| 1 | A bill to be entitled |
| 2 | An act relating to loan processing; amending s. 494.001, |
| 3 | F.S.; creating and revising definitions; deleting a |
| 4 | redundant definition; amending s. 494.0011, F.S.; |
| 5 | specifying rulemaking powers of the Financial Services |
| 6 | Commission; amending s. 494.00255, F.S.; including in- |
| 7 | house loan processors in disciplinary provisions; amending |
| 8 | s. 494.00331, F.S.; providing that specified provisions do |
| 9 | not apply to a licensed contract loan processor who has on |
| 10 | file with the office a declaration of intent to act solely |
| 11 | as a contract loan processor; deleting a definition; |
| 12 | providing restrictions on employment of persons acting as |
| 13 | in-house loan processors; amending s. 494.0035, F.S.; |
| 14 | clarifying provisions concerning operation of mortgage |
| 15 | brokers; amending s. 494.0038, F.S.; revising provisions |
| 16 | relating to disclosure of settlement charges and loan |
| 17 | terms; amending s. 494.00421, F.S.; revising an agency |
| 18 | reference in the mortgage broker agreement; providing that |
| 19 | a borrower may contact the Office of Financial Regulation |
| 20 | rather than the Department of Financial Services regarding |
| 21 | any complaints against a loan originator; amending s. |
| 22 | 494.00612, F.S.; requiring that in order to renew a |
| 23 | mortgage lender license a mortgage lender must authorize |
| 24 | the Nationwide Mortgage Licensing System and Registry to |
| 25 | obtain an independent credit report on each of the |
| 26 | mortgage lender's control persons; amending s. 494.0067, |
| 27 | F.S.; requiring each mortgage lender to submit certain |
| 28 | reports to the registry as may be required; providing an |
| 29 | effective date. |
| 30 |
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| 31 | Be It Enacted by the Legislature of the State of Florida: |
| 32 |
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| 33 | Section 1. Subsections (5) through (9), (10) through (14), |
| 34 | (15) through (24), and (26) through (34) of section 494.001, |
| 35 | Florida Statutes, are renumbered as subsections (6) through |
| 36 | (10), (12) through (16), (18) through (27), and (28) through |
| 37 | (36), respectively, new subsections (5), (11), and (17) are |
| 38 | added to that section, and present subsections (14), (25), and |
| 39 | (26) of that section are amended, to read: |
| 40 | 494.001 Definitions.-As used in ss. 494.001-494.0077, the |
| 41 | term: |
| 42 | (5) "Contract loan processor" means an individual who is |
| 43 | licensed under part II of this chapter as a loan originator, who |
| 44 | is an independent contractor for a mortgage broker or mortgage |
| 45 | lender, and who engages only in loan processing. |
| 46 | (11) "In-house loan processor" means an individual who is |
| 47 | an employee of a mortgage broker or a mortgage lender who |
| 48 | engages only in loan processing. |
| 49 | (16)(14) "Loan originator" means an individual who, |
| 50 | directly or indirectly, solicits or offers to solicit a mortgage |
| 51 | loan, accepts or offers to accept an application for a mortgage |
| 52 | loan, negotiates or offers to negotiate the terms or conditions |
| 53 | of a new or existing mortgage loan on behalf of a borrower or |
| 54 | lender, processes a mortgage loan application, or negotiates or |
| 55 | offers to negotiate the sale of an existing mortgage loan to a |
| 56 | noninstitutional investor for compensation or gain. The term |
| 57 | includes an individual who is required to be licensed as a loan |
| 58 | originator under the activities of a loan originator as that |
| 59 | term is defined in the S.A.F.E. Mortgage Licensing Act of 2008, |
| 60 | and an individual acting as a loan originator pursuant to that |
| 61 | definition is acting as a loan originator for purposes of this |
| 62 | definition. The term does not include an employee of a mortgage |
| 63 | broker or mortgage lender whose duties are limited to who |
| 64 | performs only administrative or clerical tasks, including |
| 65 | quoting available interest rates, physically handling a |
| 66 | completed application form, or transmitting a completed |
