LOAN ORIGINATORS AND MORTGAGE BROKERS
494.001 - Definitions
As used in ss. 494.001-494.0077, the term:
History.- ss. 1, 50, ch. 91-245; s. 4, ch. 91-429; s. 1, ch. 95-313; s. 1, ch. 99-213; s. 1, ch. 2001-228; s. 513, ch. 2003-261; s. 1, ch. 2006-213; s. 1, ch. 2007-182; ss. 1, 2, ch. 2009-241; s. 1, ch. 2011-71.
- (1) “Borrower” means a person obligated to repay a mortgage loan and includes, but is not limited to, a coborrower or cosignor.
- (2) “Branch manager” means the licensed loan originator in charge of, and responsible for, the operation of the branch office of a mortgage broker or mortgage lender.
- (3) “Branch office” means a location, other than a mortgage broker’s or mortgage lender’s principal place of business:
- (a) The address of which appears on business cards, stationery, or advertising used by the licensee in connection with business conducted under this chapter;
- (b) At which the licensee’s name, advertising or promotional materials, or signage suggests that mortgage loans are originated, negotiated, funded, or serviced; or
- (c) At which mortgage loans are originated, negotiated, funded, or serviced by a licensee.
- (4) “Commission” means the Financial Services Commission.
- (5) “Contract loan processor” means an individual who is licensed under part II of this chapter as a loan originator, who is an independent contractor for a mortgage broker or mortgage lender, and who engages only in loan processing.
- (6) “Control person” means an individual, partnership, corporation, trust, or other organization that possesses the power, directly or indirectly, to direct the management or policies of a company, whether through ownership of securities, by contract, or otherwise. The term includes, but is not limited to:
- (a) A company’s executive officers, including the president, chief executive officer, chief financial officer, chief operations officer, chief legal officer, chief compliance officer, director, and other individuals having similar status or functions.
- (b) For a corporation, each shareholder that, directly or indirectly, owns 10 percent or more or that has the power to vote 10 percent or more, of a class of voting securities unless the applicant is a publicly traded company.
- (c) For a partnership, all general partners and limited or special partners that have contributed 10 percent or more or that have the right to receive, upon dissolution, 10 percent or more of the partnership’s capital.
- (d) For a trust, each trustee.
- (e) For a limited liability company, all elected managers and those members that have contributed 10 percent or more or that have the right to receive, upon dissolution, 10 percent or more of the partnership’s capital.
- (f) Principal loan originators.
- (7) “Credit report” means any written, oral, or other information obtained from a consumer reporting agency as described in the federal Fair Credit Reporting Act, which bears on an individual’s credit worthiness, credit standing, or credit capacity. A credit score alone, as calculated by the reporting agency, is not considered a credit report.
- (8) “Credit score” means a score, grade, or value that is derived by using data from a credit report in any type of model, method, or program, whether electronically, in an algorithm, in a computer software or program, or by any other process for the purpose of grading or ranking credit report data.
- (9) “Depository institution” has the same meaning as in s. (3)(c) of the Federal Deposit Insurance Act, and includes any credit union.
- (10) “Financial audit report” means a report prepared in connection with a financial audit that is conducted in accordance with generally accepted auditing standards prescribed by the American Institute of Certified Public Accountants by a certified public accountant licensed to do business in the United States, and which must include:
- (a) Financial statements, including notes related to the financial statements and required supplementary information, prepared in conformity with United States generally accepted accounting principles.
- (b) An expression of opinion regarding whether the financial statements are presented in conformity with United States generally accepted accounting principles, or an assertion to the effect that such an opinion cannot be expressed and the reasons.
- (11) “In-house loan processor” means an individual who is an employee of a mortgage broker or a mortgage lender who engages only in loan processing.
- (12) “Institutional investor” means a depository institution, real estate investment trust, insurance company, real estate company, accredited investor as defined in 17 C.F.R. ss. 230.501 et seq., mortgage broker or mortgage lender licensed under this chapter, or other business entity that invests in mortgage loans, including a secondary mortgage market institution including, without limitation, the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, and the Government National Mortgage Association, conduits, investment bankers, and any subsidiary of such entities.
- (13) “Loan commitment” or “commitment” means a statement by the lender setting forth the terms and conditions upon which the lender is willing to make a particular mortgage loan to a particular borrower.
