing
88 for loan modification fees; providing requirements and
89 limitations; amending s. 494.0039, F.S.; conforming
90 terms; amending s. 494.004, F.S.; revising provisions
91 relating to licensees; providing for registry
92 requirements; deleting obsolete provisions; amending
93 s. 494.0041, F.S.; revising provisions relating to
94 administrative fines and penalties; providing
95 additional grounds for assessing fines and penalties;
96 amending s. 494.0042, F.S.; providing for loan
97 originator fees; conforming terms; amending ss.
98 494.00421 and 494.0043, F.S.; conforming terms;
99 amending s. 494.006, F.S.; revising provisions
100 relating to who is exempt from mortgage lender
101 licensing and regulation; repealing s. 494.0061, F.S.,
102 relating to mortgage lender license requirements;
103 creating s. 494.00611, F.S.; providing for the
104 licensure of mortgage lenders; providing license
105 application requirements; providing grounds for
106 license denial; requiring the denial of a license
107 under certain circumstances; requiring the commission
108 to adopt rules establishing time periods for barring
109 licensure for certain misdemeanors and felonies;
110 requiring licenses to be renewed annually by a certain
111 date; creating s. 494.00612, F.S.; providing for the
112 renewal of a mortgage lender license; repealing s.
113 494.0062, F.S., relating to correspondent mortgage
114 lender license requirements; amending s. 494.0063,
115 F.S.; requiring a mortgage lender to obtain an annual
116 financial audit report and submit a copy to the office
117 within certain time periods; repealing s. 494.0064,
118 F.S., relating to renewal of mortgage lender license;
119 repealing s. 494.0065, F.S., relating to certain
120 licenses and registrations that were converted into
121 mortgage lender licenses; amending s. 494.0066, F.S.;
122 revising provisions relating to a mortgage lender
123 branch office license; increasing the fees for such
124 license; creating s. 494.00665, F.S.; providing for a
125 principal loan originator and branch manager for a
126 mortgage lender; providing requirements and
127 limitations; amending s. 494.0067, F.S.; revising
128 requirements of mortgage lenders; providing for
129 registry requirements; deleting obsolete provisions;
130 amending ss. 494.0068, 494.0069, 494.007, and
131 494.0071, F.S.; conforming terms; amending s.
132 494.0072, F.S.; revising provisions relating to
133 administrative fines and penalties; providing
134 additional grounds for assessing fines and penalties;
135 amending ss. 494.00721, 494.0073, 494.0075, 494.0077,
136 and 501.1377 F.S.; conforming terms; providing for the
137 termination of mortgage business school licenses;
138 providing for the expiration of mortgage brokerage
139 business licenses, mortgage broker licenses, and
140 correspondent mortgage lender licenses; providing for
141 applying for applying for a mortgage broker license
142 and a loan originator license by a certain date;
143 providing for the transfer of a mortgage lender
144 licenses; providing for a one-time $50 registry fee to
145 be imposed on new licensees; providing effective
146 dates.
147
148 Be It Enacted by the Legislature of the State of Florida:
149
150 Section 1. Section 494.001, Florida Statutes, is amended to
151 read:
152 494.001 Definitions.—As used in ss. 494.001-494.0077, the
153 term:
154 (1) “Act as a correspondent mortgage lender” means to make
155 a mortgage loan.
156 (2) “Act as a loan originator” means being employed by a
157 mortgage lender or correspondent mortgage lender, for
158 compensation or gain or in the expectation of compensation or
159 gain, to negotiate, offer to negotiate, or assist any licensed
160 or exempt entity in negotiating the making of a mortgage loan,
161 including, but not limited to, working with a licensed or exempt
162 entity to structure a loan or discussing terms and conditions
163 necessary for the delivery of a loan product. A natural person
164 whose activities are ministerial and clerical, which may include
165 quoting available interest rates, is not acting as a loan
166 originator.
167 (3) “Act as a mortgage broker” means, for compensation or
168 gain, or in the expectation of compensation or gain, either
169 directly or indirectly, accepting or offering to accept an
170 application for a mortgage loan, soliciting or offering to
171 solicit a mortgage loan on behalf of a borrower, negotiating or
172 offering to negotiate the terms or conditions of a mortgage loan
173 on behalf of a lender, or negotiating or offering to negotiate
174 the sale of an existing mortgage loan to a noninstitutional
175 investor. An employee whose activities are ministerial and
176 clerical, which may include quoting available interest rates or
177 loan terms and conditions, is not acting as a mortgage broker.
178 (4) “Act as a mortgage lender” means to make a mortgage
179 loan or to service a mortgage loan for others or, for
180 compensation or gain, or in the expectation of compensation or
181 gain, either directly or indirectly, to sell or offer to sell a
182 mortgage loan to a noninstitutional investor.
183 (5) “Associate” means a person required to be licensed as a
184 mortgage broker under this chapter who is employed by or acting
185 as an independent contractor for a mortgage brokerage business
186 or a person acting as an independent contractor for a mortgage
187 lender or correspondent mortgage lender. The use of the term
188 associate, in contexts other than in the administration of ss.
189 494.003-494.0077, shall not be construed to impose or effect the
190 common-law or statutory liability of the employer.
191 (1)(6) “Branch manager broker” means the licensed loan
192 originator licensee in charge of, and responsible for, the
193 operation of the a branch office of a mortgage broker or
194 mortgage lender brokerage business.
195 (2)(7) “Branch office” means a location, other than a
196 mortgage broker's or mortgage lender's licensee's principal
197 place of business:
198 (a) The address of which appears on business cards,
199 stationery, or advertising used by the licensee in connection
200 with business conducted under this chapter;
201 (b) At which the licensee's name, advertising or
202 promotional materials, or signage suggest that mortgage loans
203 are originated, negotiated, funded, or serviced; or
204 (c) At which, due to the actions of any employee or
205 associate of the licensee, may be construed by the public as a
206 branch office of the licensee where mortgage loans are
207 originated, negotiated, funded, or serviced by a licensee.
208 (3)(8) “Commission” means the Financial Services
209 Commission.
210 (4)(9) “Control person” means an individual, partnership,
211 corporation, trust, or other organization that possesses the
212 power, directly or indirectly, to direct the management or
213 policies of a company, whether through ownership of securities,
214 by contract, or otherwise. Control person includes, but is not
215 limited to A person is presumed to control a company if, with
216 respect to a particular company, that person:
217 (a) A company’s executive officers, including the
218 president, chief executive officer, chief financial officer,
219 chief operations officer, chief legal officer, chief compliance
220 officer, director, and other individuals with similar status or
221 functions.
222 (b) For a corporation, each shareholder that, directly or
223 indirectly, owns 10 percent or more or that has the power to
224 vote 10 percent or more, of a class of voting securities unless
225 the applicant is a publicly-traded company.
226 (c) For a partnership, all general partners and limited or
227 special partners that have contributed 10 percent or more or
228 that have the right to receive, upon dissolution, 10 percent or
229 more of the partnership’s capital.
230 (d) For a trust, each trustee.
231 (e) For a limited liability company, all elected managers
232 and those members that have contributed 10 percent or more or
233 that have the right to receive, upon dissolution, 10 percent or
234 more of the partnership’s capital.
235 (f) Principal loan originators.
236 (5) “Depository institution” has the same meaning as in s.
237 (3)(c) of the Federal Deposit Insurance Act, and includes any
238 credit union.
239 (a) Is a director, general partner, or officer exercising
240 executive responsibility or having similar status or functions;
241 (b) Directly or indirectly may vote 10 percent or more of a
242 class of voting securities or sell or direct the sale of 10
243 percent or more of a class of voting securities; or
244 (c) In the case of a partnership, may receive upon
245 dissolution or has contributed 10 percent or more of the
246 capital.
247 (10) “Office” means the Office of Financial Regulation of
248 the commission.
249 (11) “Employed” means engaged in the service of another for
250 salary or wages subject to withholding, FICA, or other lawful
251 deductions by the employer as a condition of employment.
252 (12) “Employee” means a natural person who is employed and
253 who is subject to the right of the employer to direct and
254 control the actions of the employee.
255 (13) “Good standing” means that the registrant or licensee,
256 or a subsidiary or affiliate thereof, is not, at the time of
257 application, being penalized for one or more of the following
258 disciplinary actions by a licensing authority of any state,
259 territory, or country:
260 (a) Revocation of a license or registration.
261 (b) Suspension of a license or registration.
262 (c) Probation of a license or registration for an offense
263 involving fraud, dishonest dealing, or an act of moral
264 turpitude.
265 (6) “Financial audit report” means a report prepared in
266 connection with a financial audit that is conducted in
267 accordance with generally accepted auditing standards prescribed
268 by the American Institute of Certified Public Accountants by a
269 certified public accountant licensed to do business in the
270 United States, and which must include:
271 (a) Financial statements, including notes related to the
272 financial statements and required supplementary information,
273 prepared in conformity with accounting principles generally
274 accepted in the United States.
275 (b) An expression of opinion regarding whether the
276 financial statements are presented in conformity with accounting
277 principles generally accepted in the United States, or an
278 assertion to the effect that such an opinion cannot be expressed
279 and the reasons.
280 (7)(14) “Institutional investor” means a depository
281 institution state or national bank, state or federal savings and
282 loan association or savings bank, real estate investment trust,
283 insurance company, real estate company, accredited investor as
284 defined in 17 C.F.R. ss. 230.501 et seq., mortgage broker or
285 mortgage lender business licensed under this chapter ss.
286 494.001-494.0077, or other business entity that invests in
287 mortgage loans, including a secondary mortgage market
288 institution including, without limitation, the Federal National
289 Mortgage Association, the Federal Home Loan Mortgage
290 Corporation, and the Government National Mortgage Association,
291 conduits, investment bankers, and any subsidiary of such
292 entities.
293 (8)(15) “Loan commitment” or “commitment” means a statement
294 by the lender setting forth the terms and conditions upon which
295 the lender is willing to make a particular mortgage loan to a
296 particular borrower.
297 (9) “Loan modification” means a modification to an existing
298 loan. The term does not include a refinancing transaction.
299 (10) “Loan origination fee” means the total compensation
300 from any source received by a mortgage broker acting as a loan
301 originator. Any payment for processing mortgage loan
302 applications must be included in the fee and must be paid to the
303 mortgage broker.
304 (11) “Loan originator” means an individual who is an
305 employee of, or contracts with, a mortgage broker or a mortgage
306 lender, and who, directly or indirectly, solicits or offers to
307 solicit a mortgage loan, accepts or offers to accept an
308 application for a mortgage loan, negotiates or offers to
309 negotiate the terms or conditions of a new or existing mortgage
310 loan on behalf of a borrower or lender, processes a mortgage
311 loan application, or negotiates or offers to negotiate the sale
312 of an existing mortgage loan to a noninstitutional investor for
313 compensation or gain. The term includes the activities of a loan
314 originator as that term is defined in the S.A.F.E. Mortgage
315 Licensing Act of 2008, and an individual acting as a loan
316 originator pursuant to that definition is acting as a loan
317 originator for purposes of this definition. The term does not
318 include:
319 (a) An employee of a loan originator who performs only
320 administrative or clerical tasks on behalf of a loan originator.
321 The term “administrative or clerical tasks” means the receipt,
322 collection, and distribution of information for the processing
323 or underwriting of a mortgage loan and communication with a
324 consumer to obtain information necessary for the processing or
325 underwriting of a mortgage loan.
326 (b) A loan processor or underwriter who does not represent
327 to the public, through advertising or other means of
328 communicating or providing information, including the use of
329 business cards, stationery, brochures, signs, rate lists, or
330 other promotional items, that he or she can or will perform any
331 of the activities of a loan originator.
332 (12) “Loan processor or underwriter” means an individual
333 who performs clerical or support duties at the direction of, and
334 subject to, the supervision and instruction of a state-licensed
335 loan originator or a registered loan originator. The term
336 “clerical or support duties” may include the receipt,
337 collection, distribution, and analysis of information for the
338 processing or underwriting of a mortgage loan, and communication
339 with a consumer to obtain the information necessary for the
340 processing or underwriting of a loan, to the extent that such
341 communication does not include offering or negotiating loan
342 rates or terms, or counseling consumers about mortgage loan
343 rates or terms.
344 (13)(16) “Lock-in agreement” means an agreement whereby the
345 lender guarantees for a specified number of days or until a
346 specified date the availability of a specified rate of interest
347 or specified formula by which the rate of interest will be
348 determined or and/or specific number of discount points will be
349 given, if the loan is approved and closed within the stated
350 period of time.
351 (14)(17) “Making Make a mortgage loan” means to close a
352 mortgage loan in a person's name; or to advance funds, offer to
353 advance funds, or make a commitment to advance funds to an
354 applicant for a mortgage loan; or to provide funds in a table
355 funded transaction.
356 (15) “Mortgage broker” means a person conducting loan
357 originator activities through one or more licensed loan
358 originators employed by the mortgage broker or as independent
359 contractors to the mortgage broker.
360 (18) “Mortgage brokerage fee” means a fee received for
361 acting as a mortgage broker.
362 (19) “Mortgage brokerage business” means a person acting as
363 a mortgage broker.
364 (16) “Mortgage lender” means a person making a mortgage
365 loan, servicing a mortgage loan for others, or providing funds
366 in a table-funded transaction.
367 (17)(20) “Mortgage loan” means any:
368 (a) Residential mortgage loan primarily for personal,
369 family, or household use which is secured by a mortgage, deed of
370 trust, or other equivalent consensual security interest on a
371 dwelling, as defined in s. 103(v) of the federal Truth in
372 Lending Act, or for the purchase of residential real estate upon
373 which a dwelling is to be constructed;
374 (b) Loan on commercial real property if the borrower is a
375 natural person or the lender is a noninstitutional investor; or
376 (c) Loan on improved real property consisting of five or
377 more dwelling units if the borrower is a natural person or the
378 lender is a noninstitutional investor.
379 (18) “Mortgage loan application” means the submission of a
380 borrower's financial information in anticipation of a credit
381 decision, whether written or computer-generated, relating to
382 obtaining a mortgage loan for specified property. If the
383 submission does not state or identify a specific property, the
384 submission is an application for a prequalification and not a
385 mortgage loan application under this part. The subsequent
386 addition of an identified property to the submission converts
387 the submission to a mortgage loan application.
388 (19)(21) “Net worth” means total assets minus total
389 liabilities pursuant to United States generally accepted
390 accounting principles.
391 (20)(22) “Noninstitutional investor” means an investor
392 other than an institutional investor.
393 (23) “Nonresidential mortgage loan” means a mortgage loan
394 other than a residential mortgage loan.
395 (21) “Office” means the Office of Financial Regulation.
396 (22)(24) “Person” has the same meaning as in s. 1.01 means
397 an individual, partnership, corporation, association, or other
398 group, however organized.
399 (25) “Principal broker” means a licensee in charge of, and
400 responsible for, the operation of the principal place of
401 business and all branch brokers.
402 (23) “Principal loan originator” means the licensed loan
403 originator in charge of, and responsible for, the operation of a
404 mortgage lender or mortgage broker, including all of the
405 activities of the mortgage lender’s or mortgage broker’s loan
406 originators and branch managers, whether employees or
407 independent contractors.
408 (24)(26) “Principal place of business” means a mortgage
409 broker's or mortgage lender's licensee's primary business
410 office, the street address, or physical location that of which
411 is designated on the application for licensure or any amendment
412 to such application.
413 (25) “Registered” means a loan originator who is employed
414 by a depository institution, by a subsidiary that is owned and
415 controlled by a depository institution and regulated by a
416 federal banking agency, or by an institution regulated by the
417 Farm Credit Administration, and who is registered with and
418 maintains a unique identifier through the registry.
419 (26) “Registry” means the Nationwide Mortgage Licensing
420 System and Registry,” which is the mortgage licensing system
421 developed and maintained by the Conference of State Bank
422 Supervisors and the American Association of Residential Mortgage
423 Regulators for the licensing and registration of loan
424 originators.
425 (27) “Residential mortgage loan” means any mortgage or
426 other security instrument secured by improved real property
427 consisting of no more than four dwelling units.
428 (27)(28) “Servicing Service a mortgage loan” means to
429 receive, or cause to be received, or transferred for another,
430 installment payments of principal, interest, or other payments
431 pursuant to a mortgage loan.
432 (28)(29) “Substantial fault of the borrower” means that the
433 borrower:
434 (a) Failed to provide information or documentation required
435 by the lender or broker in a timely manner;
436 (b) Provided information, in the application or
437 subsequently, which upon verification proved to be significantly
438 inaccurate, causing the need for review or further investigation
439 by the lender or broker;
440 (c) Failed to produce by no later than the date specified
441 by the lender all documentation specified in the commitment or
442 closing instructions as being required for closing; or
443 (d) Failed to be ready, willing, or able to close the loan
444 by no later than the date specified by the lender or broker.
445 For purposes of this definition, a borrower is considered
446 to have provided information or documentation in a timely manner
447 if such information and documentation was received by the lender
448 within 7 days after the borrower received a request for same,
449 and information is considered significantly inaccurate if the
450 correct information materially affects the eligibility of the
451 borrower for the loan for which application is made.
452 (29) “Table-funded loan” means a transaction in which a
453 mortgage broker closes a loan in the mortgage broker's own name
454 with funds provided by others, and the loan is simultaneously
455 assigned to the mortgage lender providing the funding.
456 (30) “Ultimate equitable owner” means a natural person who,
457 directly or indirectly, owns or controls an ownership interest
458 in a corporation, a foreign corporation, an alien business
459 organization, or any other form of business organization,
460 regardless of whether such natural person owns or controls such
461 ownership interest through one or more natural persons or one or
462 more proxies, powers of attorney, nominees, corporations,
463 associations, partnerships, trusts, joint stock companies, or
464 other entities or devices, or any combination thereof.
465 (31) “Principal representative” means an individual who
466 operates the business operations of a licensee under part III.
467 (32) “Mortgage loan application” means a submission of a
468 borrower's financial information in anticipation of a credit
469 decision, whether written or computer-generated, relating to a
470 mortgage loan. If the submission does not state or identify a
471 specific property, the submission is an application for a
472 prequalification and not an application for a mortgage loan
473 under this part. The subsequent addition of an identified
474 property to the submission converts the submission to an
475 application for a mortgage loan.
476 (33) “Mortgage brokerage fee” means the total compensation
477 to be received by a mortgage brokerage business for acting as a
478 mortgage broker.
479 (34) “Business day” means any calendar day except Sunday or
480 a legal holiday.
481 Section 2. Section 494.0011, Florida Statutes, is amended
482 to read:
483 494.0011 Powers and duties of the commission and office.—
484 (1) The office shall be responsible for the administration
485 and enforcement of ss. 494.001-494.0077.
486 (2) The commission may adopt rules pursuant to ss.
487 120.536(1) and 120.54 To administer implement ss. 494.001
488 494.0077,. the commission may adopt rules:
489 (a) Requiring electronic submission of any forms,
490 documents, or fees required by this act if such rules reasonably
491 accommodate technological or financial hardship.
492 (b) Relating to compliance with the S.A.F.E. Mortgage
493 Licensing Act of 2008, including rules to:
494 1. Require loan originators, mortgage brokers, mortgage
495 lenders, and branch offices to register through the registry.
496 2. Require the use of uniform forms that have been approved
497 by the registry, and any subsequent amendments to such forms if
498 the forms are substantially in compliance with the provisions of
499 this chapter. Uniform forms that the commission may adopt
500 include, but are not limited to:
501 a. Uniform Mortgage Lender/Mortgage Broker Form, MU1.
