HB 835

1	A bill to be entitled
2	An act relating to mortgage rescue fraud; providing a
3	short title; providing legislative findings and
4	declarations; providing intent and purposes; providing
5	definitions; providing requirements for foreclosure
6	consultant contracts; providing requirements for notices
7	of cancellation; providing for rescission of foreclosure
8	consultant contracts; providing requirements for
9	foreclosure conveyance contracts; providing for contract
10	terms; providing requirements for cancellation of
11	foreclosure conveyance contracts; providing requirements
12	for notices of cancellation; providing for
13	unenforceability of waivers of provisions of the act;
14	providing exceptions; specifying prohibited activities for
15	foreclosure consultants and foreclosure purchasers;
16	specifying required activities for foreclosure purchasers;
17	providing a definition; specifying certain violations as
18	unlawful practices; providing for remedies under the
19	Florida Deceptive and Unfair Trade Practices Act;
20	providing for judgments for damages, attorney fees and
21	costs, and equitable relief; providing for awards of
22	damages; providing limitations on certain actions;
23	specifying the offense of criminal mortgage rescue fraud;
24	providing criminal penalties; providing for limiting
25	contract provisions requiring arbitration; providing for
26	application; providing severability; providing an
27	effective date.
28
29	Be It Enacted by the Legislature of the State of Florida:
30
31	Section 1.  Short title.--This act may be cited as the
32	"Mortgage Rescue Fraud Act."
33	Section 2.  Legislative findings; declarations; intent and
34	purposes.--
35	(1)  The Legislature finds and declares that homeowners who
36	are in default on their mortgages, in foreclosure, or at risk of
37	losing their homes due to nonpayment of taxes may be vulnerable
38	to fraud, deception, and unfair dealing by foreclosure
39	consultants or foreclosure purchasers. The rapid escalation of
40	home values throughout the state has resulted in a significant
41	increase in home equity, which constitutes the greatest
42	financial asset held by many homeowners of this state. The
43	recent increase in interest rates and property taxes throughout
44	the state has placed a financial burden on homeowners and
45	resulted in this state's having one of the highest foreclosure
46	rates in the country. During the time period between the default
47	on the mortgage and the scheduled foreclosure sale date,
48	homeowners in financial distress, especially poor, elderly, and
49	financially unsophisticated homeowners, are vulnerable to
50	aggressive foreclosure consultants and foreclosure purchasers
51	who induce homeowners to sell their homes for a fraction of
52	their fair market values, or in some cases even sign away their
53	homes, through the use of schemes that often involve oral and
54	written misrepresentations, deceit, intimidation, and other
55	unreasonable commercial practices.
56	(2)  The Legislature declares that it is the express policy
57	of this state to preserve and guard the social and economic
58	value of homeownership.
59	(3)  The intent and purposes of this section are to provide
60	the owner of a residence at risk of loss with information
61	necessary to make an informed and intelligent decision regarding
62	any transaction with a foreclosure consultant or foreclosure
63	purchaser; to require that the agreement be expressed in
64	writing; to safeguard homeowners against deceit and financial
65	hardship; to ensure, foster, and encourage fair dealing in
66	consultation and the sale and purchase of residences at risk of
67	loss; to prohibit representations that tend to mislead; to
68	prohibit or restrict unfair contract terms; to provide a
69	cooling-off period for homeowners who enter into covered
70	contracts; to afford homeowners a reasonable and meaningful
71	opportunity to rescind sales to foreclosure purchasers; and to
72	preserve and protect home equity for the homeowners of this
73	state.