- (14) “Loan modification” means a modification to an existing loan. The term does not include a refinancing transaction.
- (15) “Loan origination fee” means the total compensation from any source received by a mortgage broker acting as a loan originator. Any payment for processing mortgage loan applications must be included in the fee and must be paid to the mortgage broker.
- (16) “Loan originator” means an individual who, directly or indirectly, solicits or offers to solicit a mortgage loan, accepts or offers to accept an application for a mortgage loan, negotiates or offers to negotiate the terms or conditions of a new or existing mortgage loan on behalf of a borrower or lender, or negotiates or offers to negotiate the sale of an existing mortgage loan to a noninstitutional investor for compensation or gain. The term includes an individual who is required to be licensed as a loan originator under the S.A.F.E. Mortgage Licensing Act of 2008. The term does not include an employee of a mortgage broker or mortgage lender whose duties are limited to physically handling a completed application form or transmitting a completed application form to a lender on behalf of a prospective borrower.
- (17) “Loan processing” means:
- (a) Receiving, collecting, distributing, and analyzing information common for the processing of a mortgage loan; or
- (b) Communicating with a consumer to obtain information necessary for the processing of a mortgage loan if such communication does not include offering or negotiating loan rates or terms, or counseling consumers about residential mortgage loan rates or terms.
- (18) “Lock-in agreement” means an agreement whereby the lender guarantees for a specified number of days or until a specified date the availability of a specified rate of interest or specified formula by which the rate of interest will be determined or specific number of discount points will be given, if the loan is approved and closed within the stated period of time.
- (19) “Making a mortgage loan” means closing a mortgage loan in a person’s name, advancing funds, offering to advance funds, or making a commitment to advance funds to an applicant for a mortgage loan.
- (20) “Material change” means a change that would be important to a reasonable borrower in making a borrowing decision, and includes a change in the interest rate previously offered a borrower, a change in the type of loan offered to a borrower, or a change in fees to be charged to a borrower resulting in total fees greater than $100.
- (21) “Mortgage broker” means a person conducting loan originator activities through one or more licensed loan originators employed by the mortgage broker or as independent contractors to the mortgage broker.
- (22) “Mortgage lender” means a person making a mortgage loan or servicing a mortgage loan for others, or, for compensation or gain, directly or indirectly, selling or offering to sell a mortgage loan to a noninstitutional investor.
- (23) “Mortgage loan” means any:
- (a) Residential loan primarily for personal, family, or household use which is secured by a mortgage, deed of trust, or other equivalent consensual security interest on a dwelling, as defined in s. 103(v) of the federal Truth in Lending Act, or for the purchase of residential real estate upon which a dwelling is to be constructed;
- (b) Loan on commercial real property if the borrower is an individual or the lender is a noninstitutional investor; or
- (c) Loan on improved real property consisting of five or more dwelling units if the borrower is an individual or the lender is a noninstitutional investor.
- (24) “Mortgage loan application” means the submission of a borrower’s financial information in anticipation of a credit decision, which includes the borrower’s name, the borrower’s monthly income, the borrower’s social security number to obtain a credit report, the property address, an estimate of the value of the property, the mortgage loan amount sought, and any other information deemed necessary by the loan originator. An application may be in writing or electronically submitted, including a written record of an oral application.
- (25) “Net worth” means total assets minus total liabilities pursuant to United States generally accepted accounting principles.
- (26) “Noninstitutional investor” means an investor other than an institutional investor.
- (27) “Office” means the Office of Financial Regulation.
- (28) “Principal loan originator” means the licensed loan originator in charge of, and responsible for, the operation of a mortgage lender or mortgage broker, including all of the activities of the mortgage lender’s or mortgage broker’s loan originators, in-house loan processors, and branch managers, whether employees or independent contractors.
- (29) “Principal place of business” means a mortgage broker’s or mortgage lender’s primary business office, the street address, or physical location that is designated on the application for licensure or any amendment to such application.
- (30) “Registered loan originator” means a loan originator who is employed by a depository institution, by a subsidiary that is owned and controlled by a depository institution and regulated by a federal banking agency, or by an institution regulated by the Farm Credit Administration, and who is registered with and maintains a unique identifier through the registry.