502 b. Uniform Mortgage Biographical Statement & Consent Form,
503 MU2.
504 c. Uniform Mortgage Branch Office Form, MU3.
505 d. Uniform Individual Mortgage License/Registration &
506 Consent Form, MU4.
507 3. Require the filing of forms, documents, and fees in
508 accordance with the requirements of the registry.
509 4. Prescribe requirements for amending or surrendering a
510 license or other activities as the commission deems necessary
511 for the office's participation in the registry.
512 5. Prescribe procedures that allow a licensee to challenge
513 information contained in the registry.
514 6. Prescribe procedures for reporting violations of this
515 chapter and disciplinary actions on licensees to the registry.
516 The commission may prescribe by rule requirements and procedures
517 for obtaining an exemption due to a technological or financial
518 hardship. The commission may also adopt rules to accept
519 certification of compliance with requirements of this act in
520 lieu of requiring submission of documents.
521 (3) Except as provided in s. 492.00172, all fees, charges,
522 and fines collected pursuant to ss. 494.001-494.0077 shall be
523 deposited in the State Treasury to the credit of the Regulatory
524 Trust Fund of under the office.
525 (4) The office may participate in the registry and shall
526 regularly report to the registry violations of this chapter,
527 disciplinary actions, and other information deemed relevant by
528 the office under this chapter.
529 (4)(a) The office has the power to issue and to serve
530 subpoenas and subpoenas duces tecum to compel the attendance of
531 witnesses and the production of all books, accounts, records,
532 and other documents and materials relevant to an examination or
533 investigation. The office, or its duly authorized
534 representative, has the power to administer oaths and
535 affirmations to any person.
536 (b) The office may, in its discretion, seek subpoenas or
537 subpoenas duces tecum from any court of competent jurisdiction
538 commanding the appearance of witnesses and the production of
539 books, accounts, records, and other documents or materials at a
540 time and place named in the subpoenas; and any authorized
541 representative of the office may serve any subpoena.
542 (5)(a) In the event of substantial noncompliance with a
543 subpoena or subpoena duces tecum issued or caused to be issued
544 by the office, the office may petition the circuit court or any
545 other court of competent jurisdiction of the county in which the
546 person subpoenaed resides or has its principal place of business
547 for an order requiring the subpoenaed person to appear and
548 testify and to produce such books, accounts, records, and other
549 documents as are specified in the subpoena duces tecum. The
550 court may grant injunctive relief restraining the person from
551 advertising, promoting, soliciting, entering into, offering to
552 enter into, continuing, or completing any mortgage loan
553 transaction or mortgage loan servicing transaction. The court
554 may grant such other relief, including, but not limited to, the
555 restraint, by injunction or appointment of a receiver, of any
556 transfer, pledge, assignment, or other disposition of the
557 person's assets or any concealment, alteration, destruction, or
558 other disposition of books, accounts, records, or other
559 documents and materials as the court deems appropriate, until
560 the person has fully complied with the subpoena duces tecum and
561 the office has completed its investigation or examination. In
562 addition, the court may order the refund of any fees collected
563 in a mortgage loan transaction whenever books and documents
564 substantiating the transaction are not produced or cannot be
565 produced. The office is entitled to the summary procedure
566 provided in s. 51.011, and the court shall advance such cause on
567 its calendar. Attorney's fees and any other costs incurred by
568 the office to obtain an order granting, in whole or part, a
569 petition for enforcement of a subpoena or subpoena duces tecum
570 shall be taxed against the subpoenaed person, and failure to
571 comply with such order is a contempt of court.
572 (b) When it appears to the office that the compliance with
573 a subpoena or subpoena duces tecum issued or caused to be issued
574 by the office pursuant to this section is essential and
575 otherwise unavailable to an investigation or examination, the
576 office, in addition to the other remedies provided for in this
577 section, may apply to the circuit court or any other court of
578 competent jurisdiction of the county in which the subpoenaed
579 person resides or has its principal place of business for a writ
580 of ne exeat. The court shall thereupon direct the issuance of
581 the writ against the subpoenaed person requiring sufficient bond
582 conditioned on compliance with the subpoena or subpoena duces
583 tecum. The court shall cause to be endorsed on the writ a
584 suitable amount of bond upon the payment of which the person
585 named in the writ shall be freed, having a due regard to the
586 nature of the case.
587 (c) Alternatively, the office may seek a writ of attachment
588 from the court having jurisdiction over the person who has
589 refused to obey a subpoena, who has refused to give testimony,
590 or who has refused to produce the matters described in the
591 subpoena duces tecum.
592 (6) The grant or denial of any license under this chapter
593 must be in accordance with s. 120.60.
594 Section 3. Section 494.00121, Florida Statutes, is created
595 to read:
596 494.00121 Subpoenas.—
597 (1) The office may:
598 (a) Issue and serve subpoenas and subpoenas duces tecum to
599 compel the attendance of witnesses and the production of all
600 books, accounts, records, and other documents and materials
601 relevant to an examination or investigation conducted by the
602 office. The office, or its authorized representative, may
603 administer oaths and affirmations to any person.
604 (b) Seek subpoenas or subpoenas duces tecum from any court
605 to command the appearance of witnesses and the production of
606 books, accounts, records, and other documents or materials at a
607 time and place named in the subpoenas, and an authorized
608 representative of the office may serve such subpoena.
609 (2) If there is substantial noncompliance with a subpoena
610 or subpoena duces tecum issued by the office, the office may
611 petition the court in the county where the person subpoenaed
612 resides or has his or her principal place of business for an
613 order requiring the person to appear, testify, or produce such
614 books, accounts, records, and other documents as are specified
615 in the subpoena or subpoena duces tecum.
616 (a) The court may grant injunctive relief restraining the
617 person from advertising, promoting, soliciting, entering into,
618 offering to enter into, continuing, or completing a mortgage
619 loan or servicing a mortgage loan.
620 (b) The court may grant such other relief, including, but
621 not limited to, the restraint, by injunction or appointment of a
622 receiver, of any transfer, pledge, assignment, or other
623 disposition of the person's assets or any concealment,
624 alteration, destruction, or other disposition of books,
625 accounts, records, or other documents and materials as the court
626 deems appropriate, until the person has fully complied with the
627 subpoena duces tecum and the office has completed its
628 investigation or examination.
629 (c) The court may order the refund of any fees collected in
630 a mortgage loan transaction if books and documents
631 substantiating the transaction are not produced or cannot be
632 produced.
633 (d) If it appears to the office that compliance with a
634 subpoena or subpoena duces tecum issued is essential and
635 otherwise unavailable to an investigation or examination, the
636 office may apply to the court for a writ of ne exeat pursuant to
637 s. 68.02.
638 (e) The office may seek a writ of attachment to obtain all
639 books, accounts, records, and other documents and materials
640 relevant to an examination or investigation.
641 (3) The office is entitled to the summary procedure
642 provided in s. 51.011, and the court shall advance such cause on
643 its calendar. Attorney's fees and any other costs incurred by
644 the office to obtain an order granting, in whole or in part, a
645 petition for enforcement of a subpoena or subpoena duces tecum
646 shall be taxed against the subpoenaed person, and failure to
647 comply with such order is a contempt of court.
648 Section 4. Section 494.0014, Florida Statutes, is amended
649 to read:
650 494.0014 Cease and desist orders; administrative fines;
651 refund orders; administrative fines.—
652 (1) The office may has the power to issue and serve upon
653 any person an order to cease and desist and to take corrective
654 action if whenever it has reason to believe the person is
655 violating, has violated, or is about to violate any provision of
656 ss. 494.001-494.0077, any rule or order issued under ss.
657 494.001-494.0077, or any written agreement between the person
658 and the office. All procedural matters relating to issuance and
659 enforcement of such a cease and desist order are governed by the
660 Administrative Procedure Act.
661 (2) The office may has the power to order the refund of any
662 fee directly or indirectly assessed and charged on a mortgage
663 loan transaction which is unauthorized or exceeds the maximum
664 fee specifically authorized in ss. 494.001-494.0077, or any
665 amount collected for the payment of third-party fees which
666 exceeds the cost of the service provided.
667 (3) The office may prohibit the association by a mortgage
668 broker business, or the employment by a mortgage lender or
669 correspondent mortgage lender, of any person who has engaged in
670 a pattern of misconduct while an associate of a mortgage
671 brokerage business or an employee of a mortgage lender or
672 correspondent mortgage lender. For the purpose of this
673 subsection, the term “pattern of misconduct” means the
674 commission of three or more violations of ss. 494.001-494.0077
675 or the provisions of chapter 494 in effect prior to October 1,
676 1991, during any 1-year period or any criminal conviction for
677 violating ss. 494.001-494.0077 or the provisions of chapter 494
678 in effect prior to October 1, 1991.
679 (3)(4) The office may impose an administrative fine of:
680 (a) Up to $25,000 upon any person who makes or brokers a
681 loan, or any mortgage business school, a fine for each separate
682 violation violations of any provision of ss. 494.001-494.0077
683 ss. 494.001-494.00295 or any rule or order issued under those
684 sections ss. 494.001-494.00295 in an amount not exceeding $5,000
685 for each separate count or offense.
686 (b) Up to $1,000 per day, but not to exceed $25,0000
687 cumulatively, for each day that an unlicensed person acts as a
688 loan originator, a mortgage broker, or a mortgage lender. The
689 office may also impose an administrative fine of up to $1000 per
690 day, but not to exceed $25,0000 cumulatively, for each day that
691 a mortgage broker or mortgage lender conducts business at an
692 unlicensed branch office.
693 Section 5. Section 494.00165, Florida Statutes, is amended
694 to read:
695 494.00165 Prohibited advertising; record requirements.—
696 (1) It is a violation of this chapter for any person to:
697 (a) Advertise that an applicant shall will have unqualified
698 access to credit without disclosing the what material
699 limitations on the availability of such credit exist. Such
700 Material limitations include, but are not limited to, the
701 percentage of down payment required, that a higher rate or
702 points could be required, or that restrictions on as to the
703 maximum principal amount of the loan offered could apply.
704 (b) Advertise a mortgage loan at an expressed interest rate
705 unless the advertisement specifically states that the expressed
706 rate could change or not be available at commitment or closing.
707 (c) Advertise mortgage loans, including rates, margins,
708 discounts, points, fees, commissions, or other material
709 information, including material limitations on such loans,
710 unless the such person is able to make such mortgage loans
711 available to a reasonable number of qualified applicants.
712 (d) Falsely advertise or misuse names indicating a federal
713 agency pursuant to 18 U.S.C. s. 709.
714 (e) Engage in unfair, deceptive, or misleading advertising
715 regarding mortgage loans, brokering services, or lending
716 services.
717 (2) Each person required to be licensed under this chapter
718 must shall maintain a record of samples of each of its
719 advertisements, including commercial scripts of each radio or
720 television broadcast, for examination by the office for a period
721 of 2 years after the date of publication or broadcast.
722 Section 6. Section 494.0017, Florida Statutes, is repealed.
723 Section 7. Section 494.00172, Florida Statutes, is created
724 to read:
725 494.00172 Mortgage Guaranty Trust Fund; payment of fees
726 and claims.—A nonrefundable fee is imposed on each application
727 for a mortgage broker, mortgage lender, or loan originator
728 license and on each annual application for a renewal of such
729 license. For a loan originator, the initial and renewal fee is
730 $20. For mortgage brokers and lenders, the initial and renewal
731 fee is $100. This fee is in addition to the regular application
732 or renewal fee assessed and shall be deposited into the Mortgage
733 Guaranty Trust Fund of the office for the payment of claims in
734 accordance with this section.
735 (1) If the amount in the trust fund exceeds $5 million, the
736 additional $100 fee shall be discontinued and may not be
737 reimposed until the fund is reduced to below $1 million pursuant
738 to disbursements made in accordance with this section.
739 (2) A borrower in a mortgage loan transaction is eligible
740 to seek recovery from the trust fund if all of the following
741 conditions are met:
742 (a) The borrower has recorded a final judgment issued by a
743 state court wherein the cause of action against a licensee under
744 this chapter was based on a violation of this chapter and the
745 damages were the result of that violation.
746 (b) The borrower has caused a writ of execution to be
747 issued upon such judgment, and the officer executing the
748 judgment has made a return showing that no personal or real
749 property of the judgment debtor liable to be levied upon in
750 satisfaction of the judgment can be found or that the amount
751 realized on the sale of the judgment debtor's property pursuant
752 to such execution is insufficient to satisfy the judgment.
753 (c) The borrower has made all reasonable searches and
754 inquiries to ascertain whether the judgment debtor possesses
755 real or personal property or other assets subject to being sold
756 or applied in satisfaction of the judgment, and has discovered
757 no such property or assets; or he or she has discovered property
758 and assets and has taken all necessary action and proceedings
759 for the application thereof to the judgment, but the amount
760 realized is insufficient to satisfy the judgment.
761 (d) The borrower has applied any amounts recovered from the
762 judgment debtor, or from any other source, to the damages
763 awarded by the court.
764 (e) The borrower, at the time the action was instituted,
765 gave notice and provided a copy of the complaint to the office
766 by certified mail. The requirement of a timely giving of notice
767 may be waived by the office upon a showing of good cause.
768 (f) The act for which recovery is sought occurred on or
769 after January 1, 2010.
770 (3) The requirements of subsection (2) are not applicable
771 if the licensee upon which the claim is sought has filed for
772 bankruptcy or has been adjudicated bankrupt. However, the
773 claimant must file a proof of claim in the bankruptcy
774 proceedings and must notify the office by certified mail of the
775 claim by enclosing a copy of the proof of claim and all
776 supporting documents.
777 (4) Any person who meets all of the conditions in
778 subsection (2) may apply to the office for payment from the
779 trust fund equal to the unsatisfied portion of that person's
780 judgment or $50,000, whichever is less, but only to the extent
781 and amount reflected in the judgment as being for actual or
782 compensatory damages. Actual or compensatory damages may not
783 include post-judgment interest.
784 (a) A borrower may not collect more than $50,000 from the
785 trust fund for any claim regardless of the number of licensees
786 liable for the borrower’s damages.
787 (b) Payments for claims are limited in the aggregate to
788 $250,000 against any one licensee under this chapter. If the
789 total claims exceed the aggregate limit of $250,000, the office
790 shall prorate payments based on the ratio that a claim bears to
791 the total claims filed.
792 (c) Payments shall be made to all persons meeting the
793 requirements of subsection (2) 2 years after the date the first
794 complete and valid notice is received by the office. Persons who
795 give notice after 2 years and who otherwise comply with the
796 conditions precedent to recovery may recover from any remaining
797 portion of the $250,000 aggregate as provided in this
798 subsection, with claims being paid in the order notice was
799 received until the $250,000 aggregate has been disbursed.
800 (d) The claimant shall assign his right, title, and
801 interest in the judgment, to the extent of his recovery from the
802 fund, to the office and shall record, at his own expense, the
803 assignment of judgment in every county where the judgment is
804 recorded.
805 (e) If the money in the fund is insufficient to satisfy any
806 valid claim or portion thereof, the office shall satisfy such
807 unpaid claim or portion as soon as a sufficient amount of money
808 has been deposited in the trust fund. If there is more than one
809 unsatisfied claim outstanding, such claims shall be paid in the
810 order in which the claims were filed with the office.
811 (f) The payment of any amount from the fund in settlement
812 of a claim or in satisfaction of a judgment against a licensee
813 constitutes prima facie grounds for the revocation of the
814 license.
815 Section 8. Section 494.0018, Florida Statutes, is amended
816 to read:
817 494.0018 Penalties.—
818 (1) Whoever knowingly violates any provision of s.
819 494.0042(1)(e), (f), or (g) s. 494.0041(2)(e), (f), or (g); s.
820 494.0072(1)(e), (f), or (g) s. 494.0072(2)(e), (f), or (g); or
821 s. 494.0025(1), (2), (3), (4), or (5), except as provided in
822 subsection (2) of this section, commits is guilty of a felony of
823 the third degree, punishable as provided in s. 775.082, s.
824 775.083, or s. 775.084. Each such violation constitutes a
825 separate offense.
826 (2) Any person convicted of a violation of any provision of
827 ss. 494.001-494.0077, in which violation the total value of
828 money and property unlawfully obtained exceeds exceeded $50,000
829 and there were five or more victims, commits is guilty of a
830 felony of the first degree, punishable as provided in s.
831 775.082, s. 775.083, or s. 775.084.
832 Section 9. Section 494.0019, Florida Statutes, is amended
833 to read:
834 494.0019 Liability in case of unlawful transaction.—
835 (1) If a mortgage loan transaction is made in violation of
836 any provision of ss. 494.001-494.0077, the person making the
837 transaction and every licensee, director, or officer who
838 participated in making the transaction are jointly and severally
839 liable to every party to the transaction in an action for
840 damages incurred by the party or parties.
841 (2) A person is not liable under this section upon a
842 showing that such person's licensees, officers, and directors
843 who participated in making the mortgage loan transaction, if
844 any, acted in good faith and without knowledge and, with the
845 exercise of due diligence, could not have known of the act
846 committed in violation of ss. 494.001-494.0077.
847 Section 10. Section 494.002, Florida Statutes, is amended
848 to read:
849 494.002 Statutory or common-law remedies.—Sections Nothing
850 in ss. 494.001-494.0077 do not limit limits any statutory or
851 common-law right of any person to bring any action in any court
852 for any act involved in the mortgage loan business or the right
853 of the state to punish any person for any violation of any law.
854 Section 11. Section 494.0023, Florida Statutes, is amended
855 to read:
856 494.0023 Conflicting interest.—
857 (1) If, in a mortgage transaction, a licensee has a
858 conflicting interest as specified in subsection (2):
859 (a) The type of conflicting interest shall be fully and
860 fairly disclosed;.
861 (b) The licensee shall inform the borrower in writing that
862 a financial benefit may be received by the licensee as a result
863 of the conflicting interest; and.
864 (c) The borrower shall be informed that alternative sources
865 may be chosen by the borrower to provide any required services.
866 The following language must be included contained in 12-point
867 type in any agreement between a mortgage broker, mortgage
868 lender, or correspondent mortgage lender and a borrower in
869 substantially this form:
870 You are not required to purchase additional products or
871 services from any person or entity suggested or recommended by
872 (Broker/Lender/Correspondent Lender). However, the
873 (Broker/Lender/Correspondent Lender) hereby reserves the right
874 to approve the entity selected by the borrower, which approval
875 may not be unreasonably withheld.
876 (2) A licensee has a conflicting interest if:
877 (a) The licensee or the licensee's relative provides the
878 borrower with additional products or services;
879 (b) The licensee or licensee's relative, either directly or
880 indirectly, owns, controls, or holds with power to vote, or
881 holds proxies representing, 1 10 percent or more of any class of
882 equity securities or other beneficial interest in the such
883 person providing the additional products or services;
884 (c) The person providing the additional products or
885 services, either directly or indirectly, owns, controls, or
886 holds the power to vote, or holds proxies representing, 1 10
887 percent or more of any class of equity securities or other
888 beneficial interest in the licensee;
889 (d) A holding company, either directly or indirectly, owns,
890 controls, or holds with power to vote, or holds proxies
891 representing, 1 10 percent or more of any class of equity
892 securities or other beneficial interest in both the licensee and
893 the person providing the additional products or services;
894 (e) One or more persons, or such person's relative, sits as
895 an officer or director, or performs similar functions as an
896 officer or director, for both the licensee and the person
897 providing the additional products or services; or
898 (f) The licensee or the licensee's relative sits as an
899 officer or director, or performs similar functions as an officer
900 or director, of the person providing the additional products or
901 services.