74	Section 3.  Definitions.--For purposes of this act:
75	(1)(a)  "Foreclosure consultant" means any person who,
76	directly or indirectly, makes any solicitation, representation,
77	or offer to any owner to perform for compensation, or who
78	performs for compensation, any service that the person
79	represents will in any manner accomplish any of the following:
80	1.  Stop or postpone the foreclosure sale or the loss of
81	the home due to nonpayment of taxes;
82	2.  Obtain any forbearance from any beneficiary or
83	mortgagee or relief with respect to a tax sale of the property;
84	3.  Assist the owner in exercising any right of
85	reinstatement or right of redemption;
86	4.  Obtain any extension of the period within which the
87	owner may reinstate the owner's rights with respect to the
88	property;
89	5.  Obtain any waiver of an acceleration clause contained
90	in any promissory note or contract secured by a mortgage on a
91	residence at risk of loss or contained in the mortgage;
92	6.  Assist the owner during a foreclosure or loan default
93	or a tax certificate redemption period in obtaining a loan or
94	advance of funds;
95	7.  Avoid or ameliorate the impairment of the owner's
96	credit resulting from the filing of a foreclosure or the conduct
97	of a foreclosure sale or tax sale; or
98	8.  Save the owner's residence from foreclosure or loss
99	due to nonpayment of taxes.
100	(b)  The term "foreclosure consultant" does not include:
101	1.  A person licensed to practice law in this state when
102	the person renders service in the course of his or her practice
103	as an attorney-at-law.
104	2.  A person licensed as a real estate broker or sales
105	associate under s. 475.181, Florida Statutes, when the person
106	engages in acts the performance of which requires licensure
107	under chapter 475, Florida Statutes, unless the person is
108	engaged in offering services designed to, or purportedly
109	designed to, enable the owner to retain possession of the
110	residence in foreclosure.
111	3.  A person licensed as a residential mortgage broker
112	under s. 494.0031, Florida Statutes, or mortgage lender under s.
113	494.0061, Florida Statutes, when acting under the authority of
114	that license.
115	4.  A person or the person's authorized agent acting under
116	the express authority or written approval of the United States
117	Department of Housing and Urban Development.
118	5.  A person who holds or is owed an obligation secured by
119	a lien on any residence at risk of loss when the person performs
120	services in connection with such obligation or lien if the
121	obligation or lien did not arise as the result of or part of a
122	conveyance of the proposed residence at risk of loss.
123	6.  Banks, savings banks, savings and loan associations,
124	and credit unions organized, chartered, or holding a certificate
125	of authority to do business under the laws of this state or the
126	United States.
127	7.  Mortgagees approved by the United States Department of
128	Housing and Urban Development, any subsidiary or affiliate of
129	such persons or entities, and any agent or employee of such
130	persons or entities while engaged in the business of such
131	persons or entities.
132	8.  An agency or organization meeting the qualifications
133	of s. 501(c)(3) of the United States Internal Revenue Code and
134	doing business for not less than 5 years that offers counseling
135	or advice to an owner of a residence at risk of loss if such
136	owner does not contract for services with a for-profit lender or
137	foreclosure purchaser or any person who structures or plans such
138	contractual transactions.
139	9.  A judgment creditor of the owner, to the extent the
140	judgment creditor's claim accrued prior to the recording of the
141	lis pendens pursuant to s. 48.23, Florida Statutes, but
142	excluding a person who purchased the claim after such recording.
143	10.  A foreclosure purchaser.
144	(2)  "Foreclosure conveyance" means a transaction in which
145	an owner of a residence at risk of loss transfers an interest in
146	fee in the property, the acquirer of the property allows the
147	owner of the property to occupy the property, and the acquirer
148	of the property or a person acting in participation with the
149	acquirer of the property conveys or promises to convey an
150	interest in fee back to the owner or gives the owner an option
151	to purchase the property at a later date.
152	(3)  "Foreclosure purchaser" means any person who acquires
153	any interest in fee in a residence at risk of loss while
154	allowing the owner to possess, occupy, or retain any present or
155	future interest in fee in the property or any person who
156	participates in a joint venture or joint enterprise involving a
157	foreclosure conveyance.
158	(4)  "Owner" means the record owner of the residential
159	real property in foreclosure at the time a notice of lis pendens
160	was recorded or a summons and complaint was served or, when
161	applicable, at the time the loan on the residential real
162	property is more than 90 days delinquent or the owner of the
163	residential real property is subject to loss of ownership due to
164	nonpayment of taxes.
165	(5)  "Person" means any individual, partnership,
166	corporation, limited liability company, association, or other
167	group, however organized.
168	(6)  "Resale" means a bona fide market sale of property
169	subject to a foreclosure conveyance by a foreclosure purchaser
170	to an unaffiliated third party.