- (31) “Registry” means the Nationwide Mortgage Licensing System and Registry, which is the mortgage licensing system developed and maintained by the Conference of State Bank Supervisors and the American Association of Residential Mortgage Regulators for the licensing and registration of loan originators.
- (32) “Relative” means any of the following, whether by the full or half blood or by adoption:
- (a) A person’s spouse, father, mother, children, brothers, and sisters.
- (b) The father, mother, brothers, and sisters of the person’s spouse.
- (c) The spouses of the person’s children, brothers, or sisters.
- (33) “Servicing endorsement” means authorizing a mortgage lender to service a loan for more than 4 months.
- (34) “Servicing a mortgage loan” means to receive, cause to be received, or transferred for another, installment payments of principal, interest, or other payments pursuant to a mortgage loan.
- (35) “Substantial fault of the borrower” means that the borrower:
- (a) Failed to provide information or documentation required by the lender or broker in a timely manner;
- (b) Provided information, in the application or subsequently, which upon verification proved to be significantly inaccurate, causing the need for review or further investigation by the lender or broker;
- (c) Failed to produce by the date specified by the lender all documentation specified in the commitment or closing instructions as being required for closing; or
- (d) Failed to be ready, willing, or able to close the loan by the date specified by the lender or broker.
For purposes of this definition, a borrower is considered to have provided information or documentation in a timely manner if such information and documentation was received by the lender within 7 days after the borrower received a request for same, and information is considered significantly inaccurate if the correct information materially affects the eligibility of the borrower for the loan for which application is made.
- (36) “Ultimate equitable owner” means an individual who, directly or indirectly, owns or controls an ownership interest in a corporation, a foreign corporation, an alien business organization, or any other form of business organization, regardless of whether the individual owns or controls such interest through one or more individuals or one or more proxies, powers of attorney, nominees, corporations, associations, partnerships, trusts, joint stock companies, or other entities or devices, or any combination thereof.
494.0011 - Powers and duties of the commission and office
History.- ss. 2, 50, ch. 91-245; s. 4, ch. 91-429; s. 165, ch. 98-200; s. 20, ch. 99-155; s. 2, ch. 99-213; s. 514, ch. 2003-261; s. 2, ch. 2006-213; s. 3, ch. 2009-241; s. 2, ch. 2011-71.
- (1) The office shall be responsible for the administration and enforcement of ss. 494.001-494.0077.
- (2) The commission may adopt rules to administer parts I, II, and III of this chapter, including rules:
- (a) Requiring electronic submission of any forms, documents, or fees required by this act.
- (b) Relating to compliance with the S.A.F.E. Mortgage Licensing Act of 2008, including rules to:
- 1. Require loan originators, mortgage brokers, mortgage lenders, and branch offices to register through the registry.
- 2. Require the use of uniform forms that have been approved by the registry, and any subsequent amendments to such forms if the forms are substantially in compliance with the provisions of this chapter. Uniform forms that the commission may adopt include, but are not limited to:
- a. Uniform Mortgage Lender/Mortgage Broker Form, MU1.
- b. Uniform Mortgage Biographical Statement & Consent Form, MU2.
- c. Uniform Mortgage Branch Office Form, MU3.
- d. Uniform Individual Mortgage License/Registration & Consent Form, MU4.
- 3. Require the filing of forms, documents, and fees in accordance with the requirements of the registry.
- 4. Prescribe requirements for amending or surrendering a license or other activities as the commission deems necessary for the office’s participation in the registry.
- 5. Prescribe procedures that allow a licensee to challenge information contained in the registry.
- 6. Prescribe procedures for reporting violations of this chapter and disciplinary actions on licensees to the registry.
- (c) Establishing time periods during which a loan originator, mortgage broker, or mortgage lender license applicant under part II or part III is barred from licensure due to prior criminal convictions of, or guilty or nolo contendere pleas by, any of the applicant’s control persons, regardless of adjudication.
- 1. The rules must provide:
- a. Permanent bars for felonies involving fraud, dishonesty, breach of trust, or money laundering;
- b. A 15-year disqualifying period for felonies involving moral turpitude;
- c. A 7-year disqualifying period for all other felonies; and
- d. A 5-year disqualifying period for misdemeanors involving fraud, dishonesty, or any other act of moral turpitude.
- 2. The rules may provide for an additional waiting period due to dates of imprisonment or community supervision, the commitment of multiple crimes, and other factors reasonably related to the applicant’s criminal history.