| 67 | application form to a lender on behalf of a prospective |
| 68 | borrower. |
| 69 | (17) "Loan processing" means: |
| 70 | (a) Receiving, collecting, distributing, and analyzing |
| 71 | information common for the processing of a mortgage loan; or |
| 72 | (b) Communicating with a consumer to obtain information |
| 73 | necessary for the processing of a mortgage loan if such |
| 74 | communication does not include offering or negotiating loan |
| 75 | rates or terms, or counseling consumers about residential |
| 76 | mortgage loan rates or terms. |
| 77 | (25) "Person" has the same meaning as in s. 1.01. |
| 78 | (28)(26) "Principal loan originator" means the licensed |
| 79 | loan originator in charge of, and responsible for, the operation |
| 80 | of a mortgage lender or mortgage broker, including all of the |
| 81 | activities of the mortgage lender's or mortgage broker's loan |
| 82 | originators, in-house loan processors, and branch managers, |
| 83 | whether employees or independent contractors. |
| 84 | Section 2. Subsection (2) of section 494.0011, Florida |
| 85 | Statutes, is amended to read: |
| 86 | 494.0011 Powers and duties of the commission and office.- |
| 87 | (2) To administer ss. 494.001-494.0077, The commission may |
| 88 | adopt rules to administer parts I, II, and III of this chapter, |
| 89 | including rules: |
| 90 | (a) Requiring electronic submission of any forms, |
| 91 | documents, or fees required by this act. |
| 92 | (b) Relating to compliance with the S.A.F.E. Mortgage |
| 93 | Licensing Act of 2008, including rules to: |
| 94 | 1. Require loan originators, mortgage brokers, mortgage |
| 95 | lenders, and branch offices to register through the registry. |
| 96 | 2. Require the use of uniform forms that have been |
| 97 | approved by the registry, and any subsequent amendments to such |
| 98 | forms if the forms are substantially in compliance with the |
| 99 | provisions of this chapter. Uniform forms that the commission |
| 100 | may adopt include, but are not limited to: |
| 101 | a. Uniform Mortgage Lender/Mortgage Broker Form, MU1. |
| 102 | b. Uniform Mortgage Biographical Statement & Consent Form, |
| 103 | MU2. |
| 104 | c. Uniform Mortgage Branch Office Form, MU3. |
| 105 | d. Uniform Individual Mortgage License/Registration & |
| 106 | Consent Form, MU4. |
| 107 | 3. Require the filing of forms, documents, and fees in |
| 108 | accordance with the requirements of the registry. |
| 109 | 4. Prescribe requirements for amending or surrendering a |
| 110 | license or other activities as the commission deems necessary |
| 111 | for the office's participation in the registry. |
| 112 | 5. Prescribe procedures that allow a licensee to challenge |
| 113 | information contained in the registry. |
| 114 | 6. Prescribe procedures for reporting violations of this |
| 115 | chapter and disciplinary actions on licensees to the registry. |
| 116 | (c) Establishing time periods during which a loan |
| 117 | originator, mortgage broker, or mortgage lender license |
| 118 | applicant under part II or part III is barred from licensure due |
| 119 | to prior criminal convictions of, or guilty or nolo contendere |
| 120 | pleas by, any of the applicant's control persons, regardless of |
| 121 | adjudication. |
| 122 | 1. The rules must provide: |
| 123 | a. Permanent bars for felonies involving fraud, |
| 124 | dishonesty, breach of trust, or money laundering; |
| 125 | b. A 15-year disqualifying period for felonies involving |
| 126 | moral turpitude; |
| 127 | c. A 7-year disqualifying period for all other felonies; |
| 128 | and |
| 129 | d. A 5-year disqualifying period for misdemeanors |
| 130 | involving fraud, dishonesty, or any other act of moral |
| 131 | turpitude. |
| 132 | 2. The rules may provide for an additional waiting period |
| 133 | due to dates of imprisonment or community supervision, the |
| 134 | commitment of multiple crimes, and other factors reasonably |
| 135 | related to the applicant's criminal history. |
| 136 | 3. The rules may provide for mitigating factors for crimes |
| 137 | identified in sub-subparagraph 1.b. However, the mitigation may |
| 138 | not result in a period of disqualification less than 7 years. |
| 139 | The rule may not mitigate the disqualifying periods in sub- |