171	(7)  "Resale price" means the gross sale price of a
172	property for resale.
173	(8)  "Residence at risk of loss" means:
174	(a)  Residential real property consisting of one to six
175	family dwelling units, including condominiums, against which
176	there is an outstanding notice of pendency of foreclosure
177	recorded pursuant to s. 48.23, Florida Statutes, or against
178	which a summons and complaint has been served under chapter 702,
179	Florida Statutes, or whose owner is more than 90 days delinquent
180	on any loan that is secured by the property; or
181	(b)  Residential real property consisting of one to six
182	family dwelling units, including condominiums, at risk of loss
183	of ownership due to nonpayment of taxes.
184	(9)  "Service" means and includes, but is not limited to:
185	(a)  Debt, budget, or financial counseling of any type;
186	(b)  Receiving money for the purpose of distributing such
187	money to creditors in payment or partial payment of any
188	obligation secured by a lien on a residence at risk of loss;
189	(c)  Contacting creditors on behalf of an owner of a
190	residence at risk of loss;
191	(d)  Arranging or attempting to arrange for an extension
192	of the period within which the owner of a residence at risk of
193	loss may cure the owner's default and reinstate the mortgage or
194	redeem his or her obligation pursuant to s. 45.0315, Florida
195	Statutes;
196	(e)  Arranging or attempting to arrange for any delay or
197	postponement of the time of sale of a residence at risk of loss;
198	(f)  Advising the filing of any document or assisting in
199	any manner in the preparation of any document for filing with
200	any bankruptcy court; or
201	(g)  Giving any advice, explanation, or instruction to an
202	owner of a residence at risk of loss that in any manner relates
203	to the cure of a default or forfeiture or to the postponement or
204	avoidance of sale of a residence at risk of loss.
205	Section 4.  Foreclosure consultant contract requirements.--
206	(1)  A foreclosure consultant contract must be in writing;
207	must fully disclose, clearly and conspicuously, the exact nature
208	of the foreclosure consultant's services and the total amount
209	and terms of compensation; and must include:
210	(a)  An accurate description of the goods or services
211	offered and to be provided by the foreclosure consultant.
212	(b)  An accurate description of how the foreclosure
213	consultant will assist persons in avoiding or delaying
214	foreclosure or curing or otherwise addressing a default.
215	(2)  The following notice, in at least 14-point boldfaced
216	type if the contract is printed, or in capital letters if the
217	contract is typed, must be displayed immediately above the
218	statement required by subsection (3):
219
220	NOTICE REQUIRED BY FLORIDA LAW
221
222	...(Name of foreclosure consultant)... or anyone
223	working for him or her CANNOT:
224	(1)  Take any money from you or ask you for money
225	until ...(name of foreclosure consultant)... has
226	completely finished doing everything he or she said he
227	or she would do; or
228	(2)  Ask you to sign or have you sign any lien,
229	mortgage, or deed.
230
231	(3)  The foreclosure consultant contract must be written in
232	the same language as principally used by the foreclosure
233	consultant to describe his or her services or to negotiate the
234	contract, must be dated and signed by the owner of the residence
235	at risk of loss, and must contain, in immediate proximity to the
236	space reserved for the owner's signature, the following
237	conspicuous statement in a size equal to at least 14-point
238	boldfaced type if the contract is printed, or in capital letters
239	if the contract is typed:
240
241	You, the owner, may cancel this transaction at any
242	time until after the foreclosure consultant has fully
243	performed each and every service the foreclosure
244	consultant contracted to perform or represented he or
245	she would perform. See the attached notice of
246	cancellation form for an explanation of this right.
247
248	(4)  The foreclosure consultant contract and notice of
249	cancellation must contain on the first page, in a type size no
250	smaller than that generally used in the body of the document,
251	each of the following:
252	(a)  The name and address of the foreclosure consultant to
253	whom the notice of cancellation is to be mailed or otherwise
254	delivered. A post office box must be accompanied by a physical
255	address at which the notice could be delivered by a method other
256	than mail.
257	(b)  The date the owner signed the contract.