- 3. The rules may provide for mitigating factors for crimes identified in sub-subparagraph 1.b. However, the mitigation may not result in a period of disqualification less than 7 years. The rule may not mitigate the disqualifying periods in sub-subparagraphs 1.a., 1.c., and 1.d.
- 4. An applicant is not eligible for licensure until the expiration of the disqualifying period set by rule.
- 5. Section 112.011 is not applicable to eligibility for licensure under this part.
- (3) Except as provided in s. 494.00172, all fees, charges, and fines collected pursuant to ss. 494.001-494.0077 shall be deposited in the Regulatory Trust Fund of the office.
- (4) The office shall participate in the registry and shall regularly report to the registry violations of this chapter, disciplinary actions, and other information deemed relevant by the office under this chapter.
494.00115 - Exemptions
History.- s. 4, ch. 2009-241; s. 3, ch. 2011-71.
- (1) The following are exempt from regulation under this part and parts II and III of this chapter.
- (a) Any person operating exclusively as a registered loan originator in accordance with the S.A.F.E. Mortgage Licensing Act of 2008.
- (b) A depository institution; subsidiaries that are owned and controlled by a depository institution and regulated by the Board of Governors of the Federal Reserve System, the Comptroller of the Currency, the Director of the Office of Thrift Supervision, the National Credit Union Administration, or the Federal Deposit Insurance Corporation; or institutions regulated by the Farm Credit Administration.
- (c) The Federal National Mortgage Association; the Federal Home Loan Mortgage Corporation; any agency of the Federal Government; any state, county, or municipal government; or any quasi-governmental agency that acts in such capacity under the specific authority of the laws of any state or the United States.
- (d) An attorney licensed in this state who negotiates the terms of a mortgage loan on behalf of a client as an ancillary matter to the attorney’s representation of the client.
- (e) A person involved solely in the extension of credit relating to the purchase of a timeshare plan, as that term is defined in 11 U.S.C. s. 101(53D).
- (f) A person who performs only real estate brokerage activities and is licensed or registered in this state under part I of chapter 475, unless the person is compensated by a lender, a mortgage broker, or other loan originator or by an agent of such lender, mortgage broker, or other loan originator. The term “real estate brokerage activity” has the same meaning as in the federal Secure and Fair Enforcement for Mortgage Licensing Act of 2008.
- (2) The following persons are exempt from regulation under part III of this chapter:
- (a) A person acting in a fiduciary capacity conferred by the authority of a court.
- (b) A person who, as a seller of his or her own real property, receives one or more mortgages in a purchase money transaction.
- (c) A person who acts solely under contract and as an agent for federal, state, or municipal agencies for the purpose of servicing mortgage loans.
- (d) A person who makes only nonresidential mortgage loans and sells loans only to institutional investors.
- (e) An individual making or acquiring a mortgage loan using his or her own funds for his or her own investment, and who does not hold himself or herself out to the public as being in the mortgage lending business.
- (f) An individual selling a mortgage that was made or purchased with that individual’s funds for his or her own investment, and who does not hold himself or herself out to the public as being in the mortgage lending business.
- (3) It is not necessary to negate any of the exemptions provided in this section in any complaint, information, indictment, or other writ or proceeding brought under ss. 494.001-494.0077. The burden of establishing the right to an exemption is on the party claiming the benefit of the exemption.
494.0012 - Investigations; complaints; examinations
History.- ss. 3, 50, ch. 91-245; s. 4, ch. 91-429; s. 1, ch. 92-9; s. 3, ch. 99-213; s. 515, ch. 2003-261.
- (1) The office may conduct an investigation of any person whenever the office has reason to believe, either upon complaint or otherwise, that any violation of ss. 494.001-494.0077 has been committed or is about to be committed.
- (2) Any person having reason to believe that a provision of this act has been violated may file a written complaint with the office setting forth details of the alleged violation.
- (3)(a) The office may, at intermittent periods, conduct examinations of any licensee or other person under the provisions of ss. 494.001-494.0077.