902 (3) As used in this section, the term “relative” of any
903 natural person means any of the following persons, whether by
904 the full or half blood or by adoption:
905 (a) Such person's spouse, father, mother, children,
906 brothers, and sisters.
907 (b) The father, mother, brothers, and sisters of such
908 person's spouse.
909 (c) The spouses of children, brothers, or sisters of such
910 person.
911 Section 12. Section 494.0025, Florida Statutes, is amended
912 to read:
913 494.0025 Prohibited practices.—It is unlawful for any
914 person:
915 (1) To act as a mortgage lender in this state without a
916 current, active license issued by the office pursuant to part
917 III of this chapter ss. 494.006-494.0077.
918 (2) To act as a loan originator correspondent mortgage
919 lender in this state without a current, active license issued by
920 the office pursuant to part II of this chapter ss. 494.006
921 494.0077.
922 (3) To act as a mortgage broker in this state without a
923 current, active license issued by the office pursuant to part II
924 of this chapter ss. 494.003-494.0043.
925 (4) In any practice or transaction or course of business
926 relating to the sale, purchase, negotiation, promotion,
927 advertisement, or hypothecation of mortgage loan transactions,
928 directly or indirectly:
929 (a) To knowingly or willingly employ any device, scheme, or
930 artifice to defraud;
931 (b) To engage in any transaction, practice, or course of
932 business which operates as a fraud upon any person in connection
933 with the purchase or sale of any mortgage loan; or
934 (c) To obtain property by fraud, willful misrepresentation
935 of a future act, or false promise.
936 (5) In any matter within the jurisdiction of the office, to
937 knowingly and willfully falsify, conceal, or cover up by a
938 trick, scheme, or device a material fact, make any false or
939 fraudulent statement or representation, or make or use any false
940 writing or document, knowing the same to contain any false or
941 fraudulent statement or entry.
942 (6) To violate s. 655.922(2), subject to ss. 494.001
943 494.0077.
944 (7) Who is required to be licensed under ss. 494.006
945 494.0077, to fail to report to the office the failure to meet
946 the net worth requirements of s. 494.0061, s. 494.0062, or s.
947 494.0065 within 48 hours after the person's knowledge of such
948 failure or within 48 hours after the person should have known of
949 such failure.
950 (7)(8) To pay a fee or commission in any mortgage loan
951 transaction to any person or entity other than a licensed
952 mortgage broker brokerage business, mortgage lender, or
953 correspondent mortgage lender, operating under an active
954 license, or a person exempt from licensure under this chapter.
955 (8)(9) To record a mortgage brokerage agreement or any
956 other document, not rendered by a court of competent
957 jurisdiction, which purports to enforce the terms of the
958 mortgage brokerage agreement.
959 (9)(10) To use the name or logo of a financial institution,
960 as defined in s. 655.005(1), or its affiliates or subsidiaries
961 when marketing or soliciting existing or prospective customers
962 if such marketing materials are used without the written consent
963 of the financial institution and in a manner that would lead a
964 reasonable person to believe that the material or solicitation
965 originated from, was endorsed by, or is related to or the
966 responsibility of the financial institution or its affiliates or
967 subsidiaries.
968 (10) Subject to investigation or examination under this
969 chapter, to knowingly alter, withhold, conceal, or destroy any
970 books, records, computer records, or other information relating
971 to a person’s activities which subject the person to the
972 jurisdiction of this chapter.
973 Section 13. Section 494.0028, Florida Statutes, is amended
974 to read:
975 494.0028 Arbitration.—
976 (1) This section applies to any mortgage broker brokerage
977 agreement, servicing agreement, loan application, or purchase
978 agreement that which provides for arbitration between:
979 (a) A noninstitutional investor and a mortgage lender
980 servicing or correspondent mortgage lender to service a mortgage
981 loan.
982 (b) A borrower and a mortgage broker brokerage business,
983 mortgage lender, or correspondent mortgage lender to obtain a
984 mortgage loan.
985 (c) A noninstitutional investor and a mortgage broker
986 brokerage business, mortgage lender, or correspondent mortgage
987 lender to fund or purchase a mortgage loan.
988 (2) All agreements subject to this section must shall
989 provide that, at the voluntary election of the noninstitutional
990 investor or borrower, disputes shall be handled by either a
991 court of competent jurisdiction or by binding arbitration.
992 (3) All agreements subject to this section must shall
993 provide the noninstitutional investor or borrower with the
994 option to elect arbitration before the American Arbitration
995 Association or other independent nonindustry arbitration forum.
996 Any other nonindustry arbitration forum may apply to the office
997 to allow such forum to provide arbitration services. The office
998 shall grant the application if the applicant's fees, practices,
999 and procedures do not materially differ from those of the
1000 American Arbitration Association.
1001 (4) At the election of the noninstitutional investor or
1002 borrower, venue shall be in the county in which the
1003 noninstitutional investor or borrower entered into the agreement
1004 or at a business location of the mortgage broker or brokerage
1005 business, mortgage lender, or correspondent lender.
1006 (5) Any fees or charges must be in accordance with shall be
1007 made as provided in the rules of the American Arbitration
1008 Association or other approved nonindustry arbitration forum and
1009 may shall not be set in the agreement.
1010 (6) Any election made under this section is shall be
1011 irrevocable.
1012 (7) This section may shall not be construed to require an
1013 agreement that which is subject to this section to contain an
1014 arbitration clause.
1015 Section 14. Sections 494.0029 and 494.00295, Florida
1016 Statutes, are repealed.
1017 Section 15. The Division of Statutory Revision is requested
1018 to rename part II of chapter 494, Florida Statutes, consisting
1019 of ss. 494.003-491.0043, Florida Statutes, as “Mortgage Brokers
1020 and Loan Originators.”
1021 Section 16. Effective July 1, 2009, section 494.003,
1022 Florida Statutes, is amended to read:
1023 494.003 Exemptions.—
1024 (1) None of The following persons are not is subject to the
1025 requirements of this part ss. 494.003-494.0043:
1026 (a) Any person operating exclusively as a registered loan
1027 originator in accordance with the S.A.F.E. Mortgage Licensing
1028 Act of 2008 licensed under ss. 494.006-494.0077, except as
1029 provided in s. 494.0073.
1030 (b) A depository institution; subsidiaries that are owned
1031 and controlled by a depository institution and regulated by the
1032 Board of Governors of the Federal Reserve System, the
1033 Comptroller of the Currency, the Director of the Office of
1034 Thrift Supervision, the National Credit Union Administration, or
1035 the Federal Deposit Insurance Corporation; and institutions
1036 regulated by the Farm Credit Administration state or federal
1037 chartered bank, trust company, savings and loan association,
1038 savings bank or credit union, bank holding company regulated
1039 under the laws of any state or the United States, or consumer
1040 finance company licensed pursuant to chapter 516.
1041 (c) A wholly owned bank holding company subsidiary or a
1042 wholly owned savings and loan association holding company
1043 subsidiary formed and regulated under the laws of any state or
1044 the United States that is approved or certified by the
1045 Department of Housing and Urban Development, the Veterans
1046 Administration, the Government National Mortgage Association,
1047 the Federal National Mortgage Association, or the Federal Home
1048 Loan Mortgage Corporation.
1049 (c)(d) The Federal National Mortgage Association;, the
1050 Federal Home Loan Mortgage Corporation; any agency of the
1051 Federal Government; any state, county, or municipal government;
1052 or any quasi-governmental agency that acts in such capacity
1053 under the specific authority of the laws of any state or the
1054 United States.
1055 (d) A licensed attorney who negotiates the terms of a
1056 mortgage loan on behalf of a client as an ancillary matter to
1057 the attorney's representation of the client, unless the attorney
1058 is compensated by a mortgage lender, a mortgage broker, or a
1059 loan originator or by the agent of such lender, broker, or
1060 originator.
1061 (e) Any person licensed to practice law in this state, not
1062 actively and principally engaged in the business of negotiating
1063 loans secured by real property, when such person renders
1064 services in the course of her or his practice as an attorney at
1065 law.
1066 (2) None of the following persons is required to be
1067 licensed under ss. 494.003-494.0043:
1068 (a) An insurance company duly licensed in this state when
1069 dealing with its clients in the normal course of its insurance
1070 business.
1071 (b) A federally licensed small business investment company.
1072 (c) A securities dealer registered under the provisions of
1073 s. 517.12, when dealing with its corporate or individual clients
1074 in the normal course of its securities business.
1075 (d) Any person acting in a fiduciary capacity conferred by
1076 authority of any court.
1077 (e) A wholly owned subsidiary of a state or federal
1078 chartered bank or savings and loan association the sole activity
1079 of which is to distribute the lending programs of such state or
1080 federal chartered bank or savings and loan association to
1081 persons who arrange loans for, or make loans to, borrowers.
1082 (2)(3) It is not necessary to negate any of the exemptions
1083 provided in this section in any complaint, information,
1084 indictment, or other writ or proceeding brought under ss.
1085 494.001-494.0077. The burden of establishing the right to an any
1086 such exemption is upon the party claiming the benefit of the
1087 exemption.
1088 Section 17. Section 494.0031, Florida Statutes, is
1089 repealed.
1090 Section 18. Section 494.00312, Florida Statutes, is created
1091 to read:
1092 494.00312 Mortgage broker license.—
1093 (1) Each person who acts as a mortgage broker must be
1094 licensed in accordance with this section.
1095 (2) To apply for a mortgage broker license the applicant
1096 must:
1097 (a) Submit a completed license application form as
1098 prescribed by commission rule.
1099 (b) Designate a qualified principal loan originator who
1100 meets the requirement of s. 494.0035 on the application form.
1101 (c) Submit a nonrefundable application fee of $625, and the
1102 $100 nonrefundable fee required by s. 494.0017. Application fees
1103 may not be prorated for partial years of licensure.
1104 (d) Submit a complete set of fingerprints for each of the
1105 applicant’s control persons to:
1106 1. The registry for a federal criminal history check. If
1107 the registry is not processing fingerprints at the time the
1108 application is submitted, the Department of Law Enforcement
1109 shall forward the fingerprints submitted pursuant to
1110 subparagraph 2. to the Federal Bureau of Investigation for
1111 processing.
1112 2. The office for a state criminal history check. The
1113 office may contract with a third-party vendor that provides live
1114 scan fingerprinting in lieu of a paper fingerprint card. All
1115 fingerprints shall be submitted to the Department of Law
1116 Enforcement and entered into the statewide automated fingerprint
1117 identification system established in s. 943.05(2)(b) and
1118 available for use in accordance with s. 943.05(2)(g). The cost
1119 of fingerprinting shall be borne by the applicant.
1120 (e) Authorize the registry to obtain an independent credit
1121 report on each of the applicant’s control persons from a
1122 consumer reporting agency, and transmit or provide access to the
1123 report to the office. The cost of the credit report shall be
1124 borne by the applicant.
1125 (f) Submit additional information or documentation
1126 requested by the office and required by rule concerning the
1127 applicant or a control person of the applicant. Additional
1128 information may include documentation of pending and prior
1129 disciplinary and criminal history events, including arrest
1130 reports and certified copies of charging documents, plea
1131 agreements, judgments and sentencing documents, documents
1132 relating to pretrial intervention, orders terminating probation
1133 or supervised release, final administrative agency orders, or
1134 other comparable documents that may provide the office with the
1135 appropriate information to determine eligibility for licensure.
1136 (g) Submit any other information required by the registry
1137 for the processing of the application.
1138 (3) An application is considered received for the purposes
1139 of s. 120.60 upon the office's receipt of all documentation from
1140 the registry including the completed application form, criminal
1141 history information, and credit history information, as well as
1142 the nonrefundable license application fees and all applicable
1143 fingerprinting processing fees.
1144 (4) The office shall issue a mortgage broker license to
1145 each person who is not otherwise ineligible and who meets the
1146 requirements of this section. However, it is a ground for denial
1147 of licensure if the applicant or one of the applicant’s control
1148 persons:
1149 (a) Has committed any violation specified in ss. 494.001
1150 494.0077, or is the subject of a pending felony criminal
1151 prosecution or a prosecution or an administrative enforcement
1152 action, in any jurisdiction, that involves fraud, dishonesty,
1153 breach of trust, money laundering, or any other act of moral
1154 turpitude.
1155 (b) Demonstrates a lack of financial responsibility,
1156 character, and general fitness which would fail to command the
1157 confidence of the community and to warrant a determination that
1158 the mortgage broker will operate honestly, fairly, and
1159 efficiently. For purposes of this paragraph, a person has shown
1160 that he or she is not financially responsible if he or she has
1161 shown a disregard in the management of his or her own financial
1162 condition, which may include, but is not limited to:
1163 1. Current outstanding judgments, except judgments
1164 resulting solely from medical expenses;
1165 2. Current outstanding tax liens or other government liens
1166 and filings;
1167 3. Foreclosures within the past 3 years; or
1168 4. A pattern of seriously delinquent accounts within the
1169 past 3 years.
1170 (5) The office shall deny a license if the applicant has
1171 had a mortgage broker license, or its equivalent, revoked in any
1172 jurisdiction, or any of the applicant’s control persons has had
1173 a loan originator license, or its equivalent, revoked in any
1174 jurisdiction.
1175 (6) The commission shall, by rule, establish time periods
1176 during which an applicant is barred from licensure due to prior
1177 criminal convictions of, or guilty or nolo contendre pleas by,
1178 any of the applicant’s control persons, regardless of
1179 adjudication.
1180 (a) The rules must provide:
1181 1. Permanent bars for felonies involving fraud, dishonesty,
1182 breach of trust, or money laundering;
1183 2. A 15-year disqualifying period for felonies involving
1184 moral turpitude;
1185 3. A 7-year period for all other felonies; and
1186 4. A 5-year period for misdemeanors involving fraud,
1187 dishonesty, or any other act of moral turpitude.
1188 (b) The rule may also provide for mitigating factors, an
1189 additional waiting period due to dates of imprisonment or
1190 community supervision, an additional waiting period due to the
1191 commitment of multiple crimes, and other factors reasonably
1192 related to the applicant’s criminal history. An applicant is not
1193 eligible for licensure until the expiration of the disqualifying
1194 period set by rule. Section 112.011 is not applicable to
1195 eligibility for licensure under this part.
1196 (7) A mortgage broker license may be withdrawn pursuant to
1197 s. 120.60 if it was issued through mistake or inadvertence of
1198 the office. A license must be reinstated if the applicant can
1199 demonstrate that the requirements for obtaining the license
1200 under this chapter have been satisfied.
1201 (8) All mortgage broker licenses must be renewed annually
1202 by December 31 pursuant to s. 494.00321. If a person holding an
1203 active mortgage broker license has not applied to renew the
1204 license annually on or before December 31, the mortgage broker
1205 license expires on December 31. If a person holding an active
1206 mortgage broker license has applied to renew the license on or
1207 before December 31, the mortgage broker license remains active
1208 until the renewal application is approved or denied. A mortgage
1209 broker may not be precluded from reapplying for licensure upon
1210 expiration of a previous license.
1211 Section 19. Section 494.0032, Florida Statutes, is
1212 repealed.
1213 Section 20. Section 494.00321, Florida Statutes, is created
1214 to read:
1215 494.00321 Mortgage broker license renewal.—
1216 (1) To renew a mortgage broker license, a mortgage broker
1217 must:
1218 (a) Submit a completed license renewal form as prescribed
1219 by commission rule.
1220 (b) Submit a nonrefundable renewal fee of $625, and the
1221 $100 nonrefundable fee required by s. 494.0017.
1222 (c) Submit a complete set of fingerprints in accordance
1223 with s. 494.00312(2)(c) for any new control persons who have not
1224 been screened.
1225 (d) Authorize the registry to obtain an independent credit
1226 report on each of the applicant’s control persons from a
1227 consumer reporting agency, and transmit or provide access to the
1228 report to the office. The cost of the credit report shall be
1229 borne by the applicant.
1230 (e) Submit any additional information or documentation
1231 requested by the office and required by rule concerning the
1232 applicant or a control person of the applicant. Additional
1233 information may include documentation of pending and prior
1234 disciplinary and criminal history events, including arrest
1235 reports and certified copies of charging documents, plea
1236 agreements, judgments and sentencing documents, documents
1237 relating to pretrial intervention, orders terminating probation
1238 or supervised release, final administrative agency orders, or
1239 other comparable documents that may provide the office with the
1240 appropriate information to determine eligibility for licensure.
1241 (2) The office may not renew a mortgage broker license
1242 unless the licensee continues to meet the minimum requirements
1243 for initial licensure pursuant to s. 494.00312 and adopted rule.
1244 Section 21. Section 494.00323, Florida Statutes, is created
1245 to read:
1246 494.00323 Loan originator license.—
1247 (1) An individual who acts as a loan originator must be
1248 licensed under this section.
1249 (2) To apply for loan originator license, an applicant
1250 must:
1251 (a) Be at least 18 years of age and have a high school
1252 diploma or its equivalent.
1253 (b) Complete a 20-hour prelicensing class approved by the
1254 registry.
1255 (c) Pass a written test developed by the registry and
1256 administered by a provider approved by the registry.
1257 (d) Submit a completed license application form as
1258 prescribed by commission rule.
1259 (e) Submit a nonrefundable renewal fee of $285, and the $20
1260 nonrefundable fee required by s. 494.0017. Application fees may
1261 not be prorated for partial years of licensure.
1262 (f) Submit a complete set of fingerprints to:
1263 1. The registry for a federal criminal history check. If
1264 the registry is not processing fingerprints at the time the
1265 application is submitted, the Department of Law Enforcement
1266 shall forward the fingerprints submitted pursuant to
1267 subparagraph 2. to the Federal Bureau of Investigation for
1268 processing.
1269 2. The office for a state criminal history check. The
1270 office may contract with a third-party vendor that provides live
1271 scan fingerprinting in lieu of a paper fingerprint card. All
1272 fingerprints shall be submitted to the Department of Law
1273 Enforcement and entered into the statewide automated fingerprint
1274 identification system established in s. 943.05(2)(b) and
1275 available for use in accordance with s. 943.05(2)(g). The cost
1276 of fingerprinting shall be borne by the applicant.
1277 (g) Authorize the registry to obtain an independent credit
1278 report on the applicant from a consusmer reporting agency, and
1279 transmit or provide access to the report to the office. The cost
1280 of the credit report shall be borne by the applicant.
1281 (h) Submit additional information or documentation
1282 requested by the office and required by rule concerning the
1283 applicant. Additional information may include documentation of
1284 pending and prior disciplinary and criminal history events,
1285 including arrest reports and certified copies of charging
1286 documents, plea agreements, judgments and sentencing documents,
1287 documents relating to pretrial intervention, orders terminating
1288 probation or supervised release, final administrative agency
1289 orders, or other comparable documents that may provide the
1290 office with the appropriate information to determine eligibility
1291 for licensure.
1292 (i) Submit any other information required by the registry
1293 for the processing of the application.
1294 (3) An application is considered received for the purposes
1295 of s. 120.60 upon the office's receipt of all documentation from
1296 the registry including the completed application form,
1297 documentation of completion of the pre-licensure class, test
1298 results, criminal history information, and credit history
1299 information, as well as the nonrefundable license application
1300 fees and all applicable fingerprinting processing fees.
1301 (4) The office shall issue a loan originator license to
1302 each person who is not otherwise ineligible and who meets the
1303 requirements of this section. However, it is a ground for denial
1304 of licensure if the applicant:
1305 (a) Has committed any violation specified in ss. 494.001
1306 494.0077, or is the subject of a pending felony criminal
1307 prosecution or a prosecution or an administrative enforcement
1308 action, in any jurisdiction, which involves fraud, dishonesty,
1309 breach of trust, money laundering, or any other act of moral
1310 turpitude.