258	(5)  The foreclosure consultant contract must be
259	accompanied by a completed form in duplicate, captioned "Notice
260	of Cancellation," which must be attached to the contract, must
261	be easily detachable, and must contain in at least 14-point
262	boldfaced type if the contract is printed, or in capital letters
263	if the contract is typed, the following statement written in the
264	same language as that used in the contract:
265
266	NOTICE OF CANCELLATION
267
268	...(Enter date of transaction) (Date)...
269
270	You may cancel this transaction, without any penalty
271	or obligation, at any time until after the foreclosure
272	consultant has fully performed each and every service
273	the foreclosure consultant contracted to perform or
274	represented he or she would perform.
275
276	To cancel this transaction, mail or deliver a signed
277	and dated copy of this cancellation notice, or any
278	other written notice, to:
279
280	...(Name of foreclosure consultant)...
281	...(Address of foreclosure consultant's place of
282	business)...
283
284	I hereby cancel this transaction.
285	...(Date)...
286	...(Owner's signature)...
287
288	(6)  The foreclosure consultant shall provide the owner
289	with a copy of the contract and the attached notice of
290	cancellation immediately upon execution of the contract.
291	(7)  If the foreclosure consultant contract fails to
292	substantially comply with the provisions of this section, the
293	contract is void and unenforceable and any documents signed by
294	the owner pursuant to the contract are null and void.
295	Section 5.  Rescission of foreclosure consultant
296	contracts.--
297	(1)  In addition to any other right under law to rescind a
298	contract, an owner has the right to cancel a foreclosure
299	consultant contract at any time until after the foreclosure
300	consultant has fully performed each service the foreclosure
301	consultant contracted to perform or represented he or she would
302	perform.
303	(2)  Cancellation occurs when the owner gives written
304	notice of cancellation to the foreclosure consultant at the
305	address specified in the foreclosure consultant contract.
306	(3)  Notice of cancellation, if given by mail, is effective
307	when deposited in the mail properly addressed with postage
308	prepaid.
309	(4)  Notice of cancellation given by the owner need not
310	take the particular form as provided with the foreclosure
311	consultant contract and, however expressed, is effective if the
312	notice indicates the intention of the owner not to be bound by
313	the contract.
314	Section 6.  Foreclosure conveyance contract
315	requirements.--A foreclosure purchaser shall enter into a
316	foreclosure conveyance in the form of a written contract. Every
317	contract must be written in letters of a size equal to at least
318	14-point boldfaced type, or in capital letters if the contract
319	is typed, in the same language principally used by the owner to
320	negotiate the sale of the residence at risk of loss; must be
321	fully completed, signed, and dated by the owner of the residence
322	at risk of loss and the foreclosure purchaser; and must be
323	witnessed and acknowledged by a notary public before the
324	execution of any instrument of conveyance of the residence at
325	risk of loss. If the contract fails to substantially comply with
326	this section and section 7, the contract is void and
327	unenforceable and any documents signed by the owner pursuant to
328	the contract are null and void.
329	Section 7.  Foreclosure conveyance contract terms.--Each
330	contract required by section 6 must contain the entire agreement
331	of the parties and must include:
332	(1)  The name, business address, and telephone number of
333	the foreclosure purchaser.
334	(2)  The address of the residence at risk of loss.
335	(3)  The total consideration to be given by the foreclosure
336	purchaser or tax lien payor in connection with or incident to
337	the sale.
338	(4)  A complete description of the terms of payment or
339	other consideration, including, but not limited to, any services
340	of any nature that the foreclosure purchaser represents he or
341	she will perform for the owner of the residence at risk of loss
342	before or after the sale.
343	(5)  The time at which possession is to be transferred to
344	the foreclosure purchaser.
345	(6)  A complete description of the terms of any related
346	agreement designed to allow the owner of the residence at risk
347	of loss to remain in the residence, such as a rental agreement,
348	repurchase agreement, contract for deed, or lease with option to
349	buy.
350	(7)  A notice of cancellation as provided in subsection (2)
351	of section 9.
352	(8)  The following notice in at least 14-point boldfaced
353	type if the contract is printed, or in capital letters if the
354	contract is typed, and completed with the name of the
355	foreclosure purchaser, immediately above the statement required
356	by subsection (1) of section 9:
357
358	NOTICE REQUIRED BY FLORIDA LAW
359
360	Until your right to cancel this contract has ended,
361	...(name of foreclosure purchaser)... or anyone
362	working for ...(name of foreclosure purchaser)...