- (b) The office shall conduct all examinations at a convenient location in this state unless the office determines that it is more effective or cost-efficient to perform an examination at the licensee’s out-of-state location. For an examination performed at the licensee’s out-of-state location, the licensee shall pay the travel expense and per diem subsistence at the rate provided by law for up to thirty 8-hour days per year for each office examiner who participates in such an examination. However, if the examination involves or reveals fraudulent conduct by the licensee, the licensee shall pay the travel expense and per diem subsistence provided by law, without limitation, for each participating examiner.
494.00125 - Public records exemptions
History.- ss. 12, 50, ch. 91-245; s. 4, ch. 91-429; s. 2, ch. 92-9; s. 1, ch. 95-131; ss. 328, 329, ch. 96-406; s. 1140, ch. 97-103; s. 4, ch. 99-213; ss. 516, 522, ch. 2003-261; s. 1, ch. 2010-169.
- (1) INVESTIGATIONS OR EXAMINATIONS.-
- (a) Except as otherwise provided by this subsection, information relative to an investigation or examination by the office pursuant to this chapter, including any consumer complaint received by the office or the Department of Financial Services, is confidential and exempt from s. 119.07(1) until the investigation or examination is completed or ceases to be active. For purposes of this subsection, an investigation or examination is considered active if the office or any law enforcement or administrative agency is proceeding with reasonable dispatch and has a reasonable good faith belief that the investigation or examination may lead to the filing of an administrative, civil, or criminal proceeding or to the denial or conditional grant of a license.
- (b) This subsection does not prohibit the disclosure of information that is filed with the office as a normal condition of licensure and which, but for the investigation or examination, would be subject to s. 119.07(1).
- (c) Except as necessary for the office to enforce the provisions of this chapter, a consumer complaint and other information relative to an investigation or examination shall remain confidential and exempt from s. 119.07(1) after the investigation or examination is completed or ceases to be active to the extent disclosure would:
- 1. Jeopardize the integrity of another active investigation or examination.
- 2. Reveal the name, address, telephone number, social security number, or any other identifying number or information of any complainant, customer, or account holder.
- 3. Disclose the identity of a confidential source.
- 4. Disclose investigative techniques or procedures.
- 5. Reveal a trade secret as defined in s. 688.002.
- (d) If office personnel are or have been involved in an investigation or examination of such nature as to endanger their lives or physical safety or that of their families, the home addresses, telephone numbers, places of employment, and photographs of such personnel, together with the home addresses, telephone numbers, photographs, and places of employment of spouses and children of such personnel and the names and locations of schools and day care facilities attended by the children of such personnel are confidential and exempt from s. 119.07(1).
- (e) This subsection does not prohibit the office from providing confidential and exempt information to any law enforcement or administrative agency. Any law enforcement or administrative agency receiving confidential and exempt information in connection with its official duties shall maintain the confidentiality of the information if it would otherwise be confidential.
- (f) All information obtained by the office from any person which is only made available to the office on a confidential or similarly restricted basis shall be confidential and exempt from s. 119.07(1).
- (g) If information subject to this subsection is offered in evidence in any administrative, civil, or criminal proceeding, the presiding officer may prevent the disclosure of information that would be confidential pursuant to paragraph (c).
- (h) A privilege against civil liability is granted to a person who furnishes information or evidence to the office, unless such person acts in bad faith or with malice in providing such information or evidence.
- (2) FINANCIAL STATEMENTS.- All audited financial statements submitted pursuant to ss. 494.001-494.0077 are confidential and exempt from the requirements of s. 119.07(1), except that office employees may have access to such information in the administration and enforcement of ss. 494.001-494.0077 and such information may be used by office personnel in the prosecution of violations under ss. 494.001-494.0077.
- (3) CREDIT INFORMATION.-
- (a) Credit history information and credit scores held by the office and related to licensing under ss. 494.001-494.0077 are confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
- (b) Credit history information and credit scores made confidential and exempt pursuant to paragraph (a) may be provided by the office to another governmental entity having oversight or regulatory or law enforcement authority.
- (c) This subsection does not apply to information that is otherwise publicly available.
- (d) This subsection is subject to the Open Government Sunset Review Act in accordance with s. 119.15 and shall stand repealed on October 2, 2015, unless reviewed and saved from repeal through reenactment by the Legislature.
Note.- Subsection (2) former s. 494.0021.
494.0013 - Injunction to restrain violations
History.- ss. 4, 50, ch. 91-245; s. 4, ch. 91-429; s. 541, ch. 97-103; s. 517, ch. 2003-261.