| 140 | subparagraphs 1.a., 1.c., and 1.d. |
| 141 | 4. An applicant is not eligible for licensure until the |
| 142 | expiration of the disqualifying period set by rule. |
| 143 | 5. Section 112.011 is not applicable to eligibility for |
| 144 | licensure under this part. |
| 145 | Section 3. Subsections (3), (4), (5), and (6) of section |
| 146 | 494.00255, Florida Statutes, are amended, and paragraph (m) of |
| 147 | subsection (1) is reenacted, to read: |
| 148 | 494.00255 Administrative penalties and fines; license |
| 149 | violations.- |
| 150 | (1) Each of the following acts constitutes a ground for |
| 151 | which the disciplinary actions specified in subsection (2) may |
| 152 | be taken against a person licensed or required to be licensed |
| 153 | under part II or part III of this chapter: |
| 154 | (m) In any mortgage transaction, violating any provision |
| 155 | of the federal Real Estate Settlement Procedures Act, as |
| 156 | amended, 12 U.S.C. ss. 2601 et seq.; the federal Truth in |
| 157 | Lending Act, as amended, 15 U.S.C. ss. 1601 et seq.; or any |
| 158 | regulations adopted under such acts. |
| 159 | (3) A mortgage broker or mortgage lender, as applicable, |
| 160 | is subject to the disciplinary actions specified in subsection |
| 161 | (2) for a violation of subsection (1) by: |
| 162 | (a) A control person of the mortgage broker or mortgage |
| 163 | lender; or |
| 164 | (b) A loan originator employed by or contracting with the |
| 165 | mortgage broker or mortgage lender; or |
| 166 | (c) An in-house loan processor who is an employee of the |
| 167 | mortgage broker or mortgage lender. |
| 168 | (4) A principal loan originator of a mortgage broker is |
| 169 | subject to the disciplinary actions specified in subsection (2) |
| 170 | for violations of subsection (1) by a loan originator or an in- |
| 171 | house loan processor in the course of an association with the |
| 172 | mortgage broker if there is a pattern of repeated violations by |
| 173 | the loan originator or in-house loan processor or if the |
| 174 | principal loan originator has knowledge of the violations. |
| 175 | (5) A principal loan originator of a mortgage lender is |
| 176 | subject to the disciplinary actions specified in subsection (2) |
| 177 | for violations of subsection (1) by a loan originator or an in- |
| 178 | house loan processor in the course of an association with a |
| 179 | mortgage lender if there is a pattern of repeated violations by |
| 180 | the loan originator or in-house loan processor or if the |
| 181 | principal loan originator has knowledge of the violations. |
| 182 | (6) A branch manager is subject to the disciplinary |
| 183 | actions specified in subsection (2) for violations of subsection |
| 184 | (1) by a loan originator or an in-house loan processor in the |
| 185 | course of an association with the mortgage broker or mortgage |
| 186 | lender if there is a pattern of repeated violations by the loan |
| 187 | originator or in-house loan processor or if the branch manager |
| 188 | has knowledge of the violations. |
| 189 | Section 4. Section 494.00331, Florida Statutes, is amended |
| 190 | to read: |
| 191 | 494.00331 Loan originator and loan processor employment.- |
| 192 | (1) LOAN ORIGINATORS.-An individual may not act as a loan |
| 193 | originator unless he or she is an employee of, or an independent |
| 194 | contractor for, a mortgage broker or a mortgage lender, and may |
| 195 | not be employed by or contract with more than one mortgage |
| 196 | broker or mortgage lender, or either simultaneously. |
| 197 | (2) CONTRACT LOAN PROCESSORS.-Subsection (1) However, this |
| 198 | provision does not apply to a contract loan processor who has a |
| 199 | declaration of intent to act solely as a contract loan processor |
| 200 | on file with the office. The declaration of intent must be on a |
| 201 | form as prescribed by commission rule any licensed loan |
| 202 | originator who acts solely as a loan processor and contracts |
| 203 | with more than one mortgage broker or mortgage lender, or either |
| 204 | simultaneously. |
| 205 | (2) For purposes of this section, the term "loan |
| 206 | processor" means an individual who is licensed as a loan |