363	CANNOT ask you to sign or have you sign any deed or
364	other document. You are urged to have this contract
365	reviewed by an attorney of your choice within 5
366	business days after signing it.
367
368	(9)  If title to the residence at risk of loss will be
369	transferred in the conveyance transaction, the following notice
370	in at least 14-point boldfaced type if the contract is printed,
371	or in capital letters if the contract is typed, and completed
372	with the name of the foreclosure purchaser, immediately above
373	the statement required by this section:
374
375	NOTICE REQUIRED BY FLORIDA LAW
376
377	As part of this transaction, you are giving up title
378	to your home.
379
380	The contract required by this section survives delivery of any
381	instrument of conveyance of the residence in foreclosure and has
382	no effect on persons other than the parties to the contract.
383	Section 8.  Cancellation of foreclosure conveyance
384	contracts.--
385	(1)  In addition to any other right of rescission, the
386	owner of a residence at risk of loss has the right to cancel any
387	contract with a foreclosure purchaser until midnight of the 5th
388	business day following the day on which the owner of the
389	residence at risk of loss signs a contract that complies with
390	this act or until 8:00 a.m. on the last day of the period during
391	which the owner of the residence at risk of loss has a right of
392	redemption under s. 45.0315, Florida Statutes, or s. 197.472,
393	Florida Statutes, whichever occurs first.
394	(2)  Cancellation occurs when the owner of the residence at
395	risk of loss delivers, by any means, written notice of
396	cancellation to the address specified in the foreclosure
397	conveyance contract.
398	(3)  A notice of cancellation given by the owner of the
399	residence at risk of loss need not take the particular form as
400	provided with the foreclosure conveyance contract.
401	(4)  Within 10 days following receipt of a notice of
402	cancellation given in accordance with this section, the
403	foreclosure purchaser shall return without condition any
404	original contract and any other documents signed by the owner of
405	the residence at risk of loss.
406	Section 9.  Notice of cancellation of foreclosure
407	conveyance contract.--
408	(1)  The contract must contain, in immediate proximity to
409	the space reserved for the signature of the owner of the
410	residence at risk of loss, a conspicuous statement in a size
411	equal to at least 14-point boldfaced type if the contract is
412	printed, or in capital letters if the contract is typed, as
413	follows:
414
415	You may cancel this contract for the sale of your
416	house without any penalty or obligation at any time
417	before ...(date and time).... See the attached notice
418	of cancellation form for an explanation of this right.
419
420	The foreclosure purchaser shall accurately enter the date and
421	time of day on which the cancellation right ends.
422	(2)  The contract must be accompanied by a completed form
423	in duplicate, captioned "Notice of Cancellation" in a size equal
424	to a 14-point boldfaced type if the contract is printed, or in
425	capital letters if the contract is typed, followed by a space in
426	which the foreclosure purchaser shall enter the date on which
427	the owner of the residence at risk of loss executes any
428	contract. This form must be attached to the contract, must be
429	easily detachable, and must contain in type of at least 14-point
430	boldfaced type if the contract is printed, or in capital letters
431	if the contract is typed, the following statement written in the
432	same language as that used in the contract:
433
434	NOTICE OF CANCELLATION
435
436	...(Date contract signed)...
437
438	You may cancel this contract for the sale of your
439	house, without any penalty or obligation, at any time
440	before ...(date and time).... To cancel this
441	transaction, mail or deliver a signed and dated copy
442	of this cancellation notice to ...(name of foreclosure
443	purchaser)... at ...(street address of foreclosure
444	purchaser's place of business)... NOT LATER THAN
445	...(date and time)....
446
447	I hereby cancel this transaction.
448	...(Date)...
449	...(Owner's signature)...
450
451	(3)  The foreclosure purchaser shall provide the owner of
452	the residence at risk of loss with a copy of the contract and
453	the attached notice of cancellation at the time the contract is
454	executed by all parties.
455	(4)  The 5 business days during which the owner of the
456	residence at risk of loss may cancel the contract shall not
457	begin to run until all parties to the contract have executed the
458	contract and the foreclosure purchaser has complied with this
459	section.