- (1) The office may bring action through its own counsel in the name and on behalf of the state against any person who has violated or is about to violate any provision of ss. 494.001-494.0077 or any rule of the commission or order of the office issued under ss. 494.001-494.0077 to enjoin the person from continuing in or engaging in any act in furtherance of the violation.
- (2) In any injunctive proceeding, the court may, on due showing by the office, issue a subpoena or subpoena duces tecum requiring the attendance of any witness and requiring the production of any books, accounts, records, or other documents and materials that appear necessary to the expeditious resolution of the application for injunction.
- (3) In addition to all other means provided by law for the enforcement of any temporary restraining order, temporary injunction, or permanent injunction issued in any such court proceeding, the court has the power and jurisdiction, upon application of the office, to impound, and to appoint a receiver or administrator for, the property, assets, and business of the defendant, including, but not limited to, the books, records, documents, and papers appertaining thereto. Such receiver or administrator, when appointed and qualified, has all powers and duties as to custody, collection, administration, winding up, and liquidation of the property and business as are from time to time conferred upon him or her by the court. In any such action, the court may issue an order staying all pending suits and enjoining any further suits affecting the receiver’s or administrator’s custody or possession of the property, assets, and business, or the court, in its discretion and with the consent of the chief judge of the circuit, may require that all such suits be assigned to the circuit court judge who appoints the receiver or administrator.
494.00135 - Subpoenas
History.- s. 5, ch. 2009-241.
- (1) The office may:
- (a) Issue and serve subpoenas and subpoenas duces tecum to compel the attendance of witnesses and the production of all books, accounts, records, and other documents and materials relevant to an examination or investigation conducted by the office. The office, or its authorized representative, may administer oaths and affirmations to any person.
- (b) Seek subpoenas or subpoenas duces tecum from any court to command the appearance of witnesses and the production of books, accounts, records, and other documents or materials at a time and place named in the subpoenas, and an authorized representative of the office may serve such subpoenas.
- (2) If there is substantial noncompliance with a subpoena or subpoena duces tecum issued by the office, the office may petition the court in the county where the person subpoenaed resides or has his or her principal place of business for an order requiring the person to appear, testify, or produce such books, accounts, records, and other documents as are specified in the subpoena or subpoena duces tecum.
- (a) The court may grant injunctive relief restraining the person from advertising, promoting, soliciting, entering into, offering to enter into, continuing, or completing a mortgage loan or servicing a mortgage loan.
- (b) The court may grant such other relief, including, but not limited to, the restraint, by injunction or appointment of a receiver, of any transfer, pledge, assignment, or other disposition of the person’s assets or any concealment, alteration, destruction, or other disposition of books, accounts, records, or other documents and materials as the court deems appropriate, until the person has fully complied with the subpoena duces tecum and the office has completed its investigation or examination.
- (c) The court may order the refund of any fees collected in a mortgage loan transaction if books and documents substantiating the transaction are not produced or cannot be produced.
- (d) If it appears to the office that compliance with a subpoena or subpoena duces tecum issued is essential and otherwise unavailable to an investigation or examination, the office may apply to the court for a writ of ne exeat pursuant to s. 68.02.
- (e) The office may seek a writ of attachment to obtain all books, accounts, records, and other documents and materials relevant to an examination or investigation.
- (3) The office is entitled to the summary procedure provided in s. 51.011, and the court shall advance such cause on its calendar. Attorney’s fees and any other costs incurred by the office to obtain an order granting, in whole or in part, a petition for enforcement of a subpoena or subpoena duces tecum shall be taxed against the subpoenaed person, and failure to comply with such order is a contempt of court.
494.0014 - Cease and desist orders; refund orders
History.- ss. 5, 50, ch. 91-245; s. 4, ch. 91-429; s. 518, ch. 2003-261; s. 2, ch. 2007-182; s. 6, ch. 2009-241.
- (1) The office may issue and serve upon any person an order to cease and desist and to take corrective action if it has reason to believe the person is violating, has violated, or is about to violate any provision of ss. 494.001-494.0077, any rule or order issued under ss. 494.001-494.0077, or any written agreement between the person and the office. All procedural matters relating to issuance and enforcement of such order are governed by the Administrative Procedure Act.