1311 (b) Demonstrates a lack of financial responsibility,
1312 character, and general fitness which would fail to command the
1313 confidence of the community and to warrant a determination that
1314 the loan originator will operate honestly, fairly, and
1315 efficiently. For purposes of this paragraph, a person has shown
1316 that he or she is not financially responsible if he or she has
1317 shown a disregard in the management of his or her own financial
1318 condition which may include, but is not limited to:
1319 1. Current outstanding judgments, except judgments
1320 resulting solely from medical expenses;
1321 2. Current outstanding tax liens or other government liens
1322 and filings;
1323 3. Foreclosures within the past 3 years; or
1324 4. A pattern of seriously delinquent accounts within the
1325 past 3 years.
1326 (5) The office may not issue a license to an applicant who
1327 has had a loan originator license or its equivalent revoked in
1328 any jurisdiction.
1329 (6) The commission shall, by rule, establish time periods
1330 during which an applicant is barred from licensure due to prior
1331 criminal convictions of, or guilty or nolo contendre pleas by,
1332 any of the applicant’s control persons, regardless of
1333 adjudication.
1334 (a) The rules must provide:
1335 1. Permanent bars for felonies involving fraud, dishonesty,
1336 breach of trust, or money laundering;
1337 2. A 15-year disqualifying period for felonies involving
1338 moral turpitude;
1339 3. A 7-year period for all other felonies; and
1340 4. A 5-year period for misdemeanors involving fraud,
1341 dishonesty, or any other act of moral turpitude.
1342 (b) The rule may also provide for mitigating factors, an
1343 additional waiting period due to dates of imprisonment or
1344 community supervision, an additional waiting period due to the
1345 commitment of multiple crimes, and other factors reasonably
1346 related to the applicant’s criminal history. The rule may not
1347 provide standards that are less rigorous than those set forth in
1348 the S.A.F.E. Mortgage Licensing Act of 2008. An applicant is not
1349 eligible for licensure until the expiration of the disqualifying
1350 period set by rule. Section 112.011 is not applicable to
1351 eligibility for licensure under this part.
1352 (7) A loan originator license may be withdrawn pursuant to
1353 s. 120.60 if it was issued through mistake or inadvertence of
1354 the office. A license must be reinstated if the applicant can
1355 demonstrate that the requirements for obtaining the license
1356 under this chapter have been satisfied.
1357 (8) All loan originator licenses must be renewed annually
1358 by December 31 pursuant to s. 494.00324. If a person holding a
1359 loan originator license has not applied to renew the license on
1360 or before December 31, the loan originator license expires on
1361 December 31. If a person holding an active loan originator
1362 license has applied to renew the license on or before December
1363 31, the loan originator license remains active until the renewal
1364 application is approved or denied. A loan originator may not be
1365 precluded from reapplying for licensure upon expiration of a
1366 previous license.
1367 Section 22. Section 494.00324, Florida Statutes, is created
1368 to read:
1369 494.00324 Loan originator license renewal.—
1370 (1) To renew a loan originator license, a loan originator
1371 must:
1372 (a) Submit a completed license renewal form as prescribed
1373 by commission rule.
1374 (b) Submit a nonrefundable renewal fee of $285 and the $20
1375 nonrefundable fee required by s. 494.0017.
1376 (c) Submit a complete set of fingerprints in accordance
1377 with s. 494.00323(2)(e).
1378 (d) Provide documentation of completion of at least 8 hours
1379 of continuing education in courses reviewed and approved by the
1380 registry.
1381 (e) Authorize the registry to obtain an independent credit
1382 report on the applicant from a consumer reporting agency, and
1383 transmit or provide access to the report to the office. The cost
1384 of the credit report shall be borne by the applicant.
1385 (f) Submit any additional information or documentation
1386 requested by the office and required by rule concerning the
1387 licensee. Additional information may include documentation of
1388 pending and prior disciplinary and criminal history events,
1389 including arrest reports and certified copies of charging
1390 documents, plea agreements, judgments and sentencing documents,
1391 documents relating to pretrial intervention, orders terminating
1392 probation or supervised release, final administrative agency
1393 orders, or other comparable documents that may provide the
1394 office with the appropriate information to determine eligibility
1395 for licensure.
1396 (2) The office may not renew a loan originator license
1397 unless the loan originator continues to meet the minimum
1398 standards for initial license issuance pursuant to s. 494.00323
1399 and adopted rule.
1400 Section 23. Section 494.0033, Florida Statutes, is
1401 repealed.
1402 Section 24. Section 494.00331, Florida Statutes, is amended
1403 to read:
1404 494.00331 Prohibition against multiple employers Mortgage
1405 broker association.—A loan originator may not be employed by or
1406 contract with more than one mortgage broker or mortgage lender,
1407 or either simultaneously. No person required to be licensed as a
1408 mortgage broker under this chapter shall be simultaneously an
1409 associate of more than one licensed mortgage brokerage business,
1410 licensed mortgage lender, or licensed correspondent mortgage
1411 lender.
1412 Section 25. Section 494.0034, Florida Statutes, is
1413 repealed.
1414 Section 26. Section 494.0035, Florida Statutes, is amended
1415 to read:
1416 494.0035 Principal loan originator broker and branch
1417 manager for mortgage broker requirements.—
1418 (1) Each mortgage broker brokerage business must be
1419 operated by a principal loan originator who shall have a
1420 principal broker who shall operate the business under such
1421 broker's full charge, control, and supervision of the mortgage
1422 broker business. The principal loan originator must have been
1423 licensed as a loan originator broker must have been a licensed
1424 mortgage broker pursuant to s. 494.0033 for at least 1 year
1425 before prior to being designated as the a principal loan
1426 originator broker, or must shall demonstrate to the satisfaction
1427 of the office that he or she such principal broker has been
1428 actively engaged in a mortgage broker-related mortgage-related
1429 business for at least 1 year before prior to being designated as
1430 a principal loan originator broker. Each mortgage broker must
1431 keep the office informed of the person designated as the
1432 principal loan originator as prescribed by commission rule
1433 brokerage business shall maintain a form as prescribed by the
1434 commission indicating the business's designation of principal
1435 broker and the individual's acceptance of such responsibility.
1436 If the designation is inaccurate, the business shall be deemed
1437 to be operated under form is unavailable, inaccurate, or
1438 incomplete, it is deemed that the business was operated in the
1439 full charge, control, and supervision of by each officer,
1440 director, or ultimate equitable owner of a 10-percent or greater
1441 interest in the mortgage broker brokerage business, or any other
1442 person in a similar capacity. A loan originator may not be a
1443 principal loan originator for more than one mortgage broker at
1444 any given time.
1445 (2) Each branch office of a mortgage broker brokerage
1446 business must be operated by a have a designated branch manager
1447 broker who shall have operate the business under such broker's
1448 full charge, control, and supervision of the branch office. The
1449 designated branch manager broker must be a licensed loan
1450 originator mortgage broker pursuant to s. 494.00323 s. 494.0033.
1451 Each branch office must keep the office informed of the person
1452 designated as the branch manager as prescribed by commission
1453 rule, which includes documentation of shall maintain a form as
1454 prescribed by the commission logging the branch's designation of
1455 a branch broker and the individual's acceptance of such
1456 responsibility. If the designation is inaccurate, the branch
1457 office shall be deemed to be operated under form is unavailable,
1458 inaccurate, or incomplete, it is deemed that the branch was
1459 operated in the full charge, control, and supervision of by each
1460 officer, director, or ultimate equitable owner of a 10-percent
1461 or greater interest in the mortgage broker brokerage business,
1462 or any other person in a similar capacity.
1463 Section 27. Section 494.0036, Florida Statutes, is amended
1464 to read:
1465 494.0036 Mortgage broker branch office license brokerage
1466 business branch offices.—
1467 (1) Each branch office of a mortgage broker must be
1468 licensed under this section. A mortgage brokerage business
1469 branch office license is required for each branch office
1470 maintained by a mortgage brokerage business.
1471 (2) The office shall issue a mortgage broker brokerage
1472 business branch office license to a mortgage broker brokerage
1473 business licensee after the office determines that the licensee
1474 has submitted a completed application for a branch office in a
1475 form as prescribed by commission rule and payment of an initial
1476 nonrefundable branch office license fee of $350, and the $100
1477 nonrefundable fee required by s. 494.0017 $225. Application fees
1478 may not be prorated for partial years of licensure. The branch
1479 office license shall be issued in the name of the mortgage
1480 broker brokerage business that maintains the branch office. An
1481 application is considered received for purposes of s. 120.60
1482 upon receipt of a completed application form as prescribed by
1483 commission rule, and the required fees a nonrefundable
1484 application fee of $225, and any other fee prescribed by law.
1485 (3) A branch office license must be renewed at the time of
1486 renewing the mortgage broker license under s. 494.00321.
1487 Section 28. Section 494.0038, Florida Statutes, is amended
1488 to read:
1489 494.0038 Loan origination and mortgage broker fees and
1490 Mortgage broker disclosures.—
1491 (1)(a)1. A loan origination fee may not be paid person may
1492 not receive a mortgage brokerage fee except pursuant to a
1493 written mortgage broker brokerage agreement between the mortgage
1494 broker brokerage business and the borrower which is signed and
1495 dated by each loan originator responsible for providing loan
1496 origination services, the principal loan originator or branch
1497 manager, the business and the borrower. If the principal loan
1498 originator or branch manager is the only licensed loan
1499 originator responsible for providing loan origination services,
1500 only his or signature is required.
1501 (a)2. The written mortgage broker brokerage agreement must
1502 describe the services to be provided by the mortgage broker
1503 brokerage business and specify the amount and terms of the loan
1504 origination mortgage brokerage fee that the mortgage broker
1505 brokerage business is to receive.
1506 1. Except for application and third-party fees, all fees
1507 received by a mortgage broker from a borrower must be identified
1508 as a loan origination fee.
1509 2. All fees on the mortgage broker agreement must be
1510 disclosed in dollar amounts.
1511 3. All loan origination fees must be paid to a mortgage
1512 broker.
1513 (b) The written mortgage brokerage agreement must be
1514 executed within 3 business days after a mortgage loan
1515 application is accepted if the borrower is present when the
1516 mortgage loan application is accepted. If the borrower is not
1517 present when such an application is accepted, the licensee shall
1518 forward the written mortgage brokerage agreement to the borrower
1519 within 3 business days after the licensee's acceptance of the
1520 application and the licensee bears the burden of proving that
1521 the borrower received and approved the written mortgage
1522 brokerage agreement.
1523 (2)(b)1. If the mortgage broker brokerage business is to
1524 receive any payment of any kind from the mortgage lender, the
1525 maximum total dollar amount of the payment must be disclosed to
1526 the borrower in the written mortgage brokerage agreement as
1527 described in paragraph (1)(a). The commission may prescribe by
1528 rule an acceptable form for disclosure of brokerage fees
1529 received from the lender. The mortgage brokerage agreement must
1530 state the nature of the relationship with the lender, describe
1531 how compensation is paid by the lender, and describe how the
1532 mortgage interest rate affects the compensation paid to the
1533 mortgage broker brokerage business.
1534 (a)2. The exact amount of any payment of any kind by the
1535 lender to the mortgage broker brokerage business must be
1536 disclosed in writing to the borrower within 3 business days
1537 after the mortgage broker brokerage business is made aware of
1538 the exact amount of the payment from the lender but not less
1539 than 3 business days before the execution of the closing or
1540 settlement statement. The licensee bears the burden of proving
1541 such notification was provided to the borrower. Notification is
1542 waived if the exact amount of the payment is accurately
1543 disclosed in the written mortgage broker agreement.
1544 (b)(c) The commission may prescribe by rule the form of
1545 disclosure of brokerage fees.
1546 (3)(2) At the time a written mortgage brokerage agreement
1547 is signed executed by the borrower or forwarded to the borrower
1548 for signature execution, or at the time the mortgage broker
1549 brokerage business accepts an application fee, credit report
1550 fee, property appraisal fee, or any other third-party fee, but
1551 at least not less than 3 business days before execution of the
1552 closing or settlement statement, the mortgage broker brokerage
1553 business shall disclose in writing to any applicant for a
1554 mortgage loan the following information:
1555 (a) That the such mortgage broker brokerage business may
1556 not make mortgage loans or commitments. The mortgage broker
1557 brokerage business may make a commitment and may furnish a lock
1558 in of the rate and program on behalf of the lender if when the
1559 mortgage broker brokerage business has obtained a written
1560 commitment or lock-in for the loan from the lender on behalf of
1561 the borrower for the loan. The commitment must be in the same
1562 form and substance as issued by the lender.
1563 (b) That the such mortgage broker brokerage business cannot
1564 guarantee acceptance into any particular loan program or promise
1565 any specific loan terms or conditions.
1566 (c) A good faith estimate, signed and dated by the
1567 borrower, which discloses the total amount of each of the fees
1568 which the borrower may reasonably expect to pay if the loan is
1569 closed, including, but not limited to, fees earned by the
1570 mortgage broker brokerage business, lender fees, third-party
1571 fees, and official fees, together with the terms and conditions
1572 for obtaining a refund of such fees, if any. Any amount
1573 collected in excess of the actual cost shall be returned within
1574 60 days after rejection, withdrawal, or closing. The good faith
1575 estimate must identify the recipient of all payments charged the
1576 borrower and, except for all fees to be received by the mortgage
1577 broker brokerage business, may be disclosed in generic terms,
1578 such as, but not limited to, paid to lender, appraiser,
1579 officials, title company, or any other third-party service
1580 provider. This requirement does not supplant or is not a
1581 substitute for the written mortgage brokerage agreement
1582 described in subsection (1).
1583 (4)(3) The disclosures required by this subsection must be
1584 furnished in writing at the time an adjustable rate mortgage
1585 loan is offered to the borrower and whenever the terms of the
1586 adjustable rate mortgage loan offered materially change prior to
1587 closing. The mortgage broker shall furnish the disclosures
1588 relating to adjustable rate mortgages in a format prescribed by
1589 ss. 226.18 and 226.19 of Regulation Z of the Board of Governors
1590 of the Federal Reserve System, as amended; its commentary, as
1591 amended; and the federal Truth in Lending Act, 15 U.S.C. ss.
1592 1601 et seq., as amended; together with the Consumer Handbook on
1593 Adjustable Rate Mortgages, as amended; published by the Federal
1594 Reserve Board and the Federal Home Loan Bank Board. The licensee
1595 bears the burden of proving such disclosures were provided to
1596 the borrower.
1597 (5)(4) If the mortgage brokerage agreement includes a
1598 nonrefundable application fee, the following requirements are
1599 applicable:
1600 (a) The amount of the application fee, which must be
1601 clearly denominated as such, must shall be clearly disclosed.
1602 (b) The specific services that will be performed in
1603 consideration for the application fee must shall be disclosed.
1604 (c) The application fee must be reasonably related to the
1605 services to be performed and may not be based upon a percentage
1606 of the principal amount of the loan or the amount financed.
1607 (6)(5) A mortgage broker brokerage business may not accept
1608 any fee in connection with a mortgage loan other than an
1609 application fee, credit report fee, property appraisal fee, or
1610 other third-party fee prior to obtaining a written commitment
1611 from a qualified lender.
1612 (7)(6) Any third-party fee entrusted to a mortgage broker
1613 must brokerage business shall immediately, upon receipt, be
1614 placed into a segregated account with a financial institution
1615 located in the state the accounts of which are insured by the
1616 Federal Government. Such funds shall be held in trust for the
1617 payor and shall be kept in the account until disbursement. Such
1618 funds may be placed in one account if adequate accounting
1619 measures are taken to identify the source of the funds.
1620 (7) All mortgage brokerage fees shall be paid to a mortgage
1621 brokerage business licensee.
1622 (8) A mortgage broker may not pay a commission to any
1623 person not licensed pursuant to this chapter.
1624 (9)(8) This section does not prohibit a mortgage broker
1625 brokerage business from offering products and services, in
1626 addition to those offered in conjunction with the loan
1627 origination process, for a fee or commission.
1628 Section 29. Section 494.00385, Florida Statutes, is created
1629 to read:
1630 494.00385 Loan modification fees.—
1631 (1) A fee for negotiating a mortgage loan modification may
1632 not be paid except pursuant to a written agreement between the
1633 loan originator and the borrower. The written agreement must
1634 specify the amount of the fee that will be charged to the
1635 borrower, specify the terms of the mortgage loan for which
1636 modification will be sought, and disclose the expected impact of
1637 the loan modification on the monthly payment and length of the
1638 loan.
1639 (2) A loan modification may not be executed without the
1640 consent of the borrower after the borrower is made aware of each
1641 modified term.
1642 (3) Fees charged for negotiating a loan modification may
1643 not be received until after the loan modification is completed,
1644 and may be charged only if the loan modification results in a
1645 material benefit to the borrower. The commission may adopt rules
1646 to provide guidance on what constitutes a material benefit to
1647 the borrower.
1648 Section 30. Section 494.0039, Florida Statutes, is amended
1649 to read:
1650 494.0039 Principal place of business requirements.—Each
1651 mortgage broker brokerage business licensee shall maintain and
1652 transact business from a principal place of business.
1653 Section 31. Section 494.004, Florida Statutes, is amended
1654 to read:
1655 494.004 Requirements of licensees.—
1656 (1) Each licensee under this part ss. 494.003-494.0043
1657 shall report to the office:,
1658 (a) In writing, any conviction of, or plea of nolo
1659 contendere to, regardless of adjudication, any felony or any
1660 crime or administrative violation that involves fraud,
1661 dishonesty, breach of trust, money laundering dishonest dealing,
1662 or any other act of moral turpitude, in any jurisdiction, by the
1663 licensee or any control natural person within named in s.
1664 494.0031(2)(d), not later than 30 days after the date of
1665 conviction, entry of a plea of nolo contendere, or final
1666 administrative action.
1667 (b)(2) Each licensee under ss. 494.003-494.0043 shall
1668 report, In a form prescribed by rule of the commission, any
1669 conviction of, or plea of nolo contendere to, regardless of
1670 whether adjudication is withheld, any felony committed by the
1671 licensee or any control natural person within named in s.
1672 494.0031(2)(d), not later than 30 days after the date of
1673 conviction or the date the plea of nolo contendere is entered.
1674 (c)(3) Each licensee under ss. 494.003-494.0043 shall
1675 report Any action in bankruptcy, voluntary or involuntary,
1676 within 30 to the office not later than 7 business days after the
1677 action is instituted.
1678 (d)(4) Each licensee under ss. 494.003-494.0043 shall
1679 report On a form prescribed by rule of the commission, any
1680 change to the information contained in any initial application
1681 form or any amendment to the application within not later than
1682 30 days after the change is effective.
1683 (5) A license issued under ss. 494.003-494.0043 is not
1684 transferable or assignable.
1685 (e)(6) Each licensee under ss. 494.003-494.0043 shall
1686 report Any change in the principal loan originator broker, any
1687 addition or subtraction of a control person partners, officers,
1688 members, joint venturers, directors, control persons of any
1689 licensee, or any individual who is the ultimate equitable owner
1690 of a 10-percent or greater interest in the licensee, or any
1691 change in the form of business organization, by written
1692 amendment in the form and at the time the commission specifies
1693 by rule.