460	Section 10.  Waiver.--Any waiver of the provisions this act
461	by an owner of a residence at risk of loss is void and
462	unenforceable as contrary to public policy, except that such an
463	owner may waive the 5-business-day right to cancel provided in
464	section 8 if the property is subject to a foreclosure sale
465	within the 5-business-day period, and the owner agrees to waive
466	his or her right to cancel in a handwritten statement signed by
467	all parties holding title to the residence at risk of loss.
468	Section 11.  Prohibited activities.--
469	(1)  A foreclosure consultant may not:
470	(a)  Claim, demand, charge, collect, or receive any
471	compensation until after the foreclosure consultant has fully
472	performed every service the foreclosure consultant contracted to
473	perform or represented he or she would perform;
474	(b)  Claim, demand, charge, collect, or receive for any
475	reason any fee, interest, or other compensation that exceeds two
476	monthly mortgage payments of principal and interest or the most
477	recent tax installment on the residence at risk of loss,
478	whichever is less;
479	(c)  Take any wage assignment, a lien of any type on real
480	or personal property, or any other security to secure the
481	payment of compensation. Any such security is void and
482	unenforceable;
483	(d)  Receive any consideration from any third party in
484	connection with services rendered to an owner of a residence at
485	risk of loss unless the consideration is first fully disclosed
486	to the owner;
487	(e)  Acquire any interest, directly or indirectly or by
488	means of a subsidiary or affiliate, in a residence at risk of
489	loss from an owner of the residence with whom the foreclosure
490	consultant has contracted;
491	(f)  Take any power of attorney from an owner for any
492	purpose, except to inspect documents as provided by law; or
493	(g)  Induce or attempt to induce any owner to enter into a
494	contract that does not comply in all respects with this act.
495	(2)  A foreclosure purchaser, in the course of a conveyance
496	of a residence at risk of loss, may not:
497	(a)  Enter into, or attempt to enter into, a foreclosure
498	conveyance with an owner of a residence at risk of loss unless:
499	1.  The foreclosure purchaser verifies and can demonstrate
500	that the owner of the residence at risk of loss has a reasonable
501	ability to pay for the subsequent conveyance of an interest back
502	to the owner and to make monthly or any other payments due prior
503	to that time. In the case of a lease with an option to purchase,
504	payment ability also includes the reasonable ability to purchase
505	the property within the term of the option to purchase. There is
506	a rebuttable presumption that the foreclosure purchaser has not
507	verified reasonable payment ability if the foreclosure purchaser
508	has not obtained documents other than a statement by the owner
509	of assets, liabilities, and income.
510	2.  The foreclosure purchaser and the owner of the
511	residence at risk of loss complete a closing for any foreclosure
512	conveyance in which the foreclosure purchaser obtains a deed or
513	mortgage from an owner. For purposes of this section, "closing"
514	means an in-person meeting to complete final documents incident
515	to the sale of the real property or creation of a mortgage on
516	the real property conducted by a person who is not employed by
517	or an affiliate of the foreclosure purchaser.
518	3.  The foreclosure purchaser obtains the written consent
519	of the owner of the residence at risk of loss to a grant by the
520	foreclosure purchaser of any interest in the property during
521	such times as the owner maintains any interest in the property.
522	4.  The foreclosure purchaser complies with the
523	requirements for disclosure, loan terms, and conduct in the
524	federal Home Ownership Equity Protection Act, 15 U.S.C. s. 1639,
525	or its implementing regulation, 12 C.F.R. ss. 226.31, 226.32,
526	and 226.34, for any foreclosure conveyance in which the owner of
527	a residence at risk of loss obtains a vendee interest in a
528	contract for deed, regardless of whether the terms of the
529	contract for deed meet the annual percentage rate or points and
530	fees requirements for a covered loan in 12 C.F.R. s. 226.32(a)
531	and (b);
532	(b)  Fail to:
533	1.  Ensure that title to the subject dwelling has been
534	conveyed to the owner of the residence at risk of loss;
535	2.  Make a payment to the owner of the residence at risk of
536	loss such that the owner has received consideration in an amount
537	of at least 82 percent of the fair market value of the property
538	within 150 days after the eviction or voluntary relinquishment
539	of possession of the dwelling by the owner. The foreclosure
540	purchaser shall make a detailed accounting of the basis for the
541	payment amount, or a detailed accounting of the reasons for
542	failure to make a payment, including providing written
543	documentation of expenses, within such 150-day period. The
544	accounting with documentation attached shall be provided to the
545	owner of the residence at risk of loss when payment is made. For
546	purposes of this subparagraph, the following apply:
547	a.  There is a rebuttable presumption that an appraisal by
548	a person licensed or certified by an agency of the Federal
549	Government or this state to appraise real estate constitutes the
550	fair market value of the property.