- (2) The office may order the refund of any fee directly or indirectly assessed and charged on a mortgage loan transaction which is unauthorized or exceeds the maximum fee specifically authorized in ss. 494.001-494.0077, or any amount collected for the payment of third-party fees which exceeds the cost of the service provided.
494.0015 - Evidence; examiner’s worksheets, investigative reports, other related documents
In any hearing in which the financial examiner acting under authority of ss. 494.001-494.0077 is available for cross-examination, any official written report, worksheet, or other related paper, or a duly certified copy thereof, compiled, prepared, drafted, or otherwise made by the financial examiner, after being duly authenticated by the examiner, may be admitted as competent evidence upon the oath of the examiner that the report, worksheet, or related paper was prepared as a result of an examination of the books and records of a licensee or other person conducted pursuant to the authority of ss. 494.001-494.0077.
History.- ss. 6, 50, ch. 91-245; s. 4, ch. 91-429.
494.0016 - Books, accounts, and records; maintenance; examinations by the office
History.- ss. 7, 50, ch. 91-245; s. 4, ch. 91-429; s. 5, ch. 99-213; s. 519, ch. 2003-261; s. 3, ch. 2006-213.
- (1) Each licensee shall maintain, at the principal place of business designated on the license, all books, accounts, records, and documents necessary to determine the licensee’s compliance with ss. 494.001-494.0077.
- (2) The office may authorize maintenance of records at a location other than a principal place of business. The office may require books, accounts, and records to be produced and available at a reasonable and convenient location in this state.
- (3) All books, accounts, records, documents, and receipts for expenses paid by the licensee on behalf of the borrower, including each closing statement signed by a borrower, shall be preserved and kept available for examination by the office for at least 3 years after the date of original entry.
- (4) The commission may prescribe by rule the minimum information to be shown in the books, accounts, records, and documents of licensees so that such records will enable the office to determine the licensee’s compliance with ss. 494.001-494.0077. In addition, the commission may prescribe by rule requirements for the destruction of books, accounts, records, and documents retained by the licensee after completion of the time period specified in subsection (3).
494.00165 - Prohibited advertising; record requirements
History.- s. 6, ch. 99-213; s. 520, ch. 2003-261; s. 7, ch. 2009-241.
- (1) It is a violation of this chapter for any person to:
- (a) Advertise that an applicant shall have unqualified access to credit without disclosing the material limitations on the availability of such credit. Material limitations include, but are not limited to, the percentage of down payment required, that a higher rate or points could be required, or that restrictions on the maximum principal amount of the loan offered could apply.
- (b) Advertise a mortgage loan at an expressed interest rate unless the advertisement specifically states that the expressed rate could change or not be available at commitment or closing.
- (c) Advertise mortgage loans, including rates, margins, discounts, points, fees, commissions, or other material information, including material limitations on such loans, unless the person is able to make such mortgage loans available to a reasonable number of qualified applicants.
- (d) Falsely advertise or misuse names indicating a federal agency pursuant to 18 U.S.C. s. 709.
- (e) Engage in unfair, deceptive, or misleading advertising regarding mortgage loans, brokering services, or lending services.
- (2) Each person required to be licensed under this chapter must maintain a record of samples of each of its advertisements, including commercial scripts of each radio or television broadcast, for examination by the office for 2 years after the date of publication or broadcast.
494.00172 - Mortgage Guaranty Trust Fund; payment of fees and claims
A nonrefundable fee is imposed on each application for a mortgage broker, mortgage lender, or loan originator license and on each annual application for a renewal of such license. For a loan originator, the initial and renewal fee is $20. For mortgage brokers and lenders, the initial and renewal fee is $100. This fee is in addition to the regular application or renewal fee assessed and shall be deposited into the Mortgage Guaranty Trust Fund of the office for the payment of claims in accordance with this section.
History.- s. 9, ch. 2009-241.
- (1) If the amount in the trust fund exceeds $5 million, the additional fee shall be discontinued and may not be reimposed until the fund is reduced to below $1 million pursuant to disbursements made in accordance with this section.
- (2) A borrower in a mortgage loan transaction is eligible to seek recovery from the trust fund if all of the following conditions are met:
- (a) The borrower has recorded a final judgment issued by a state court wherein the cause of action against a licensee under this chapter was based on a violation of this chapter and the damages were the result of that violation.
