| 1 | A bill to be entitled |
| 2 | An act relating to fraud; amending s. 494.001, F.S.; |
| 3 | revising the definition of the term "mortgage loan |
| 4 | application" to conform to changes made by the act; |
| 5 | amending s. 494.0068, F.S.; moving language stating |
| 6 | that a mortgage loan application may be in writing or |
| 7 | electronically submitted; requiring that a mortgage |
| 8 | loan application contain fingerprints of the loan |
| 9 | originator and the borrower; requiring that the |
| 10 | borrower certify the accuracy of the information, that |
| 11 | an oral application be audio recorded, and that if the |
| 12 | primary language of the borrower is Spanish, the |
| 13 | application be on a specified application form; |
| 14 | amending s. 817.545, F.S.; revising classification of |
| 15 | certain offenses relating to mortgage fraud; providing |
| 16 | a period of limitation for commencing actions; |
| 17 | authorizing certain extensions of the limitation |
| 18 | period; specifying when the limitation period does not |
| 19 | run; providing an effective date. |
| 20 |
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| 21 | Be It Enacted by the Legislature of the State of Florida: |
| 22 |
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| 23 | Section 1. Subsection (24) of section 494.001, Florida |
| 24 | Statutes, is amended to read: |
| 25 | 494.001 Definitions.-As used in ss. 494.001-494.0077, the |
| 26 | term: |
| 27 | (24) "Mortgage loan application" means the submission of a |
| 28 | borrower's financial information in anticipation of a credit |
| 29 | decision, which includes the borrower's name, the borrower's |
| 30 | monthly income, the borrower's social security number to obtain |
| 31 | a credit report, the property address, an estimate of the value |
| 32 | of the property, the mortgage loan amount sought, and any other |
| 33 | information deemed necessary by the loan originator. An |
| 34 | application may be in writing or electronically submitted, |
| 35 | including a written record of an oral application. |
| 36 | Section 2. Subsection (6) is added to section 494.0068, |
| 37 | Florida Statutes, to read: |
| 38 | 494.0068 Loan application process.- |
| 39 | (6)(a) A mortgage loan application may be in writing or |
| 40 | electronically submitted, including a written record of an oral |
| 41 | application. |
| 42 | (b) The application shall include an area where the loan |
| 43 | originator and the borrower certify the accuracy of the |
| 44 | application along with a legible fingerprint of the loan |
| 45 | originator and the borrower. |
| 46 | (c) If the application is a written record of an oral |
| 47 | application to a mortgage lender, then the mortgage lender shall |
| 48 | inform the borrower that the oral application will be audio |
| 49 | recorded and shall record the oral application. |
| 50 | (d) If the primary language of the borrower is Spanish, |
| 51 | the application, made either in writing or orally, shall be |
| 52 | completed using the uniform residential loan application of the |
| 53 | Federal National Mortgage Association, Form 1003s or a successor |
| 54 | form, or the Federal Home Loan Mortgage Corporation, Form 65s or |
| 55 | a successor form. |
| 56 | Section 3. Section 817.545, Florida Statutes, is amended |
| 57 | to read: |
| 58 | 817.545 Mortgage fraud.- |
| 59 | (1) For the purposes of the section, the term "mortgage |
| 60 | lending process" means the process through which a person seeks |
| 61 | or obtains a residential mortgage loan, including, but not |
| 62 | limited to, the solicitation, application or origination, |
| 63 | negotiation of terms, third-party provider services, |
| 64 | underwriting, signing and closing, and funding of the loan. |
| 65 | Documents involved in the mortgage lending process include, but |
| 66 | are not limited to, mortgages, deeds, surveys, inspection |
| 67 | reports, uniform residential loan applications, or other loan |
| 68 | applications; appraisal reports; HUD-1 settlement statements; |
| 69 | supporting personal documentation for loan applications such as |
| 70 | W-2 forms, verifications of income and employment, credit |
| 71 | reports, bank statements, tax returns, and payroll stubs; and |
| 72 | any required disclosures. |
| 73 | (2) A person commits the offense of mortgage fraud if, |