551	b.  The time for determining the fair market value shall be
552	determined in the foreclosure conveyance contract at the time of
553	the execution of the foreclosure conveyance contract or at
554	resale. If the contract states that the fair market value shall
555	be determined at the time of resale, the fair market value shall
556	be the resale price if the property is sold within 120 days
557	after the eviction or voluntary relinquishment of the property
558	by the owner. If the contract states that the fair market value
559	shall be determined at the time of resale and the resale is not
560	completed within 120 days after the eviction or voluntary
561	relinquishment of the property by the owner, the fair market
562	value shall be determined by an appraisal conducted during such
563	120-day period, and payment, if required, shall be made to the
564	owner of the residence at risk of loss. However:
565	(I)  The fair market value shall be recalculated as the
566	resale price on resale, and an additional payment amount, if
567	appropriate based on the resale price, shall be made to the
568	owner of the residence at risk of loss within 15 days after
569	resale; and
570	(II)  A detailed accounting of the basis for the payment
571	amount, or a detailed accounting of the reasons for failure to
572	make additional payment, shall be made within 15 days after
573	resale, including providing written documentation of expenses.
574	c.  The accounting shall be a separate document showing the
575	fair market value of the property at the time indicated in the
576	foreclosure conveyance contract; showing 82 percent of the fair
577	market value; specifying individually all consideration actually
578	paid; showing amounts and to whom paid; and providing the total
579	amount to be paid to the owner of the residence at risk of loss,
580	where appropriate.
581	d.(I)  For purposes of this subparagraph, the term
582	"consideration" means any payment or thing of value provided to
583	the owner of the residence at risk of loss, including unpaid
584	rent or contract for deed payments owed by the owner of the
585	residence at risk of loss prior to the date of eviction or
586	voluntary relinquishment of the property, reasonable costs paid
587	to third parties necessary to complete the foreclosure
588	conveyance transaction, payment of money to satisfy a debt or
589	legal obligation of the owner of the residence at risk of loss,
590	or the reasonable cost of repairs for damage to the dwelling
591	caused by the owner of the residence at risk of loss.
592	(II)  The term "consideration" does not include amounts
593	imputed as a down payment or fee to the foreclosure purchaser,
594	or a person acting in participation with the foreclosure
595	purchaser, incident to a contract for deed, lease, or option to
596	purchase entered into as part of the foreclosure conveyance,
597	except for reasonable costs paid to third parties necessary to
598	complete the foreclosure conveyance; or
599	3.  Enter into repurchase or lease terms as part of the
600	subsequent conveyance that are unfair or commercially
601	unreasonable, or engage in any other unfair or unconscionable
602	conduct;
603	(c)  Represent, directly or indirectly, that:
604	1.  The foreclosure purchaser is acting as an advisor or a
605	consultant or in any other manner represent that the foreclosure
606	purchaser is acting on behalf of the owner of the residence at
607	risk of loss;
608	2.  The foreclosure purchaser possesses certification,
609	registration, or licensure that the foreclosure purchaser does
610	not possess;
611	3.  The foreclosure purchaser is not a member of a licensed
612	profession, if that is untrue; or
613	4.  The foreclosure purchaser is assisting the owner of the
614	residence at risk of loss in "saving the house," or a
615	substantially similar phrase, if the result of the transaction
616	will be that the owner of the residence at risk of loss does not
617	complete a redemption of the property;
618	(d)  Engage in any other conduct or make any other
619	statements, directly or by implication, that are false,
620	deceptive, or misleading or that are likely to cause confusion
621	or misunderstanding, including, but not limited to, statements
622	regarding the value of the residence at risk of loss, the amount
623	of proceeds the owner of the residence at risk of loss will
624	receive after a foreclosure sale, any contract term, or the
625	rights or obligations of the owner of the residence at risk of