1694 (a) In any case in which a person or a group of persons,
1695 directly or indirectly or acting by or through one or more
1696 persons, proposes to purchase or acquire a controlling interest
1697 in a licensee, such person or group shall submit an initial
1698 application for licensure as a mortgage brokerage business
1699 before such purchase or acquisition and at the time and in the
1700 form the commission prescribes by rule.
1701 (b) As used in this subsection, the term “controlling
1702 interest” means possession of the power to direct or cause the
1703 direction of the management or policies of a company whether
1704 through ownership of securities, by contract, or otherwise. Any
1705 person who directly or indirectly has the right to vote 25
1706 percent or more of the voting securities of a company or is
1707 entitled to 25 percent or more of the company's profits is
1708 presumed to possess a controlling interest.
1709 (f)(c) Any addition of a partner, officer, member, joint
1710 venturer, director, control person, or ultimate equitable owner
1711 of the applicant who does not have a controlling interest and
1712 who has not previously filed a Uniform Mortgage Biographical
1713 Statement & Consent Form, MU2, or has not previously complied
1714 with the fingerprinting and credit report requirements
1715 provisions of ss. 494.00312 and 494.00321, s. 494.0031(2)(c) and
1716 (d) is subject to the such provisions of these sections unless
1717 required to file an initial application in accordance with
1718 paragraph (a). If, after the addition of a control person, the
1719 office finds that the licensee does not continue to meet
1720 licensure requirements, the office may bring an administrative
1721 action in accordance with s. 494.0041 to enforce the provisions
1722 of this chapter.
1723 (d) The commission shall adopt rules pursuant to ss.
1724 120.536(1) and 120.54 providing for the waiver of the
1725 application required by this subsection if the person or group
1726 of persons proposing to purchase or acquire a controlling
1727 interest in a licensee has previously complied with the
1728 provisions of s. 494.0031(2)(c) and (d) with respect to the same
1729 legal entity or is currently licensed by the office under this
1730 chapter.
1731 (7) On or before April 30, 2000, each mortgage brokerage
1732 business shall file an initial report stating the name, social
1733 security number, date of birth, mortgage broker license number,
1734 date of hire and, if applicable, date of termination for each
1735 person who was an associate of the mortgage brokerage business
1736 during the immediate preceding quarter. Thereafter, A mortgage
1737 brokerage business shall file a quarterly report only if a
1738 person became an associate or ceased to be an associate of the
1739 mortgage brokerage business during the immediate preceding
1740 quarter. Such report shall be filed within 30 days after the
1741 last day of each calendar quarter and shall contain the name,
1742 social security number, date of birth, mortgage broker license
1743 number, date of hire and, if applicable, the date of termination
1744 of each person who became or ceased to be an associate of the
1745 mortgage brokerage business during the immediate preceding
1746 quarter. The commission shall prescribe, by rule, the procedures
1747 for filing reports required by this subsection.
1748 (2)(8)(a) In every mortgage loan transaction, each licensee
1749 under this part must ss. 494.003-494.0043 shall notify a
1750 borrower of any material changes in the terms of a mortgage loan
1751 previously offered to the borrower within 3 business days after
1752 being made aware of such changes by the mortgage lender but at
1753 least not less than 3 business days before the signing of the
1754 settlement or closing statement. The licensee bears the burden
1755 of proving such notification was provided and accepted by the
1756 borrower.
1757 (b) A borrower may waive the right to receive notice of a
1758 material change that is granted under paragraph (a) if the
1759 borrower determines that the extension of credit is needed to
1760 meet a bona fide personal financial emergency and the right to
1761 receive notice would delay the closing of the mortgage loan. The
1762 imminent sale of the borrower's home at foreclosure during the
1763 3-day period before the signing of the settlement or closing
1764 statement is constitutes an example of a bona fide personal
1765 financial emergency. In order to waive the borrower's right to
1766 receive notice not less than 3 business days before the signing
1767 of the settlement or closing statement of any such material
1768 change, the borrower must provide the licensee with a dated
1769 written statement that describes the personal financial
1770 emergency, waives the right to receive the notice, bears the
1771 borrower's signature, and is not on a printed form prepared by
1772 the licensee for the purpose of such a waiver.
1773 (3) Each mortgage broker shall submit to the registry
1774 reports of condition, which must be in such form and shall
1775 contain such information as the registry may require.
1776 (4) A license issued under this part is not transferable or
1777 assignable.
1778 Section 32. Section 494.0041, Florida Statutes, is amended
1779 to read:
1780 494.0041 Administrative penalties and fines; license
1781 violations.—
1782 (1) Whenever the office finds a person in violation of an
1783 act specified in subsection (2), it may enter an order imposing
1784 one or more of the following penalties against the person:
1785 (a) Revocation of a license or registration.
1786 (b) Suspension of a license or registration subject to
1787 reinstatement upon satisfying all reasonable conditions that the
1788 office specifies.
1789 (c) Placement of the licensee, registrant, or applicant on
1790 probation for a period of time and subject to all reasonable
1791 conditions that the office specifies.
1792 (d) Issuance of a reprimand.
1793 (e) Imposition of a fine in an amount not exceeding $5,000
1794 for each count or separate offense.
1795 (f) Denial of a license or registration.
1796 (1)(2) Each of the following acts constitutes a ground for
1797 which the disciplinary actions specified in subsection (2) (1)
1798 may be taken:
1799 (a) Being convicted of, or entering a plea of guilty or
1800 Pleading nolo contendere to, or having been convicted or found
1801 guilty of, regardless of whether adjudication was withheld, any
1802 felony or any a crime involving fraud, dishonesty, breach of
1803 trust, money laundering dishonest dealing, or any act of moral
1804 turpitude.
1805 (b) Fraud, misrepresentation, deceit, negligence, or
1806 incompetence, in any mortgage financing transaction.
1807 (c) A material misstatement or omission of fact on an
1808 initial or renewal license application.
1809 (d) Disbursement, or an act which has caused or will cause
1810 disbursement, to any person in any amount from the Mortgage
1811 Guaranty Regulatory Trust Fund, the Securities Guaranty Fund, or
1812 the Florida Real Estate Recovery Fund, regardless of any
1813 repayment or restitution to the disbursed fund by the licensee
1814 or any person acting on behalf of the licensee or registrant.
1815 (e) Failure of a loan originator to place immediately upon
1816 receipt, and maintain until authorized to disburse, any money
1817 entrusted to her or him by a person dealing with her or him as a
1818 loan originator mortgage broker in a segregated account of a
1819 federally insured financial institution in this state.
1820 (f) Failure to account or deliver to any person any
1821 property that has come into her or his hands and that is not the
1822 licensee's her or his property or that the licensee she or he is
1823 not in law or equity entitled to retain, under the circumstances
1824 and at the time which has been agreed upon or is required by law
1825 or, in the absence of a fixed time, upon demand of the person
1826 entitled to such accounting and delivery.
1827 (g) Failure to disburse funds in accordance with
1828 agreements.
1829 (h) Any misuse, misapplication, or misappropriation of
1830 personal property entrusted to her or his care to which she or
1831 he had no current property right at the time of entrustment.
1832 (i) Having a license, or the equivalent, to practice any
1833 profession or occupation revoked, suspended, or otherwise acted
1834 against, including the denial of licensure by a licensing
1835 authority of this state or another state, territory, or country
1836 for fraud, dishonest dealing, or any other act of moral
1837 turpitude.
1838 (j) Failure to comply with any order or rule made or issued
1839 under this part ss. 494.001-494.0077.
1840 (k) Acting as a loan originator mortgage broker or mortgage
1841 broker or operating a branch office brokerage business without a
1842 current, active license issued under this part ss. 494.003
1843 494.0043.
1844 (l) Failure to timely pay any fee, charge, or fine under
1845 ss. 494.001-494.0077.
1846 (l)(m) Failure to maintain, preserve, and keep available
1847 for examination all books, accounts, or other documents required
1848 by ss. 494.001-494.0077 and the rules of the commission.
1849 (m)(n) Refusal to permit an investigation or examination of
1850 books and records, or refusal to comply with an office subpoena
1851 or subpoena duces tecum.
1852 (n)(o) Consistently and materially underestimating maximum
1853 closing costs.
1854 (o)(p) Failure to comply with, or violation of, any other
1855 provision of ss. 494.001-494.0077.
1856 (p)(q) Commission of fraud, misrepresentation, concealment,
1857 or dishonest dealing by trick, scheme, or device;, culpable
1858 negligence;, or breach of trust in any business transaction in
1859 any state, nation, or territory; or aiding, assisting, or
1860 conspiring with any other person engaged in any such misconduct
1861 and in furtherance thereof.
1862 (q)(r) Failure to timely pay any fee, charge, or fine
1863 imposed or assessed pursuant to this chapter or rules adopted
1864 under this chapter.
1865 (r)(s) Payment to the office for a license or permit with a
1866 check or electronic transmission of funds that is dishonored by
1867 the applicant's or licensee's financial institution.
1868 (s)(t) Having a final judgment entered against the
1869 applicant or licensee in a civil action upon grounds of fraud,
1870 embezzlement, misrepresentation, or deceit.
1871 (t)(u)1. Having been the subject of any:
1872 1. Decision, finding, injunction, suspension, prohibition,
1873 revocation, denial, judgment, or administrative order by any
1874 court of competent jurisdiction, administrative law judge, state
1875 or federal agency, national securities exchange, national
1876 commodities exchange, national option exchange, national
1877 securities association, national commodities association, or
1878 national option association involving a violation of any federal
1879 or state securities or commodities law or rule or regulation
1880 adopted under such law or involving a violation of any rule or
1881 regulation of any national securities, commodities, or options
1882 exchange or association.
1883 2. Having been the subject of any Injunction or adverse
1884 administrative order by a state or federal agency regulating
1885 banking, insurance, finance or small loan companies, real
1886 estate, mortgage brokers or lenders, money transmitters, or
1887 other related or similar industries.
1888 (u)(v) In any mortgage transaction, violating any provision
1889 of the federal Real Estate Settlement Procedure Act, as amended,
1890 12 U.S.C. ss. 2601 et seq.; the federal Truth in Lending Act, as
1891 amended, 15 U.S.C. ss. 1601 et seq.; or any regulations adopted
1892 under such acts.
1893 (v) Requesting a specific valuation, orally or in writing,
1894 from an appraiser for a particular property, implying to an
1895 appraiser that a specific valuation is needed for a particular
1896 property, or in any manner conditioning the order for an
1897 appraisal on the appraisal meeting a specific valuation. The
1898 numeric value of the specific valuation sought need not be
1899 stated, but rather the mere statement that a specific valuation
1900 is sought, violates this section.
1901 (w) Failure to provide a lender with all appraisals
1902 obtained by the loan originator with respect to a particular
1903 property if more than one appraisal has been obtained.
1904 (x) Conducting any brokering activities in the absence of a
1905 properly designated principal loan originator or brokering
1906 activities at any particular branch office without a properly
1907 designated branch manager.
1908 (y) Having a loan originator, mortgage broker, or mortgage
1909 lender license, or the equivalent thereof, revoked in any
1910 jurisdiction.
1911 (2) If the office finds a person in violation of any act
1912 specified in this section, it may enter an order imposing one or
1913 more of the following penalties:
1914 (a) Revocation of a license or registration.
1915 (b) Suspension of a license or registration, subject to
1916 reinstatement upon satisfying all reasonable conditions imposed
1917 by the office.
1918 (c) Issuance of a reprimand.
1919 (d) Imposition of a fine in an amount up to $10,0000 for
1920 each count or separate offense.
1921 (e) Denial of a license or registration.
1922 (3) A mortgage broker brokerage business is subject to the
1923 disciplinary actions specified in subsection (2) (1) for a
1924 violation of subsection (1) (2) by any officer, member,
1925 director, control person or loan originator employed by or
1926 contracting with the mortgage broker, joint venturer, partner,
1927 ultimate equitable owner of a 10-percent or greater interest in
1928 the mortgage brokerage business, or associate mortgage broker of
1929 the licensee.
1930 (4) A principal loan originator mortgage broker is subject
1931 to the disciplinary actions specified in subsection (2) (1) for
1932 violations of subsection (1) (2) by a loan originator associates
1933 in the course of an association with the mortgage broker
1934 brokerage business. The principal mortgage broker is only
1935 subject to suspension or revocation for associate actions if
1936 there is a pattern of repeated violations by the loan originator
1937 associates or if the principal loan originator mortgage broker
1938 has knowledge of the violations.
1939 (5) A branch manager is subject to the disciplinary actions
1940 specified in subsection (2) for violations of subsection (1) by
1941 a loan originator in the course of an association with the
1942 mortgage broker if there is a pattern of repeated violations by
1943 the loan originator or if the branch manager has knowledge of
1944 the violations.
1945 (6)(5) A natural person who is associated with a mortgage
1946 broker brokerage business is subject to the disciplinary actions
1947 specified in subsection (2) (1) for a violation of subsection
1948 (1) (2) with respect to an action in which such person was
1949 involved.
1950 (7) The office may summarily suspend the license of any
1951 loan originator or mortgage broker in accordance with s.
1952 120.60(6) due to the arrest of the loan originator or the
1953 mortgage broker’s control person for any felony or any crime
1954 involving fraud, dishonesty, breach of trust, money laundering,
1955 or any other act of moral turpitude, or if the office has reason
1956 to believe that a licensee poses an immediate, serious danger to
1957 the public’s health, safety, or welfare. Any proceeding for the
1958 summary suspension of a license must be conducted by the
1959 commissioner of the office, or designee, who shall issue the
1960 final summary order. A reasonable belief by the office that a
1961 loan originator or mortgage broker's control person has
1962 committed any act of fraud is deemed sufficient to constitute an
1963 immediate danger to the public’s health, safety, or welfare.
1964 (8) The office may deny any request to terminate or
1965 withdraw any application or license if the office believes that
1966 an act which would be a ground for denial, suspension,
1967 restriction, or revocation under this chapter has been
1968 committed.
1969 Section 33. Section 494.0042, Florida Statutes, is amended
1970 to read:
1971 494.0042 Loan originator Brokerage fees.—
1972 (1) A loan originator mortgage brokerage fee earned by a
1973 licensee, pursuant to this part ss. 494.003-494.0043, is not
1974 considered interest or a finance charge under chapter 687.
1975 (2) A person may not charge or exact, directly or
1976 indirectly, from the borrower mortgagor a fee or commission in
1977 excess of the maximum fee or commission specified in this
1978 section. The maximum fees or commissions that may be charged for
1979 mortgage loans are as follows:
1980 (a) On a mortgage loan of $1,000 or less: $250.
1981 (b) On a mortgage loan exceeding $1,000 and not exceeding
1982 $2,000: $250 for the first $1,000 of the mortgage loan, plus $10
1983 for each additional $100 of the mortgage loan.
1984 (c) On a mortgage loan exceeding $2,000 and not exceeding
1985 $5,000: $350 for the first $2,000 of the mortgage loan, plus $10
1986 for each additional $100 of the mortgage loan.
1987 (d) On a mortgage loan exceeding $5,000: $250 plus 10
1988 percent of the entire mortgage loan.
1989 For the purpose of determining the maximum fee, the amount
1990 of the mortgage loan is based on the amount of mortgage loan
1991 actually funded exclusive of the authorized maximum fees or
1992 commissions.
1993 (3) At the time of accepting a mortgage loan application, a
1994 mortgage broker brokerage business may receive from the borrower
1995 a nonrefundable application fee. If the mortgage loan is funded,
1996 the nonrefundable application fee shall be credited against the
1997 amount owed as a result of the loan being funded. A person may
1998 not receive any form of compensation for acting as a loan
1999 originator mortgage broker other than a nonrefundable
2000 application fee, a fee based on the mortgage amount being
2001 funded, or a fee which complies with s. 494.00421.
2002 Section 34. Section 494.00421, Florida Statutes, is amended
2003 to read:
2004 494.00421 Fees earned upon obtaining a bona fide
2005 commitment.—Notwithstanding the provisions of ss. 494.001
2006 494.0077, any mortgage broker brokerage business which contracts
2007 to receive from a borrower a mortgage broker brokerage fee from
2008 a borrower upon obtaining a bona fide commitment shall
2009 accurately disclose in the mortgage broker brokerage agreement:
2010 (1) The gross loan amount.
2011 (2) In the case of a fixed-rate mortgage, the note rate.
2012 (3) In the case of an adjustable rate mortgage:
2013 (a) The initial note rate.
2014 (b) The length of time for which the initial note rate is
2015 effective.
2016 (c) The frequency of changes.
2017 (d) The limitation upon such changes including adjustment
2018 to adjustment cap and life cap.
2019 (e) Whether the loan has any potential for negative
2020 amortization.
2021 (f) Identification of the margin-interest rate
2022 differential.
2023 (g) Identification of a nationally recognized index which
2024 index must be free from control of the mortgage broker, mortgage
2025 brokerage business, mortgage lender, or correspondent mortgage
2026 lender.
2027 (4) The estimated net proceeds to be paid directly to the
2028 borrower. “Estimated net proceeds” means the cash to be received
2029 by the borrower after payment of any fees, charges, debts,
2030 liens, or encumbrances to perfect the lien of the new mortgage
2031 and establish the agreed-upon priority of the new mortgage.
2032 (5) The lien priority of the new proposed mortgage.
2033 (6) The number of calendar days, which are mutually agreed
2034 upon, within which the mortgage broker brokerage business shall
2035 obtain a bona fide mortgage commitment.
2036 (7)(a) The following statement, in at least no less than
2037 12-point boldface type immediately above the signature lines for
2038 the borrowers:
2039 “You are entering into a contract with a mortgage broker
2040 brokerage business to obtain a bona fide mortgage loan
2041 commitment under the same terms and conditions as stated
2042 hereinabove or in a separate executed good faith estimate form.
2043 If the mortgage broker brokerage business obtains a bona fide
2044 commitment under the same terms and conditions, you will be
2045 obligated to pay the mortgage broker brokerage business fees,
2046 including, but not limited to, a mortgage broker brokerage fee,
2047 even if you choose not to complete the loan transaction. If the
2048 provisions of s. 494.00421, Florida Statutes, are not met, the
2049 mortgage broker brokerage fee can only be earned upon the
2050 funding of the mortgage loan. The borrower may contact the
2051 Department of Financial Services, Tallahassee, Florida,
2052 regarding any complaints that the borrower may have against the
2053 mortgage broker or the mortgage brokerage business. The
2054 telephone number of the department is: ...[insert telephone
2055 number]....”
2056 (b) Paragraph (a) does not apply to nonresidential mortgage
2057 loan commitments in excess of $1 million.
2058 (8) Any other disclosure required pursuant to s. 494.0038.
2059 Section 35. Section 494.0043, Florida Statutes, is amended
2060 to read:
2061 494.0043 Requirements for brokering loans to
2062 noninstitutional investors.—
2063 (1) A loan originator mortgage broker, when arranging a
2064 mortgage loan for a noninstitutional investor, shall:
2065 (a) Before any payment of money by the a noninstitutional
2066 investor, provide an opinion of value from an appraiser stating
2067 the value of the security property unless the opinion is waived
2068 in writing. The opinion must state the value of the property as
2069 it exists on the date of the opinion. If any relationship exists
2070 between the mortgage broker and the appraiser, that relationship
2071 shall be disclosed to the investor.
2072 (b) Provide to the noninstitutional investor a mortgagee's
2073 title insurance policy or an opinion of title by an attorney
2074 licensed to practice law in the state, or a copy thereof.
2075 1. If a title insurance policy is issued, it must insure
2076 the noninstitutional investor against the unmarketability of the
2077 mortgagee's interest in such title. It must shall also specify
2078 any superior liens that exist against the property. If an
2079 opinion of title is issued by an attorney licensed to practice
2080 law in the state, the opinion must include a statement as to the
2081 marketability of the title to the property described in the
2082 mortgage and specify the priority of the mortgage being closed.
