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