626	loss incident to or arising out of the foreclosure conveyance;
627	or
628	(e)  Do any of the following until the period during which
629	the owner of the residence at risk of loss may cancel the
630	transaction has fully expired:
631	1.  Accept from the owner of the residence at risk of loss
632	an execution of, or induce the owner of the residence at risk of
633	loss to execute, any instrument of conveyance of any interest in
634	the residence at risk of loss;
635	2.  Record in the public records maintained by the clerk of
636	the court in the county or counties in which the real property
637	is located any document, including, but not limited to, any
638	instrument of conveyance, signed by the owner of the residence
639	at risk of loss;
640	3.  Transfer or encumber, or purport to transfer or
641	encumber, any interest in the residence at risk of loss to any
642	third party. A grant of any interest or encumbrance is not
643	defeated or affected as against a bona fide purchaser or
644	encumbrance for value and without notice of a violation of this
645	act. Knowledge on the part of any such person or entity that the
646	property was residential real property in foreclosure does not
647	constitute a notice of a violation of this act. This section
648	does not abrogate any duty of inquiry that exists as to rights
649	or interests of persons in possession of the residential real
650	property in foreclosure; or
651	4.  Pay any consideration to the owner of the residence at
652	risk of loss.
653	Section 12.  Civil remedies.--
654	(1)  A violation of this act constitutes an unlawful
655	practice under the Florida Deceptive and Unfair Trade Practices
656	Act, and all remedies under that act are available for an action
657	under that act. An owner of a residence at risk of loss may
658	bring an action against a foreclosure consultant or foreclosure
659	purchaser for any violation of this act. Judgment must be
660	entered for actual damages, reasonable attorney fees and costs,
661	and appropriate equitable relief, including, but not limited to,
662	the rescission of any deed, mortgage, or other instrument signed
663	by the owner or foreclosure purchaser. The rights and remedies
664	provided in this act are cumulative with, and not a limitation
665	of, any other rights and remedies provided by law. Any action
666	brought pursuant to this section must be commenced within 4
667	years from the date of the alleged violation.
668	(2)  In addition to any other damages available to an owner
669	of a residence at risk of loss:
670	(a)  For a violation of paragraph (1)(a), paragraph (1)(b),
671	or paragraph (1)(d) of section 11, the court may award damages
672	up to one and one-half times the compensation charged by the
673	foreclosure consultant if the court finds that the foreclosure
674	consultant's conduct was in bad faith.
675	(b)  For a violation of the provisions of subsection (2) of
676	section 11, the court may award damages no less than one and
677	one-half times the actual damages.
678	(3)  Notwithstanding any other provision of this section,
679	no action may be brought on the basis of a violation of this act
680	except by an owner against whom the violation was committed or
681	by the attorney general.
682	Section 13.  Criminal mortgage rescue fraud; penalties.--A
683	person commits the offense of criminal mortgage rescue fraud
684	when he or she intentionally violates any provision of section
685	11. A person who engages in any activity that constitutes
686	criminal mortgage rescue fraud commits a felony of the third
687	degree, punishable as provided in s. 775.082, s. 775.083, or s.
688	775.084, Florida Statutes.
689	Section 14.  Liability.--
690	(1)  Any provision in a contract that attempts or purports
691	to require arbitration of any dispute arising under this act is
692	void at the option of the owner.
693	(2)  This section applies to any foreclosure consultant
694	contract or foreclosure conveyance contract entered into on or
695	after October 1, 2008.
696	Section 15.  Severability.--If any provision of this act or
697	its application to any person or circumstance is held invalid,
698	the invalidity does not affect other provisions or applications
699	of the act which can be given effect without the invalid
700	provision or application, and to this end the provisions of this
701	act are declared severable.
702	Section 16.  This act shall take effect October 1, 2008.

CODING: Words stricken are deletions; words underlined are additions.