2083 2. If the title insurance policy or opinion of title is not
2084 available at the time of purchase, the licensee shall provide a
2085 binder of the title insurance or conditional opinion of title.
2086 This binder or opinion must include any conditions or
2087 requirements that need needed to be corrected before prior to
2088 the issuance of the final title policy or opinion of title. The
2089 binder or opinion must also include information concerning the
2090 requirements specified in subparagraph 1. Any conditions must be
2091 eliminated or waived in writing by the investor before prior to
2092 delivery to the noninstitutional investor. The policy or
2093 opinion, or a copy thereof, shall be delivered to the investor
2094 within a reasonable period of time, not exceeding 6 months,
2095 after closing.
2096 3. The requirements of this paragraph may be waived in
2097 writing. If the requirements are waived by the noninstitutional
2098 investor, the waiver must include the following statement
2099 wording: “The noninstitutional investor acknowledges that the
2100 mortgage broker or mortgage lender brokering this mortgage loan
2101 is not providing a title insurance policy or opinion of title
2102 issued by an attorney who is licensed to practice law in the
2103 State of Florida. Any requirement for title insurance or for a
2104 legal opinion of title is the sole responsibility of the
2105 noninstitutional mortgage investor.”
2106 (c) Provide, if the loan is other than a first mortgage, a
2107 statement showing the balance owed by the mortgagor on any
2108 existing mortgages prior to this investment and the status of
2109 such existing mortgages.
2110 (d) Provide a disclosure if the licensee is directly or
2111 indirectly acting as a borrower or principal in the transaction.
2112 (2) Each original or certified copy of the mortgage, or
2113 other instrument securing a note or assignment thereof, must
2114 shall be recorded before being delivered to the noninstitutional
2115 investor. A loan originator mortgage broker shall cause the
2116 properly endorsed original note to be delivered to the
2117 noninstitutional investor.
2118 (3) Each mortgage and assignment must shall be recorded as
2119 soon as practical, but no later than 30 business days after the
2120 date of closing.
2121 (4) Any money from a noninstitutional investor for
2122 disbursement at a mortgage loan closing must shall be deposited
2123 with and disbursed by an attorney duly licensed in this state or
2124 by a title company duly licensed in this state. A person acting
2125 as a loan originator mortgage broker may not have control of any
2126 money from a noninstitutional investor. This subsection does not
2127 prohibit a licensee under this part ss. 494.003-494.0043 from
2128 receiving a loan originator mortgage brokerage fee upon the
2129 closing of the mortgage loan funded by the noninstitutional
2130 investor.
2131 Section 36. Effective July 1, 2009, section 494.006,
2132 Florida Statutes, is amended to read:
2133 494.006 Exemptions.—
2134 (1) None of the following persons are subject to the
2135 requirements of this part ss. 494.006-494.0077 in order to act
2136 as a mortgage lender or correspondent mortgage lender:
2137 (a) A depository institution; subsidiaries that are owned
2138 and controlled by a depository institution and regulated by the
2139 Board of Governors of the Federal Reserve System, the
2140 Comptroller of the Currency, the Director of the Office of
2141 Thrift Supervision, the National Credit Union Administration, or
2142 the Federal Deposit Insurance Corporation; and institutions
2143 regulated by the Farm Credit Administration state or federal
2144 chartered bank, trust company, savings and loan association,
2145 savings bank or credit union, bank holding company regulated
2146 under the laws of any state or the United States, or insurance
2147 company if the insurance company is duly licensed in this state.
2148 (b) Any person acting in a fiduciary capacity conferred by
2149 the authority of any court.
2150 (c) A wholly owned bank holding company subsidiary or a
2151 wholly owned savings and loan association holding company
2152 subsidiary that is formed and regulated under the laws of any
2153 state or the United States and that is approved or certified by
2154 the Department of Housing and Urban Development, the Veterans
2155 Administration, the Government National Mortgage Association,
2156 the Federal National Mortgage Association, or the Federal Home
2157 Loan Mortgage Corporation.
2158 (c)(d) Any person who, as a seller of his or her own real
2159 property, receives one or more mortgages in a purchase money
2160 transaction.
2161 (e) Any person who receives a mortgage as security for an
2162 obligation arising out of materials furnished or as services
2163 rendered by the person in the improvement of the real property.
2164 (d)(f) Any person who makes only nonresidential mortgage
2165 loans and sells loans only to institutional investors.
2166 (e)(g) The Federal National Mortgage Association; the
2167 Federal Home Loan Mortgage Corporation; an agency of the Federal
2168 Government; any state, county, or municipal government; or any
2169 quasi-governmental agency that acts in such capacity under the
2170 specific authority of the laws of any state or the United
2171 States.
2172 (h) A consumer finance company licensed pursuant to chapter
2173 516 as of October 1, 1991.
2174 (f)(i) Any natural person making or acquiring a mortgage
2175 loan with his or her own funds for his or her own investment,
2176 and who does not hold himself or herself out to the public, in
2177 any manner, as being in the mortgage lending business.
2178 (g)(j) Any natural person selling a mortgage that was made
2179 or purchased with that person's funds for his or her own
2180 investment, and who does not hold himself or herself out to the
2181 public, in any manner, as being in the mortgage lending
2182 business.
2183 (h)(k) Any person who acts solely under contract and as an
2184 agent for federal, state, or municipal agencies in the servicing
2185 of mortgage loans.
2186 (2) A mortgage broker who closes a mortgage loan in the
2187 mortgage broker's own name in a table-funded transaction is not
2188 considered as acting as a mortgage lender if the mortgage
2189 broker, at or before the closing, advises the borrower in
2190 writing that the mortgage broker is not the actual lender in the
2191 transaction and discloses the name and address of the actual
2192 lender who advances the funds for the loan and to whom the loan
2193 will be assigned at or after settlement.
2194 (2)(a) A natural person employed by a mortgage lender or
2195 correspondent mortgage lender licensed under ss. 494.001
2196 494.0077 is exempt from the licensure requirements of ss.
2197 494.001-494.0077 when acting within the scope of employment with
2198 the licensee.
2199 (b) A corporation that is in existence on October 1, 1991,
2200 and that is a wholly owned subsidiary of a consumer finance
2201 company licensed pursuant to chapter 516 on October 1, 1991, is
2202 not required to be licensed under ss. 494.006-494.0077 in order
2203 to act as a mortgage lender or a correspondent mortgage lender.
2204 (3) It is unnecessary to negate any of the exemptions
2205 provided in ss. 494.001-494.0077 in any complaint, information,
2206 indictment, or other writ or proceeding brought under ss.
2207 494.001-494.0077. The burden of establishing the right to any
2208 exemption is upon the party claiming the benefit of the
2209 exemption.
2210 Section 37. Section 494.0061, Florida Statutes, is
2211 repealed.
2212 Section 38. Section 494.00611, Florida Statutes, is created
2213 to read:
2214 494.00611 Mortgage lender license.—
2215 (1) Each person who acts as a mortgage lender must be
2216 licensed under this section.
2217 (2) To apply for a mortgage lender license the applicant
2218 must:
2219 (a) Submit a completed application form as prescribed by
2220 the commission by rule.
2221 (b) Designate a qualified principal loan originator who
2222 meets the requirement of s. 494.0035 on the application form.
2223 (c) Submit a nonrefundable application fee of $625, and the
2224 $100 nonrefundable fee required by s. 494.0017. Application fees
2225 may not be prorated for partial years of licensure.
2226 (d) Submit a complete set of fingerprints for each of the
2227 applicant’s control persons to:
2228 1. The registry for a federal criminal history check. If
2229 the registry is not processing fingerprints at the time the
2230 application is submitted, the Department of Law Enforcement
2231 shall forward the fingerprints submitted pursuant to
2232 subparagraph 2. to the Federal Bureau of Investigation for
2233 processing.
2234 2. The office for a state criminal history check. The
2235 office may contract with a third-party vendor that provides live
2236 scan fingerprinting in lieu of a paper fingerprint card. All
2237 fingerprints shall be submitted to the Department of Law
2238 Enforcement and entered into the statewide automated fingerprint
2239 identification system established in s. 943.05(2)(b) and
2240 available for use in accordance with s. 943.05(2)(g). The cost
2241 of fingerprinting shall be borne by the applicant.
2242 (e) Submit a copy of the applicant’s audited financial
2243 statement for the most recent fiscal year, which documents that
2244 the applicant has a bona fide and verifiable net worth, pursuant
2245 to United States generally accepted accounting principles, of at
2246 least $250,000, which must be continuously maintained as a
2247 condition of licensure. If the applicant is a wholly-owned
2248 subsidiary of another corporation, the audited financial
2249 statement for the parent corporation’s financial statement
2250 satisfies this requirement. The commission may establish by rule
2251 the form and procedures for filing the audited financial
2252 statement, including the requirement to file the statement with
2253 the registry when technology is available.
2254 (f) Authorize the registry to obtain an independent credit
2255 report on each of the applicant’s control persons from a
2256 consumer reporting agency, and transmit or provide access to the
2257 report to the office. The cost of the credit report shall be
2258 borne by the applicant.
2259 (g) Submit additional information or documentation
2260 requested by the office and required by rule concerning the
2261 applicant or a control person of the applicant. Additional
2262 information may include documentation of pending and prior
2263 disciplinary and criminal history events, including arrest
2264 reports and certified copies of charging documents, plea
2265 agreements, judgments and sentencing documents, documents
2266 relating to pretrial intervention, orders terminating probation
2267 or supervised release, final administrative agency orders, or
2268 other comparable documents that may provide the office with the
2269 appropriate information to determine eligibility for licensure.
2270 (h) Submit any other information required by the registry
2271 for the processing of the application.
2272 (3) An application is considered received for the purposes
2273 of s. 120.60 upon the office's receipt of all documentation from
2274 the registry including the completed application form, criminal
2275 history information, and credit history information, as well as
2276 the nonrefundable license application fees and all applicable
2277 fingerprinting processing fees.
2278 (4) The office shall issue a mortgage lender license to
2279 each person who is not otherwise ineligible and who meets the
2280 requirements of this section. However, it is a ground for denial
2281 of licensure if the applicant or one of the applicant’s control
2282 persons:
2283 (a) Has committed any violation specified in s. 494.0072,
2284 or is the subject of a pending felony criminal prosecution or a
2285 prosecution or an administrative enforcement action, in any
2286 jurisdiction, which involves fraud, dishonesty, breach of trust,
2287 money laundering, or any act of moral turpitude.
2288 (b) Demonstrates a lack of financial responsibility,
2289 character, and general fitness which would fail to command the
2290 confidence of the community and to warrant a determination that
2291 the mortgage broker will operate honestly, fairly, and
2292 efficiently. For purposes of this paragraph, a person has shown
2293 that he or she is not financially responsible if he or she has
2294 shown a disregard in the management of his or her own financial
2295 condition which may include, but is not limited to:
2296 1. Current outstanding judgments, except judgments
2297 resulting solely from medical expenses;
2298 2. Current outstanding tax liens or other government liens
2299 and filings;
2300 3. Foreclosures within the past 3 years; or
2301 4. A pattern of seriously delinquent accounts within the
2302 past 3 years.
2303 (5) The office may not issue a license if the applicant is
2304 has had a mortgage lender license or its equivalent revoked in
2305 any jurisdiction, or any of the applicant's control persons has
2306 ever had a loan originator license or its equivalent revoked in
2307 any governmental jurisdiction.
2308 (6) A person required to be licensed under this part, or an
2309 agent or employee thereof, is deemed to have consented to the
2310 venue of courts in this state regarding any matter within the
2311 authority of ss. 494.001-494.0077 regardless of where an act or
2312 violation was committed.
2313 (7) A license issued in accordance with this part is not
2314 transferable or assignable.
2315 (8) A mortgage lender or branch office license may be
2316 withdrawn pursuant to s. 120.60 if it was issued through mistake
2317 or inadvertence of the office. A license must be reinstated if
2318 the applicant can demonstrate that the requirements for
2319 obtaining the license under this chapter have been satisfied.
2320 (9) Each lender, regardless of the number of branches it
2321 operates, shall designate a principal loan originator
2322 representative who exercises control of the licensee's business,
2323 and a branch manager for each branch office. Each mortgage
2324 lender must keep the office informed of the persons designated
2325 as prescribed by commission rule, which includes documentation
2326 of the individual’s acceptance of such responsibility. If the
2327 designation is inaccurate, the branch shall be deemed to be
2328 operated under the full charge, control, and supervision by each
2329 officer, director, or ultimate equitable owner of a 10-percent
2330 or greater interest in the mortgage lender business, or any
2331 other person in a similar capacity during that time.
2332 (10) The commission shall, by rule, establish time periods
2333 during which an applicant is barred from licensure due to prior
2334 criminal convictions of, or guilty or nolo contendre pleas by,
2335 any of the applicant’s control persons, regardless of
2336 adjudication.
2337 (a) The rules must provide:
2338 1. Permanent bars for felonies involving fraud, dishonesty,
2339 breach of trust, or money laundering;
2340 2. A 15-year disqualifying period for felonies involving
2341 moral turpitude;
2342 3. A 7-year period for all other felonies; and
2343 4. A 5-year period for misdemeanors involving fraud,
2344 dishonesty, or any other act of moral turpitude.
2345 (b) The rule may also provide for mitigating factors, an
2346 additional waiting period due to dates of imprisonment or
2347 community supervision, an additional waiting period due to the
2348 commitment of multiple crimes, and other factors reasonably
2349 related to the applicant’s criminal history. The rule may not
2350 provide standards that are less rigorous than those set forth in
2351 the S.A.F.E. Mortgage Licensing Act of 2008. An applicant is not
2352 eligible for licensure until the expiration of the disqualifying
2353 period set by rule. Section 112.011 is not applicable to
2354 eligibility for licensure under this part.
2355 (11) All mortgage lender licenses must be renewed annually
2356 by December 31 pursuant to s. 494.00612. If a person holding an
2357 active mortgage broker license has not applied to renew the
2358 license annually on or before December 31, the mortgage broker
2359 license expires on December 31. If a person holding an active
2360 mortgage broker license has applied to renew the license on or
2361 before December 31, the mortgage broker license remains active
2362 until the renewal application is approved or denied. A mortgage
2363 broker may not be precluded from reapplying for licensure upon
2364 expiration of a previous license.
2365 Section 39. Section 494.00612, Florida Statutes, is created
2366 to read:
2367 494.00612 Mortgage lender license renewal.—
2368 (1) To renew a mortgage lender license, a mortgage lender
2369 must:
2370 (a) Submit a completed license renewal form as prescribed
2371 by commission rule.
2372 (b) Submit a nonrefundable renewal fee of $625, and the
2373 $100 nonrefundable fee required by s. 494.0017.
2374 (c) Submit a complete set of fingerprints in accordance
2375 with s. 494.00611(2)(d).
2376 (d) Provide proof that the mortgage lender continues to
2377 meet the net worth requirement in a form prescribed by the
2378 commission rule.
2379 (e) Authorize the registry to obtain an independent credit
2380 report on the mortgage lender from a consumer reporting agency,
2381 and transmit or provide access to the report to the office. The
2382 cost of the credit report shall be borne by the applicant.
2383 (f) Submit any additional information or documentation
2384 requested by the office and required by rule concerning the
2385 licensee. Additional information may include documentation of
2386 pending and prior disciplinary and criminal history events,
2387 including arrest reports and certified copies of charging
2388 documents, plea agreements, judgments and sentencing documents,
2389 documents relating to pretrial intervention, orders terminating
2390 probation or supervised release, final administrative agency
2391 orders, or other comparable documents that may provide the
2392 office with the appropriate information to determine eligibility
2393 for licensure.
2394 (2) The office may not renew a mortgage lender license
2395 unless the mortgage lender continues to meet the minimum
2396 standards for initial license issuance pursuant to s. 494.00611
2397 and adopted rule.
2398 Section 40. Section 494.0062, Florida Statutes, is
2399 repealed.
2400 Section 41. Section 494.0063, Florida Statutes, is amended
2401 to read:
2402 494.0063 Audited financial statements.—All audited
2403 financial statements required by ss. 494.001-494.0077 must be
2404 prepared by an independent licensed certified public accountant.
2405 A mortgage lender must obtain an annual financial audit report
2406 as of the date of the licensee’s fiscal year end, as disclosed
2407 to the office on the application or a subsequent amendment to
2408 the application. The mortgage lender shall submit a copy of the
2409 report to the office within 120 days after the end of the
2410 licensee’s fiscal year. If the applicant is a wholly owned
2411 subsidiary of another corporation, the financial audit report of
2412 the parent corporation’s satisfies this requirement. If the
2413 licensee changes its fiscal year, the licensee must file report
2414 within 18 months after the previously submitted report. The
2415 commission may establish by rule the procedures and form for
2416 filing a financial audit report, including the requirement to
2417 file the report with the registry when technology is available.
2418 Section 42. Section 494.0064, Florida Statutes, is
2419 repealed.
2420 Section 43. Effective April 1, 2020, section 494.0065,
2421 Florida Statutes, is repealed.
2422 Section 44. Section 494.0066, Florida Statutes, is amended
2423 to read:
2424 494.0066 Branch offices.—
2425 (1) Each branch office of a mortgage lender must be
2426 licensed under this section A branch office license is required
2427 for each branch office maintained by a licensee under ss.
2428 494.006-494.0077.
2429 (2) The office shall issue a branch office license to a
2430 mortgage lender licensee licensed under ss. 494.006-494.0077
2431 after the office determines that the mortgage lender licensee
2432 has submitted a completed branch office application form as
2433 prescribed by rule by the commission, and an initial
2434 nonrefundable branch office license fee of $350, and the $100
2435 nonrefundable fee required by s. 494.0017 $325. Application fees
2436 may not be prorated for partial years of licensure. The branch
2437 office application must include the name and license number of
2438 the mortgage lender licensee under this part ss. 494.006
2439 494.0077, the name of the branch manager licensee's employee in
2440 charge of the branch office, and the address of the branch
2441 office. The branch office license shall be issued in the name of
2442 the mortgage lender licensee under ss. 494.006-494.0077 and must
2443 be renewed in conjunction with the license renewal. An
2444 application is considered received for purposes of s.120.60 upon
2445 receipt of a completed branch office renewal form as prescribed
2446 by commission rule, and the required fees.
2447 (3) A branch office license must be renewed at the time of
2448 renewing the mortgage lender license.
2449 Section 45. Section 494.00665, Florida Statutes, is created
2450 to read:
2451 494.00665 Principal loan originator and branch manager for
2452 mortgage lender.—
2453 (1) Each mortgage lender business must be operated by a
2454 principal loan originator who shall have full charge, control,
2455 and supervision of the mortgage lender business. The principal
2456 loan originator must have been licensed as a loan originator
2457 pursuant to s. 494.00323. Each mortgage lender must keep the
2458 office informed of the person designated as the principal loan
2459 originator as prescribed by commission rule. If the designation
2460 is inaccurate, the business shall be deemed to be operated under
2461 the full charge, control, and supervision of each officer,
2462 director, or ultimate equitable owner of a 10-percent or greater
2463 interest in the mortgage lender business, or any other person in
2464 a similar capacity during that time. A loan originator may not
2465 be a principal loan originator for more than one mortgage lender
2466 at any given time.
2467 (2) Each branch office of a mortgage lender must be
2468 operated by a branch manager who shall have full charge,
2469 control, and supervision of the branch office. The designated
2470 branch manager must be a licensed loan originator pursuant to s.