| 207 | originator who engages only in: |
| 208 | (a) The receipt, collection, distribution, and analysis of |
| 209 | information common for the processing or underwriting of a |
| 210 | residential mortgage loan; or |
| 211 | (b) Communication with consumers to obtain the information |
| 212 | necessary for the processing or underwriting of a loan, to the |
| 213 | extent that such communication does not include offering or |
| 214 | negotiating loan rates or terms or does not include counseling |
| 215 | consumers about residential mortgage loan rates or terms. |
| 216 | (3) A person may not act as a loan processor unless the |
| 217 | person is licensed as a loan originator under this chapter and |
| 218 | has on file with the office a declaration of intent to engage |
| 219 | solely in loan processing. The declaration of intent must be on |
| 220 | such form as prescribed by the commission by rule. |
| 221 | (a)(4) A loan originator that currently has a declaration |
| 222 | of intent to engage solely in loan processing on file with the |
| 223 | office may withdraw his or her declaration of intent to engage |
| 224 | solely in loan processing. The withdrawal of declaration of |
| 225 | intent must be on such form as prescribed by commission rule. |
| 226 | (b)(5) A declaration of intent or a withdrawal of |
| 227 | declaration of intent is effective upon receipt by the office. |
| 228 | (c)(6) The fee earned by a contract loan processor may be |
| 229 | paid to the company that employs the loan processor without |
| 230 | violating the restriction in s. 494.0025(8)(7) requiring fees or |
| 231 | commissions to be paid to a licensed mortgage broker or mortgage |
| 232 | lender or a person exempt from licensure under this chapter. |
| 233 | (3) IN-HOUSE LOAN PROCESSORS.-An individual may not act as |
| 234 | an in-house loan processor unless he or she is an employee of a |
| 235 | mortgage broker or a mortgage lender and may not be employed by |
| 236 | more than one mortgage broker or mortgage lender, or either, |
| 237 | simultaneously. An in-house loan processor must work at the |
| 238 | direction of and be subject to the supervision and instruction |
| 239 | of a loan originator licensed under this part. |
| 240 | Section 5. Subsection (1) of section 494.0035, Florida |
| 241 | Statutes, is amended to read: |
| 242 | 494.0035 Principal loan originator and branch manager for |
| 243 | mortgage broker.- |
| 244 | (1) Each mortgage broker must be operated by a principal |
| 245 | loan originator who shall have full charge, control, and |
| 246 | supervision of the mortgage broker business. The principal loan |
| 247 | originator must have been licensed as a loan originator for at |
| 248 | least 1 year before being designated as the principal loan |
| 249 | originator, or must demonstrate to the satisfaction of the |
| 250 | office that he or she has been actively engaged in a mortgage- |
| 251 | related mortgage broker-related business for at least 1 year |
| 252 | before being designated as a principal loan originator. Each |
| 253 | mortgage broker must keep the office informed of the person |
| 254 | designated as the principal loan originator as prescribed by |
| 255 | commission rule. If the designation is inaccurate, the mortgage |
| 256 | broker business shall be deemed to be operated under the full |
| 257 | charge, control, and supervision of each officer, director, or |
| 258 | ultimate equitable owner of a 10-percent or greater interest in |
| 259 | the mortgage broker, or any other person in a similar capacity. |
| 260 | A loan originator may not be a principal loan originator for |
| 261 | more than one mortgage broker at any given time. |
| 262 | Section 6. Paragraph (c) of subsection (3) of section |
| 263 | 494.0038, Florida Statutes, is amended to read: |
| 264 | 494.0038 Loan origination and mortgage broker fees and |
| 265 | disclosures.- |
| 266 | (3) At the time a written mortgage broker agreement is |
| 267 | signed by the borrower or forwarded to the borrower for |
| 268 | signature, or at the time the mortgage broker business accepts |
| 269 | an application fee, credit report fee, property appraisal fee, |
| 270 | or any other third-party fee, but at least 3 business days |