- (b) The borrower has caused a writ of execution to be issued upon such judgment, and the officer executing the judgment has made a return showing that no personal or real property of the judgment debtor liable to be levied upon in satisfaction of the judgment can be found or that the amount realized on the sale of the judgment debtor’s property pursuant to such execution is insufficient to satisfy the judgment.
- (c) The borrower has made all reasonable searches and inquiries to ascertain whether the judgment debtor possesses real or personal property or other assets subject to being sold or applied in satisfaction of the judgment, and has discovered no such property or assets; or he or she has discovered property and assets and has taken all necessary action and proceedings for the application thereof to the judgment, but the amount realized is insufficient to satisfy the judgment.
- (d) The borrower has applied any amounts recovered from the judgment debtor, or from any other source, to the damages awarded by the court.
- (e) The borrower, at the time the action was instituted, gave notice and provided a copy of the complaint to the office by certified mail. The requirement of a timely giving of notice may be waived by the office upon a showing of good cause.
- (f) The act for which recovery is sought occurred on or after January 1, 2011.
- (3) The requirements of subsection (2) are not applicable if the licensee upon which the claim is sought has filed for bankruptcy or has been adjudicated bankrupt. However, the claimant must file a proof of claim in the bankruptcy proceedings and must notify the office by certified mail of the claim by enclosing a copy of the proof of claim and all supporting documents.
- (4) Any person who meets all of the conditions in subsection (2) may apply to the office for payment from the trust fund equal to the unsatisfied portion of that person’s judgment or $50,000, whichever is less, but only to the extent that the amount reflected in the judgment is for actual or compensatory damages, plus any attorney’s fees and costs awarded by the trial court which have been determined by the court, and the documented costs associated with attempting to collect the judgment. Actual or compensatory damages may not include postjudgment interest. Attorney’s fees may not exceed $5,000 or 20 percent of the actual or compensatory damages, whichever is less. If actual or compensatory damages, plus attorney’s fees and costs, exceed $50,000, actual or compensatory damages must be paid first. The cumulative payment for actual or compensatory damages, plus attorney’s fees and costs, may not exceed $50,000 as described in this section.
- (a) A borrower may not collect more than $50,000 from the trust fund for any claim regardless of the number of licensees liable for the borrower’s damages.
- (b) Payments for claims are limited in the aggregate to $250,000 against any one licensee under this chapter. If the total claims exceed the aggregate limit of $250,000, the office shall prorate payments based on the ratio that a claim bears to the total claims filed.
- (c) Payments shall be made to all persons meeting the requirements of subsection (2) 2 years after the date the first complete and valid notice is received by the office. Persons who give notice after 2 years and who otherwise comply with the conditions precedent to recovery may recover from any remaining portion of the $250,000 aggregate as provided in this subsection, with claims being paid in the order notice was received until the $250,000 aggregate has been disbursed.
- (d) The claimant shall assign his or her right, title, and interest in the judgment, to the extent of his or her recovery from the fund, to the office and shall record, at his or her own expense, the assignment of judgment in every county where the judgment is recorded.
- (e) If the money in the fund is insufficient to satisfy any valid claim or portion thereof, the office shall satisfy such unpaid claim or portion as soon as a sufficient amount of money has been deposited in the trust fund. If there is more than one unsatisfied claim outstanding, such claims shall be paid in the order in which the claims were filed with the office.
- (f) The payment of any amount from the fund in settlement of a claim or in satisfaction of a judgment against a licensee constitutes prima facie grounds for the revocation of the license.
494.00173 - Mortgage Guaranty Trust Fund; creation
History.- s. 1, ch. 2010-135; s. 2, ch. 2013-11.
- (1) The Mortgage Guaranty Trust Fund is created within, and shall be administered by, the Office of Financial Regulation.
- (2) Funds to be credited to the trust fund shall consist of the fee imposed pursuant to s. 494.00172 on loan originators, mortgage brokers, and mortgage lenders licensed under this chapter. Moneys in the trust fund shall be used to pay claims against loan originators, mortgage brokers, and mortgage lenders pursuant to s. 494.00172.
- (3) Notwithstanding s. 216.301 and pursuant to s. 216.351, any balance in the trust fund at the end of any fiscal year shall remain in the trust fund at the end of the year and shall be available for carrying out the purposes of the trust fund.