2471 494.00323. Each mortgage lender must keep the office informed of
2472 the person designated as the branch manager as prescribed by
2473 commission rule, which includes documentation of the
2474 individual’s acceptance of such responsibility. If the
2475 designation is inaccurate, the branch office shall be deemed to
2476 be operated under the full charge, control, and supervision of
2477 each officer, director, or ultimate equitable owner of a 10
2478 percent or greater interest in the mortgage lender business, or
2479 any other person in a similar capacity during that time.
2480 Section 46. Section 494.0067, Florida Statutes, is amended
2481 to read:
2482 494.0067 Requirements of mortgage lenders licensees under
2483 ss. 494.006-494.0077.—
2484 (1) A mortgage lender that Each licensee under ss. 494.006
2485 494.0077 which makes mortgage loans on real estate in this state
2486 shall transact business from a principal place of business. Each
2487 principal place of business and each branch office shall be
2488 operated under the full charge, control, and supervision of the
2489 licensee pursuant to this part under ss. 494.006-494.0077.
2490 (2) A license issued under this part ss. 494.006-494.0077
2491 is not transferable or assignable.
2492 (3) A mortgage lender Each licensee under ss. 494.006
2493 494.0077 shall report, on a form prescribed by rule of the
2494 commission, any change in the information contained in any
2495 initial application form, or any amendment thereto, within not
2496 later than 30 days after the change is effective.
2497 (4) A mortgage lender Each licensee under ss. 494.006
2498 494.0077 shall report any changes in the principal loan
2499 originator, any addition or subtraction of a control person,
2500 partners, officers, members, joint venturers, directors, or
2501 control persons of any licensee or any change changes in the
2502 form of business organization by written amendment in such form
2503 and at such time that the commission specifies by rule.
2504 (a) In any case in which a person or a group of persons,
2505 directly or indirectly or acting by or through one or more
2506 persons, proposes to purchase or acquire a controlling interest
2507 in a licensee, such person or group must submit an initial
2508 application for licensure as a mortgage lender or correspondent
2509 mortgage lender before such purchase or acquisition and at the
2510 time and in the form prescribed by the commission by rule.
2511 (b) As used in this subsection, the term “controlling
2512 interest” means possession of the power to direct or cause the
2513 direction of the management or policies of a company whether
2514 through ownership of securities, by contract, or otherwise. Any
2515 person who directly or indirectly has the right to vote 25
2516 percent or more of the voting securities of a company or who is
2517 entitled to 25 percent or more of the company's profits is
2518 presumed to possess a controlling interest.
2519 (b)(c) Any addition of a designated principal
2520 representative, partner, officer, member, joint venturer,
2521 director, or control person of the applicant who does not have a
2522 controlling interest and who has not previously filed a Uniform
2523 Mortgage Biographical Statement & Consent Form, MU2, or has not
2524 previously complied with fingerprinting and credit report
2525 requirements of s. 494.00611 is the provisions of s.
2526 494.0061(2)(g) and (h), s. 494.0062(2)(g) and (h), or s.
2527 494.0065(5)(e) and (f) shall be subject to the such provisions
2528 of this section unless required to file an initial application
2529 in accordance with paragraph (a). If after the addition of a
2530 control person, the office determines that the licensee does not
2531 continue to meet licensure requirements, the office may bring
2532 administrative action in accordance with s. 494.0072 to enforce
2533 the provisions of this section.
2534 (d) The commission shall adopt rules pursuant to ss.
2535 120.536(1) and 120.54 providing for the waiver of the
2536 application required by this subsection if the person or group
2537 of persons proposing to purchase or acquire a controlling
2538 interest in a licensee has previously complied with the
2539 provisions of s. 494.0061(2)(g) and (h), s. 494.0062(2)(g) and
2540 (h), or s. 494.0065(5)(e) and (f) with the same legal entity or
2541 is currently licensed with the office under this chapter.
2542 (5) Each mortgage lender licensee under ss. 494.006
2543 494.0077 shall report in a form prescribed by rule by the
2544 commission any indictment, information, charge, conviction, plea
2545 of guilty or nolo contendere, regardless of adjudication, or
2546 plea of guilty to any felony or any crime or administrative
2547 violation that involves fraud, dishonesty, breach of trust,
2548 money laudering dishonest dealing, or any other act of moral
2549 turpitude, in any jurisdiction, by the licensee under ss.
2550 494.006-494.0077 or any principal officer, director, or ultimate
2551 equitable owner of 10 percent or more of the licensed
2552 corporation, within not later than 30 business days after the
2553 indictment, information, charge, conviction, or final
2554 administrative action.
2555 (6) Each mortgage lender licensee under ss. 494.006
2556 494.0077 shall report any action in bankruptcy, voluntary or
2557 involuntary, to the office, within not later than 7 business
2558 days after the action is instituted.
2559 (7) Each mortgage lender licensee under ss. 494.006
2560 494.0077 shall designate a registered agent in this state for
2561 service of process.
2562 (8) Each mortgage lender licensee under ss. 494.006
2563 494.0077 shall provide an applicant for a mortgage loan a good
2564 faith estimate of the costs the applicant can reasonably expect
2565 to pay in obtaining a mortgage loan. The good faith estimate of
2566 costs must shall be mailed or delivered to the applicant within
2567 3 business days a reasonable time after the licensee receives a
2568 written loan application from the applicant. The estimate of
2569 costs may be provided to the applicant by a person other than
2570 the licensee making the loan. The good faith estimate must
2571 identify the recipient of all payments charged to the borrower
2572 and, except for all fees to be received by the mortgage broker
2573 brokerage business and the mortgage lender or correspondent
2574 mortgage lender, may be disclosed in generic terms, such as, but
2575 not limited to, paid to appraiser, officials, title company, or
2576 any other third-party service provider. The licensee bears the
2577 burden of proving such disclosures were provided to the
2578 borrower. The commission may adopt rules that set forth the
2579 disclosure requirements of this section.
2580 (9) On or before April 30, 2000, each mortgage lender or
2581 correspondent mortgage lender shall file an initial report
2582 stating the full legal name, residential address, social
2583 security number, date of birth, mortgage broker license number,
2584 date of hire, and, if applicable, date of termination for each
2585 person who acted as a loan originator or an associate of the
2586 mortgage lender or correspondent mortgage lender during the
2587 immediate preceding quarter. Thereafter, a mortgage lender or
2588 correspondent mortgage lender shall file a report only if a
2589 person became or ceased to be a loan originator or an associate
2590 of the mortgage lender or correspondent mortgage lender during
2591 the immediate preceding quarter. Such report shall be filed
2592 within 30 days after the last day of each calendar quarter and
2593 shall contain the full legal name, residential address, social
2594 security number, date of birth, date of hire and, if applicable,
2595 the mortgage broker license number and date of termination of
2596 each person who became or ceased to be a loan originator or an
2597 associate of the mortgage lender or correspondent mortgage
2598 lender during the immediate preceding quarter. The commission
2599 shall prescribe, by rule, the procedures for filing reports
2600 required by this subsection.
2601 (10)(a) Each mortgage lender or correspondent mortgage
2602 lender licensee shall require the principal representative and
2603 all loan originators, not currently licensed as mortgage brokers
2604 pursuant to s. 494.0033, who perform services for the licensee
2605 to complete 14 hours of professional continuing education during
2606 each biennial license period. The education shall cover primary
2607 and subordinate mortgage financing transactions and the
2608 provisions of this chapter and the rules adopted under this
2609 chapter.
2610 (b) The licensee shall maintain records of such training
2611 for a period of 4 years, including records of the content of and
2612 hours designated for each program and the date and location of
2613 the program.
2614 (c) Evidence of completion of such programs shall be
2615 included with the licensee's renewal application.
2616 (9)(11) The disclosures in this subsection must be
2617 furnished in writing at the time an adjustable rate mortgage
2618 loan is offered to the borrower and whenever the terms of the
2619 adjustable rate mortgage loan offered have a material change
2620 prior to closing. The lender shall furnish the disclosures
2621 relating to adjustable rate mortgages in a format prescribed by
2622 ss. 226.18 and 226.19 of Regulation Z of the Board of Governors
2623 of the Federal Reserve System, as amended; its commentary, as
2624 amended; and the federal Truth in Lending Act, 15 U.S.C. ss.
2625 1601 et seq., as amended; together with the Consumer Handbook on
2626 Adjustable Rate Mortgages, as amended; published by the Federal
2627 Reserve Board and the Federal Home Loan Bank Board. The licensee
2628 bears the burden of proving such disclosures were provided to
2629 the borrower.
2630 (10)(12)(a) In every mortgage loan transaction, each
2631 mortgage lender licensee under ss. 494.006-494.0077 shall notify
2632 a borrower of any material changes in the terms of a mortgage
2633 loan previously offered to the borrower within 3 business days
2634 after being made aware of such changes by the lender but at
2635 least not less than 3 business days before the signing of the
2636 settlement or closing statement. The licensee bears the burden
2637 of proving such notification was provided and accepted by the
2638 borrower.
2639 (b) A borrower may waive the right to receive notice of a
2640 material change that is granted under paragraph (a) if the
2641 borrower determines that the extension of credit is needed to
2642 meet a bona fide personal financial emergency and the right to
2643 receive notice would delay the closing of the mortgage loan. The
2644 imminent sale of the borrower's home at foreclosure during the
2645 3-day period before the signing of the settlement or closing
2646 statement constitutes an example of a bona fide personal
2647 financial emergency. In order to waive the borrower's right to
2648 receive notice not less than 3 business days before the signing
2649 of the settlement or closing statement of any such material
2650 change, the borrower must provide the licensee with a dated
2651 written statement that describes the personal financial
2652 emergency, waives the right to receive the notice, bears the
2653 borrower's signature, and is not on a printed form prepared by
2654 the licensee for the purpose of such a waiver.
2655 (11) Each mortgage lender must report to the office the
2656 failure to meet the net worth requirements of s. 494.00611
2657 within 2 days after the mortgage lender’s knowledge of such
2658 failure or after the mortgage lender should have known of such
2659 failure.
2660 Section 47. Section 494.0068, Florida Statutes, is amended
2661 to read:
2662 494.0068 Loan application process.—
2663 (1) In addition to the requirements set forth in s.
2664 494.0067(8), before accepting an application fee in whole or in
2665 part, a credit report fee, an appraisal fee, or a fee charged as
2666 reimbursement for third-party charges, a mortgage lender shall
2667 make a written disclosure to the borrower, which disclosure may
2668 be contained in the application, setting forth:
2669 (a) Whether all or any part of such fees or charges is
2670 refundable.
2671 (b) The terms and conditions for the refund, if all or any
2672 part of the fees or charges is refundable.
2673 (c) A realistic estimate of the number of days required to
2674 issue a commitment following receipt of the application by the
2675 lender.
2676 (d) The name or title of a person within the lender's
2677 organization to whom the borrower may address written questions,
2678 comments, or complaints and who is required to promptly respond
2679 to such inquiries.
2680 (2) The disclosures required in subsection (1) must shall
2681 be acknowledged in writing by the borrower and maintained by the
2682 mortgage lender, and a copy of such acknowledgment shall be
2683 given to the borrower.
2684 (3) The borrower may, without penalty or responsibility for
2685 paying additional fees and charges, withdraw an application at
2686 any time prior to acceptance of commitment. Upon such
2687 withdrawal, the mortgage lender is responsible for refunding to
2688 the borrower only those fees and charges to which the borrower
2689 may be entitled pursuant to the terms set forth in the written
2690 disclosure required by subsection (1), except that:
2691 (a) If the lender failed to provide the borrower with the
2692 written disclosure required by subsection (1), the lender shall
2693 promptly refund to the borrower all funds paid to the lender; or
2694 (b) If the lender failed to make a good faith effort to
2695 approve the loan, the lender shall promptly refund to the
2696 borrower all funds paid to the lender.
2697 (4) The application fee must be reasonably related to the
2698 services to be performed and may not be based upon a percentage
2699 of the principal amount of the loan or the amount financed.
2700 (5) For the purposes of this section, the term “application
2701 fee” means any moneys advanced by the borrower upon filing an
2702 application with a mortgage lender to offset the lender's
2703 expenses for determining whether the borrower is qualified for
2704 the mortgage loan or whether the mortgage loan should be funded.
2705 Section 48. Section 494.0069, Florida Statutes, is amended
2706 to read:
2707 494.0069 Lock-in agreement.—
2708 (1) Each lock-in agreement must be in writing and must
2709 contain:
2710 (a) The expiration date of the lock-in, if any;
2711 (b) The interest rate locked in, if any;
2712 (c) The discount points locked in, if any;
2713 (d) The commitment fee locked in, if any;
2714 (e) The lock-in fee, if any; and
2715 (f) A statement advising of the provisions of ss. 494.006
2716 494.0077 regarding lock-in agreements.
2717 (2) The mortgage lender or correspondent mortgage lender
2718 shall make a good faith effort to process the mortgage loan
2719 application and stand ready to fulfill the terms of its
2720 commitment before the expiration date of the lock-in agreement
2721 or any extension thereof.
2722 (3) Any lock-in agreement received by a mortgage lender or
2723 correspondent mortgage lender by mail or through a mortgage
2724 broker must be signed by the mortgage lender or correspondent
2725 mortgage lender in order to become effective. The borrower may
2726 rescind any lock-in agreement until a written confirmation of
2727 the agreement has been signed by the lender and mailed to the
2728 borrower or to the mortgage broker brokerage business pursuant
2729 to its contractual relationship with the borrower. If a borrower
2730 elects to so rescind, the mortgage lender or correspondent
2731 mortgage lender shall promptly refund any lock-in fee paid.
2732 (4)(a) Before Any correspondent mortgage lender or mortgage
2733 lender prior to issuing a mortgage loan rate lock-in agreement,
2734 a mortgage lender must have the ability to timely advance funds
2735 on all mortgage loans for which rate lock-in agreements have
2736 been issued. As used in this section, “ability to timely advance
2737 funds” means having sufficient liquid assets or a line of credit
2738 necessary to cover all rate lock-in agreements issued with
2739 respect to which a lock-in fee is collected.
2740 (a)(b) A correspondent mortgage lender or mortgage lender
2741 that does not comply with this subsection paragraph (a) may
2742 issue mortgage rate lock-in agreements only if, prior to the
2743 issuance, the correspondent mortgage lender or mortgage lender:
2744 1. Has received a written rate lock-in agreement from a
2745 correspondent mortgage lender or mortgage lender that complies
2746 with this subsection paragraph (a); or
2747 2. Has received a written rate lock-in agreement from an
2748 institutional investor or an agency of the Federal Government or
2749 the state or local government that will be funding, making, or
2750 purchasing the mortgage loan.
2751 (b)(c) All rate lock-in fees collected by a mortgage lender
2752 or correspondent mortgage lender who is not in compliance with
2753 paragraph (a) must be deposited into an escrow account in a
2754 federally insured financial institution, and such fees may shall
2755 not be removed from such escrow account until:
2756 1. The mortgage loan closes and is funded;
2757 2. The applicant cancels the loan application or the loan
2758 application is rejected; or
2759 3. The mortgage lender or correspondent mortgage lender is
2760 required to forward a portion of the lock-in fee to another
2761 correspondent mortgage lender, mortgage lender, institutional
2762 investor, or agency that will be funding, making, or purchasing
2763 the loan. The mortgage lender or correspondent mortgage lender
2764 may remove only the amount of the lock-in fee actually paid to
2765 another mortgage lender, correspondent mortgage lender,
2766 institutional investor, or agency.
2767 (5) For purposes of this section, the term “lock-in fee”
2768 means any moneys advanced by the borrower to lock in for a
2769 specified period of time a specified interest rate or discount
2770 points.
2771 (6) The commission may adopt by rule a form for required
2772 lock-in agreement disclosures.
2773 Section 49. Section 494.007, Florida Statutes, is amended
2774 to read:
2775 494.007 Commitment process.—
2776 (1) If a commitment is issued, the mortgage lender shall
2777 disclose in writing:
2778 (a) The expiration date of the commitment;
2779 (b) The mortgage amount, meaning the face amount of credit
2780 provided to the borrower or in the borrower's behalf;
2781 (c) If the interest rate or other terms are subject to
2782 change before expiration of the commitment:
2783 1. The basis, index, or method, if any, which will be used
2784 to determine the rate at closing. Such basis, index, or method
2785 shall be established and disclosed with direct reference to the
2786 movement of an interest rate index or of a national or regional
2787 index that is available to and verifiable by the borrower and
2788 beyond the control of the lender; or
2789 2. The following statement, in at least 10-point bold type:
2790 “The interest rate will be the rate established by the lender in
2791 its discretion as its prevailing rate . . . days before
2792 closing.”;
2793 (d) The amount of the commitment fee, if any, and whether
2794 and under what circumstances the commitment fee is refundable;
2795 and
2796 (e) The time, if any, within which the commitment must be
2797 accepted by the borrower.
2798 (2) The provisions of a commitment cannot be changed prior
2799 to expiration of the specified period within which the borrower
2800 must accept it. If any information necessary for an accurate
2801 disclosure required by subsection (1) is unknown to the mortgage
2802 lender at the time disclosure is required, the lender shall make
2803 the disclosure based upon the best information reasonably
2804 available to it and shall state that the disclosure is an
2805 estimate.
2806 (3) A commitment fee is refundable if:
2807 (a) The commitment is contingent upon approval by parties
2808 to whom the mortgage lender seeks to sell the loan.
2809 (b) The loan purchaser's requirements are not met due to
2810 circumstances beyond the borrower's control.
2811 (c) The borrower is willing but unable to comply with the
2812 loan purchaser's requirements.
2813 Section 50. Section 494.0071, Florida Statutes, is amended
2814 to read:
2815 494.0071 Expiration of lock-in agreement or commitment.—If
2816 a lock-in agreement has been executed and the loan does not
2817 close before the expiration date of either the lock-in agreement
2818 or any commitment issued consistent therewith through no
2819 substantial fault of the borrower, the borrower may withdraw the
2820 application or reject or terminate any commitment, whereupon the
2821 mortgage lender or correspondent mortgage lender shall promptly
2822 refund to the borrower any lock-in fee and any commitment fee
2823 paid by the borrower.
2824 Section 51. Section 494.0072, Florida Statutes, is amended
2825 to read:
2826 494.0072 Administrative penalties and fines; license
2827 violations.—
2828 (1) Whenever the office finds a person in violation of an
2829 act specified in subsection (2), it may enter an order imposing
2830 one or more of the following penalties against that person:
2831 (a) Revocation of a license or registration.
2832 (b) Suspension of a license or registration, subject to
2833 reinstatement upon satisfying all reasonable conditions that the
2834 office specifies.
2835 (c) Placement of the licensee or applicant on probation for
2836 a period of time and subject to all reasonable conditions that
2837 the office specifies.
2838 (d) Issuance of a reprimand.
2839 (e) Imposition of a fine in an amount not exceeding $5,000
2840 for each count or separate offense.
2841 (f) Denial of a license or registration.
2842 (1)(2) Each of the following acts constitutes a ground for
2843 which the disciplinary actions specified in subsection (2) (1)
2844 may be taken:
2845 (a) Being convicted of, or entering a plea of guilty or
2846 Pleading nolo contendere to, or having been convicted or found
2847 guilty of, regardless of whether adjudication was withheld, any
2848 felony or a crime involving fraud, dishonesty, breach of trust,
2849 money laudering dishonest dealing, or any act of moral
2850 turpitude.
2851 (b) Fraud, misrepresentation, deceit, negligence, or
2852 incompetence in any mortgage financing transaction.