| 271 | before execution of the closing or settlement statement, the |
| 272 | mortgage broker shall disclose in writing to any applicant for a |
| 273 | mortgage loan the following information: |
| 274 | (c) A good faith estimate that discloses settlement |
| 275 | charges and loan terms, signed and dated by the borrower, which |
| 276 | discloses the total amount of each of the fees the borrower may |
| 277 | reasonably expect to pay if the loan is closed, including, but |
| 278 | not limited to, fees earned by the mortgage broker, lender fees, |
| 279 | third-party fees, and official fees, together with the terms and |
| 280 | conditions for obtaining a refund of such fees, if any. |
| 281 | 1. Any amount collected in excess of the actual cost shall |
| 282 | be returned within 60 days after rejection, withdrawal, or |
| 283 | closing. |
| 284 | 2. At the time a good faith estimate is provided to the |
| 285 | borrower, the loan originator must identify in writing an |
| 286 | itemized list that provides the recipient of all payments |
| 287 | charged the borrower, which, except for all fees to be received |
| 288 | by the mortgage broker, may be disclosed in generic terms, such |
| 289 | as, but not limited to, paid to lender, appraiser, officials, |
| 290 | title company, or any other third-party service provider. This |
| 291 | requirement does not supplant or is not a substitute for the |
| 292 | written mortgage broker agreement described in subsection (1). |
| 293 | The disclosure required under this subparagraph must be signed |
| 294 | and dated by the borrower. |
| 295 | Section 7. Paragraph (a) of subsection (7) of section |
| 296 | 494.00421, Florida Statutes, is amended to read: |
| 297 | 494.00421 Fees earned upon obtaining a bona fide |
| 298 | commitment.-Notwithstanding the provisions of ss. 494.001- |
| 299 | 494.0077, any mortgage broker which contracts to receive a loan |
| 300 | origination fee from a borrower upon obtaining a bona fide |
| 301 | commitment shall accurately disclose in the mortgage broker |
| 302 | agreement: |
| 303 | (7)(a) The following statement, in at least 12-point |
| 304 | boldface type immediately above the signature lines for the |
| 305 | borrowers: |
| 306 | "You are entering into a contract with a mortgage broker to |
| 307 | obtain a bona fide mortgage loan commitment under the same terms |
| 308 | and conditions as stated hereinabove or in a separate executed |
| 309 | good faith estimate form. If the mortgage broker obtains a bona |
| 310 | fide commitment under the same terms and conditions, you will be |
| 311 | obligated to pay the loan origination fees even if you choose |
| 312 | not to complete the loan transaction. If the provisions of s. |
| 313 | 494.00421, Florida Statutes, are not met, the loan origination |
| 314 | fee can only be earned upon the funding of the mortgage loan. |
| 315 | The borrower may contact the Office of Financial Regulation |
| 316 | Department of Financial Services, Tallahassee, Florida, |
| 317 | regarding any complaints that the borrower may have against the |
| 318 | loan originator. The telephone number of the office department |
| 319 | is: ...(insert telephone number)...." |
| 320 | Section 8. Paragraph (e) of subsection (1) of section |
| 321 | 494.00612, Florida Statutes, is amended to read: |
| 322 | 494.00612 Mortgage lender license renewal.- |
| 323 | (1) In order to renew a mortgage lender license, a |
| 324 | mortgage lender must: |
| 325 | (e) Authorize the registry to obtain an independent credit |
| 326 | report on each of the mortgage lender's control persons lender |
| 327 | from a consumer reporting agency, and transmit or provide access |
| 328 | to the report to the office. The cost of the credit report shall |
| 329 | be borne by the licensee. |
| 330 | Section 9. Subsection (13) is added to section 494.0067, |
| 331 | Florida Statutes, to read: |
| 332 | 494.0067 Requirements of mortgage lenders.- |
| 333 | (13) Each mortgage lender shall submit to the registry |
| 334 | reports of condition which are in a form and which contain such |
| 335 | information as the registry may require. |
| 336 | Section 10. This act shall take effect July 1, 2011. |