| 74 | with the intent to defraud, the person knowingly: |
| 75 | (a) Makes any material misstatement, misrepresentation, or |
| 76 | omission during the mortgage lending process with the intention |
| 77 | that the misstatement, misrepresentation, or omission will be |
| 78 | relied on by a mortgage lender, borrower, or any other person or |
| 79 | entity involved in the mortgage lending process; however, |
| 80 | omissions on a loan application regarding employment, income, or |
| 81 | assets for a loan which does not require this information are |
| 82 | not considered a material omission for purposes of this |
| 83 | subsection. |
| 84 | (b) Uses or facilitates the use of any material |
| 85 | misstatement, misrepresentation, or omission during the mortgage |
| 86 | lending process with the intention that the material |
| 87 | misstatement, misrepresentation, or omission will be relied on |
| 88 | by a mortgage lender, borrower, or any other person or entity |
| 89 | involved in the mortgage lending process; however, omissions on |
| 90 | a loan application regarding employment, income, or assets for a |
| 91 | loan which does not require this information are not considered |
| 92 | a material omission for purposes of this subsection. |
| 93 | (c) Receives any proceeds or any other funds in connection |
| 94 | with the mortgage lending process that the person knew resulted |
| 95 | from a violation of paragraph (a) or paragraph (b). |
| 96 | (d) Files or causes to be filed with the clerk of the |
| 97 | circuit court for any county of this state a document involved |
| 98 | in the mortgage lending process which contains a material |
| 99 | misstatement, misrepresentation, or omission. |
| 100 | (3) An offense of mortgage fraud may not be predicated |
| 101 | solely upon information lawfully disclosed under federal |
| 102 | disclosure laws, regulations, or interpretations related to the |
| 103 | mortgage lending process. |
| 104 | (4) For the purpose of venue under this section, any |
| 105 | violation of this section is considered to have been committed: |
| 106 | (a) In the county in which the real property is located; |
| 107 | or |
| 108 | (b) In any county in which a material act was performed in |
| 109 | furtherance of the violation. |
| 110 | (5)(a) Any person who violates subsection (2), and the |
| 111 | loan value stated on documents used in the mortgage lending |
| 112 | process is: |
| 113 | (a) Less than $20,000, commits a felony of the third |
| 114 | degree, punishable as provided in s. 775.082, s. 775.083, or s. |
| 115 | 775.084. |
| 116 | (b) Equal to or more than $20,000 but less than Any person |
| 117 | who violates subsection (2), and the loan value stated on |
| 118 | documents used in the mortgage lending process exceeds $100,000, |
| 119 | commits a felony of the second degree, punishable as provided in |
| 120 | s. 775.082, s. 775.083, or s. 775.084. |
| 121 | (c) Equal to or more than $100,000, commits a felony of |
| 122 | the first degree, punishable as provided in s. 775.082, s. |
| 123 | 775.083, or s. 775.084. |
| 124 | (6)(a) Notwithstanding any other provision of law, a |
| 125 | prosecution under this section may be commenced at any time |
| 126 | within 5 years after the offense is committed. However, this |
| 127 | time period may be extended for 1 year after discovery of the |
| 128 | offense by an aggrieved party or by a person who has a legal |
| 129 | duty to represent an aggrieved party and who is himself or |
| 130 | herself not a party to the offense. In no case may this |
| 131 | paragraph extend the period of limitation by more than 3 years |
| 132 | beyond what is otherwise provided by law. |
| 133 | (b) The period of limitation does not run during any time |
| 134 | when the defendant is continuously absent from the state or is |
| 135 | without a reasonably ascertainable place of abode or work within |
| 136 | the state, but this shall not extend the period of limitation |
| 137 | otherwise applicable by more than 1 year. This paragraph does |
| 138 | not limit the prosecution of a defendant who has been timely |
| 139 | charged by indictment or information or other charging document |
| 140 | and who has not been arrested due to his or her absence from |
| 141 | this state or has not been extradited for prosecution from |
| 142 | another state. |
| 143 | Section 4. This act shall take effect October 1, 2012. |