2853 (c) A material misstatement or ommission of fact on an
2854 initial or renewal application.
2855 (d) Disbursement, or an act which has caused or will cause
2856 disbursement, to any person in any amount from the Mortgage
2857 Guaranty Regulatory Trust Fund, the Securities Guaranty Fund, or
2858 the Florida Real Estate Recovery Fund, regardless of any
2859 repayment or restitution to the disbursed fund by the licensee
2860 or any person acting on behalf of the licensee.
2861 (e) Failure of a mortgage lender to place immediately upon
2862 receipt, and maintain until authorized to disburse, any money
2863 entrusted to him or her by a person dealing with him or her as a
2864 mortgage lender in a segregated account in a federally insured
2865 financial institution;
2866 (f) Failure to account for or deliver to any person any
2867 personal property that has come into his or her hands and that
2868 is not the licensee's his or her property or that he or she is
2869 not in law or equity entitled to retain, under the circumstances
2870 and at the time which has been agreed upon or is required by law
2871 or, in the absence of a fixed time, upon demand of the person
2872 entitled to such accounting and delivery.
2873 (g) Failure to disburse funds in accordance with
2874 agreements.
2875 (h) Any misuse, misapplication, or misappropriation of
2876 personal property entrusted to his or her care to which he or
2877 she had no current property right at the time of entrustment.
2878 (i) Having a license, or the equivalent, to practice any
2879 profession or occupation revoked, suspended, or otherwise acted
2880 against, including the denial of licensure by a licensing
2881 authority of this state or another state, territory, or country
2882 for fraud, dishonest dealing, or any other act of moral
2883 turpitude.
2884 (j) Failure to comply with any order or rule made or issued
2885 under this part the provisions of ss. 494.001-494.0077.
2886 (k) Acting as a mortgage lender or operating a branch
2887 office correspondent mortgage lender without a current, active
2888 license issued under this part ss. 494.006-494.0077.
2889 (l) Failure to timely pay any fee, charge, or fine under
2890 ss. 494.001-494.0077.
2891 (l)(m) Failure to maintain, preserve, and keep available
2892 for examination all books, accounts, or other documents required
2893 by ss. 494.001-494.0077 or the rules of the commission.
2894 (m)(n) Refusal to permit an investigation or examination of
2895 books and records, or refusal to comply with an office subpoena
2896 or subpoena duces tecum.
2897 (n)(o) Consistently and materially underestimating the
2898 closing costs.
2899 (o)(p) Failure to comply with, or violations of, any other
2900 provision of ss. 494.001-494.0077.
2901 (p)(q) Commission of fraud, misrepresentation, concealment,
2902 or dishonest dealing by trick, scheme, or device;, culpable
2903 negligence;, or breach of trust in any business transaction in
2904 any state, nation, or territory; or aiding, assisting, or
2905 conspiring with any other person engaged in any such misconduct
2906 and in furtherance thereof.
2907 (q)(r) Failure to timely pay any fee, charge, or fine
2908 imposed or assessed pursuant to this chapter or rules adopted
2909 under this chapter.
2910 (r)(s) Payment to the office for a license or permit with a
2911 check or electronic transmission of funds that is dishonored by
2912 the applicant's or licensee's financial institution.
2913 (s)(t) Having a final judgment entered against the
2914 applicant or licensee in a civil action upon grounds of fraud,
2915 embezzlement, misrepresentation, or deceit.
2916 (t)(u)1. Having been the subject of any:
2917 1. Decision, finding, injunction, suspension, prohibition,
2918 revocation, denial, judgment, or administrative order by any
2919 court of competent jurisdiction, administrative law judge, state
2920 or federal agency, national securities exchange, national
2921 commodities exchange, national option exchange, national
2922 securities association, national commodities association, or
2923 national option association involving a violation of any federal
2924 or state securities or commodities law, or any rule or
2925 regulation adopted under such law, or involving a violation of
2926 any rule or regulation of any national securities, commodities,
2927 or options exchange or association.
2928 2. Having been the subject of any Injunction or adverse
2929 administrative order by a state or federal agency regulating
2930 banking, insurance, finance or small loan companies, real
2931 estate, mortgage brokers or lenders, money transmitters, or
2932 other related or similar industries.
2933 (u)(v) In any mortgage transaction, violating any provision
2934 of the federal Real Estate Settlement Procedure Act, as amended,
2935 12 U.S.C. ss. 2601 et seq.; the federal Truth in Lending Act, as
2936 amended, 15 U.S.C. ss. 1601 et seq.; or any regulations adopted
2937 under such acts.
2938 (v) Requesting a specific valuation, orally or in writing,
2939 from an appraiser for a particular property, implying to an
2940 appraiser that a specific valuation is needed for a particular
2941 property, or in any manner conditioning the order for an
2942 appraisal on the appraisal meeting a specific valuation. The
2943 numeric value of the specific valuation sought need not be
2944 stated, but rather the mere statement that a specific valuation
2945 is sought, violates this section.
2946 (w) Failure to provide a lender with all appraisals
2947 obtained by the loan originator with respect to a particular
2948 property if more than one appraisal has been obtained.
2949 (x) Conducting any lending activities in the absence of a
2950 properly designated principal loan originator or lending
2951 activities at any particular branch office without a properly
2952 designated branch manager.
2953 (y) Having a loan originator, mortgage broker, or mortgage
2954 lender license, or the equivalent thereof, revoked in any
2955 jurisdiction.
2956 (z) Operating an unlicensed branch office.
2957 (2) If the office finds a person in violation of an act
2958 specified in subsection (1), it may enter an order imposing one
2959 or more of the following penalties:
2960 (a) Revocation of a license or registration.
2961 (b) Suspension of a license or registration, subject to
2962 reinstatement upon satisfying all reasonable conditions imposed
2963 by the office.
2964 (c) Issuance of a reprimand.
2965 (d) Imposition of a fine up to $25,000 for each count or
2966 separate offense.
2967 (e) Denial of a license or registration.
2968 (3) A mortgage lender or correspondent mortgage lender is
2969 subject to the disciplinary actions specified in subsection (2)
2970 (1) if any officer, member, director, control person, joint
2971 venturer, or ultimate equitable owner of a 10-percent or greater
2972 interest in the mortgage lender or correspondent mortgage
2973 lender, associate, or employee of the mortgage lender or
2974 correspondent mortgage lender violates or has violated any
2975 provision of subsection (1) (2).
2976 (4) A natural person who is an associate of or employed by
2977 a mortgage lender or correspondent mortgage lender is subject to
2978 the disciplinary actions specified in subsection (1) if such
2979 person violates any provision of subsection (2).
2980 (4)(5) A principal loan originator representative of a
2981 mortgage lender or correspondent mortgage lender is subject to
2982 the disciplinary actions specified in subsection (2) (1) for
2983 violations of subsection (1) (2) by associates of the or
2984 employees in the course of an association or employment with the
2985 correspondent mortgage lender or the mortgage lender. The
2986 principal loan originator representative is only subject to
2987 suspension or revocation for associate or employee actions if
2988 there is a pattern of repeated violations by associates or
2989 employees or if the principal loan originator broker or
2990 principal representative had knowledge of the violations.
2991 (5) The office may summarily suspend the license of any
2992 mortgage lender in accordance with section 120.60(6) due to the
2993 arrest of a control person for any felony or crime involving
2994 fraud, dishonesty, breach of trust, money laundering, or any
2995 other act of moral turpitude, or if the office has reason to
2996 believe that a licensee poses immediate, serious danger to the
2997 public’s health, safety, or welfare. Any proceeding for the
2998 purpose of summary suspension of a license must be conducted by
2999 the commissioner of the office, or designee, who shall issue the
3000 final summary order. A reasonable belief by the office that a
3001 mortgage lender's control person has committed any act of fraud
3002 is deemed sufficient to constitute an immediate danger to the
3003 public’s health, safety, or welfare.
3004 (6) The office may deny any request to terminate or
3005 withdraw any application or license if the office believes that
3006 an act which would be a ground for denial, suspension,
3007 restriction, or revocation under this chapter has been
3008 committed.
3009 Section 52. Section 494.00721, Florida Statutes, is amended
3010 to read:
3011 494.00721 Net worth.—
3012 (1) The net worth requirements required in s. 494.00611 ss.
3013 494.0061, 494.0062, and 494.0065 shall be continually maintained
3014 as a condition of licensure.
3015 (2) If a mortgage lender or correspondent mortgage lender
3016 fails to satisfy the net worth requirements, the mortgage lender
3017 or correspondent mortgage lender shall immediately cease taking
3018 any new mortgage loan applications. Thereafter, the mortgage
3019 lender or correspondent mortgage lender shall have up to 60 days
3020 within which to satisfy the net worth requirements. If the
3021 licensee makes the office aware, prior to an examination, that
3022 the licensee no longer meets the net worth requirements, the
3023 mortgage lender or correspondent mortgage lender shall have 120
3024 days within which to satisfy the net worth requirements. A
3025 mortgage lender mau or correspondent mortgage lender shall not
3026 resume acting as a mortgage lender or correspondent mortgage
3027 lender without written authorization from the office, which
3028 authorization shall be granted if the mortgage lender or
3029 correspondent mortgage lender provides the office with
3030 documentation which satisfies the requirements of s. 494.00611
3031 s. 494.0061(2)(c), s. 494.0062(2)(c), or s. 494.0065(2),
3032 whichever is applicable.
3033 (3) If the mortgage lender or correspondent mortgage lender
3034 does not satisfy the net worth requirements within 120 days the
3035 120-day period, the license of the mortgage lender or
3036 correspondent mortgage lender shall be deemed to be relinquished
3037 and canceled and all servicing contracts shall be disposed of in
3038 a timely manner by the mortgage lender or correspondent mortgage
3039 lender.
3040 Section 53. Section 494.0073, Florida Statutes, is amended
3041 to read:
3042 494.0073 Mortgage lender or correspondent mortgage lender
3043 when acting as a mortgage broker brokerage business.—The
3044 provision of this part Sections 494.006-494.0077 do not prohibit
3045 a mortgage lender or correspondent mortgage lender from acting
3046 as a mortgage broker brokerage business. However, in mortgage
3047 transactions in which a mortgage lender or correspondent
3048 mortgage lender acts as a mortgage broker brokerage business,
3049 the provisions of ss. 494.0038, 494.004(8), 494.0042, and
3050 494.0043(1), (2), and (3) apply.
3051 Section 54. Section 494.0075, Florida Statutes, is amended
3052 to read:
3053 494.0075 Requirements for selling loans to noninstitutional
3054 investors.—
3055 (1) A mortgage lender, when selling a mortgage loan to a
3056 noninstitutional investor, shall:
3057 (a) Before any payment of money by a noninstitutional
3058 investor, provide an opinion of value from an appraiser stating
3059 the value of the security property unless the opinion is waived
3060 in writing. The opinion must state the value of the property as
3061 it exists on the date of the opinion. If any relationship exists
3062 between the lender and the appraiser, that relationship must
3063 shall be disclosed.;
3064 (b) Provide to the noninstitutional investor a mortgagee's
3065 title insurance policy or an opinion of title by an attorney
3066 licensed to practice law in this state, or a copy thereof:
3067 1. If a title insurance policy is issued, it must insure
3068 the noninstitutional investor against the unmarketability of the
3069 mortgagee's interest in such title. It must also specify any
3070 superior liens that exist against the property. If an opinion of
3071 title is issued by an attorney licensed to practice law in this
3072 state, the opinion must include a statement as to the
3073 marketability of the title to the property described in the
3074 mortgage and specify the priority of the mortgage being
3075 purchased.
3076 2. If the title insurance policy or opinion of title is not
3077 available at the time of purchase, the licensee shall provide a
3078 binder of the title insurance or conditional opinion of title.
3079 This binder or opinion must include any conditions or
3080 requirements needed to be corrected before prior to the issuance
3081 of the final title policy or opinion of title. The binder or
3082 opinion must also include information concerning the
3083 requirements specified in subparagraph 1. Any conditions must be
3084 eliminated or waived in writing by the investor before prior to
3085 delivery to the noninstitutional investor. The policy or
3086 opinion, or a copy thereof, shall be delivered to the investor
3087 within a reasonable period of time, not exceeding 6 months,
3088 after purchase.
3089 3. The requirements of this paragraph may be waived in
3090 writing. If the requirements are waived by the noninstitutional
3091 investor, the waiver must include the following wording: “The
3092 noninstitutional investor acknowledges that the mortgage lender
3093 selling this mortgage loan is not providing a title insurance
3094 policy or opinion of title issued by an attorney who is licensed
3095 to practice law in the State of Florida. Any requirement for
3096 title insurance or for a legal opinion of title is the sole
3097 responsibility of the noninstitutional mortgage purchaser.”
3098 (c) Provide, if the loan is other than a first mortgage, a
3099 statement showing the balance owed by the mortgagor on any
3100 existing mortgages prior to this investment and the status of
3101 such existing mortgages.
3102 (d) Provide a disclosure if the licensee is directly or
3103 indirectly acting as a borrower or principal in the transaction.
3104 (2) Each mortgage, or other instrument securing a note or
3105 assignment thereof, must shall be recorded before being
3106 delivered to the noninstitutional investor.
3107 (3) Each mortgage and assignment shall be recorded as soon
3108 as practical, but within no later than 30 business days after
3109 the date of purchase.
3110 (4) If the loan is to be serviced by a licensee under this
3111 part ss. 494.006-494.0077 for a noninstitutional investor, there
3112 shall be a written servicing agreement.
3113 (5) The mortgage lender shall cause the original note to be
3114 properly endorsed showing the assignment of the note to the
3115 noninstitutional investor.
3116 Section 55. Section 494.0077, Florida Statutes, is amended
3117 to read:
3118 494.0077 Other products and services.—Sections 494.006
3119 494.0077 do not prohibit A mortgage lender may not offer from
3120 offering, for a fee or commission, products and services in
3121 addition to those offered in conjunction with making a mortage
3122 loan.
3123 Section 56. Paragraph (b) of subsection (2) of section
3124 501.1377, Florida Statutes, is amended to read:
3125 501.1377 Violations involving homeowners during the course
3126 of residential foreclosure proceedings.—
3127 (2) DEFINITIONS.—As used in this section, the term:
3128 (b) “Foreclosure-rescue consultant” means a person who
3129 directly or indirectly makes a solicitation, representation, or
3130 offer to a homeowner to provide or perform, in return for
3131 payment of money or other valuable consideration, foreclosure
3132 related rescue services. The term does not apply to:
3133 1. A person excluded under s. 501.212.
3134 2. A person acting under the express authority or written
3135 approval of the United States Department of Housing and Urban
3136 Development or other department or agency of the United States
3137 or this state to provide foreclosure-related rescue services.
3138 3. A charitable, not-for-profit agency or organization, as
3139 determined by the United States Internal Revenue Service under
3140 s. 501(c)(3) of the Internal Revenue Code, which offers
3141 counseling or advice to an owner of residential real property in
3142 foreclosure or loan default if the agency or organization does
3143 not contract for foreclosure-related rescue services with a for
3144 profit lender or person facilitating or engaging in foreclosure
3145 rescue transactions.
3146 4. A person who holds or is owed an obligation secured by a
3147 lien on any residential real property in foreclosure if the
3148 person performs foreclosure-related rescue services in
3149 connection with this obligation or lien and the obligation or
3150 lien was not the result of or part of a proposed foreclosure
3151 reconveyance or foreclosure-rescue transaction.
3152 5. A financial institution as defined in s. 655.005 and any
3153 parent or subsidiary of the financial institution or of the
3154 parent or subsidiary.
3155 6. A licensed mortgage broker, mortgage lender, or
3156 correspondent mortgage lender that provides mortgage counseling
3157 or advice regarding residential real property in foreclosure,
3158 which counseling or advice is within the scope of services set
3159 forth in chapter 494 and is provided without payment of money or
3160 other consideration other than a mortgage broker brokerage fee
3161 as defined in s. 494.001.
3162 Section 57. Effective July 1, 2009:
3163 (1) All mortgage business school permits issued pursuant to
3164 s. 494.0029, Florida Statutes, expire on December 31, 2009.
3165 (2) All mortgage brokerage business licenses issued before
3166 January 1, 2010, pursuant to s. 494.0031 or s. 494.0032, Florida
3167 Statutes, expire on March 31, 2010. However, if a person holding
3168 an active mortgage brokerage business license issued on or
3169 before December 31, 2009, applies for a mortgage broker license
3170 between January 1, 2010, and March 31, 2010, the mortgage
3171 brokerage business license does not expire until the office
3172 approves or denies the mortgage broker license application. A
3173 mortgage broker license approved on or after January 1, 2010 is
3174 effective until December 31, 2010. Application fees may not be
3175 prorated for partial years of licensure.
3176 (3) All mortgage broker licenses issued before January 1,
3177 2010, pursuant to s. 494.0033 or s. 494.0034, Florida Statutes,
3178 expire on March 31, 2010. However, if a person holding an active
3179 mortgage broker license issued on or before December 31, 2009,
3180 applies for a loan originator license between January 1, 2010,
3181 and March 31, 2010, the mortgage broker license does not expire
3182 until the office approves or denies the loan originator license
3183 application. Notwithstanding s. 120.60, Florida Statutes, for
3184 applications submitted between July 1, 2009, and March 31, 2010,
3185 the office has 60 days to notify the applicant of any apparent
3186 errors or omissions in an application and to request any
3187 additional information the agency may require, and the office
3188 has 180 days to approve or deny a completed application.
3189 Application fees may not be prorated for partial years of
3190 licensure.
3191 (4) Persons holding an active mortgage lender license on
3192 January 1, 2010, issued pursuant to s. 494.0061 or s. 494.0064,
3193 Florida Statutes, must file a transition request, in a form
3194 prescribed by commission rule, with the registry by March 31,
3195 2010. The license of a mortgage lender that fails to file a
3196 transition request with the registry by March 31, 2010, expires
3197 on March 31, 2010. License fees may not be prorated for partial
3198 years of licensure.
3199 (5) All mortgage lender licenses issued before January 1,
3200 2010, pursuant to s. 494.0065, Florida Statutes, expire on March
3201 31, 2010. However, if a person holding such license applies for
3202 a mortgage broker license or mortgage lender license between
3203 January 1, 2010, and March 31, 2010, the license does not expire
3204 until the office approves or denies the mortgage broker license
3205 or mortgage lender license application. Application fees may not
3206 be prorated for partial years of licensure.
3207 (6) All correspondent mortgage lender licenses issued
3208 pursuant to s. 494.62, Florida Statutes, expire on March 31,
3209 2010. However, if a person holding an active correspondent
3210 mortgage lender license issued on or before December 31, 2009,
3211 applies for a mortgage broker or mortgage lender license between
3212 January 1, 2010, and March 31, 2010, the correspondent mortgage
3213 lender license does not expire until the office approves or
3214 denies the mortgage broker or mortgage lender license
3215 application. Application fees may not be prorated for partial
3216 years of licensure.
3217 (7) The Office of Financial Regulation shall impose a one
3218 time $50 registry fee to be paid by all persons who were
3219 licensed as a mortgage brokerage business, mortgage broker,
3220 mortgage lender, or correspondent mortgage lender before January
3221 1, 2010, and who are seeking licensure as a loan originator,
3222 mortgage broker, or mortgage lender between January 1, 2010 and
3223 March 31, 2010, as provided in this act, to be collected at the
3224 time of license application or transfer.
3225 Section 58. Except as otherwise expressly provided in this
3226 act, this act shall take effect January 1, 2010.