New Law Florida law in effect for 3rd party loss mitigators.
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The new Florida law enacted in January 2010 now requires any 3rd party loss mitigation company doing business in Florida to have a loan originators license, Realtor’s license or be an attorney. Make sure if you live in Florida you get licensed because the Attorney General is actively investigating short sale flips and how the loss mitigation, i.e. save your home services, are being proposed to the homeowners.
So to be clear, if you are going to do the loss mitigation on these short sales, then you or your company will either need to be licensed as a Mortgage Broker in Florida or will need to fall into an exception, such as being a loan originator registered in accordance with SAFE MORTGAGE LICENSING ACT OF 2008. As always, I’m not an attorney and always consult one if you have questions, however, this information was provided by a Real Estate attorney I’m associated with in Florida.
The law is posted below.
494.00296 Loan modification.–
1(1) PROHIBITED ACTS.–When offering or providing loan modification services, a mortgage broker, mortgage brokerage business, mortgage lender, or correspondent mortgage lender licensed, or required to be licensed, under ss. 494.001-494.0077 may not:
(a) Engage in or initiate loan modification services without first executing a written agreement for loan modification services with the borrower;
(b) Execute a loan modification without the consent of the borrower after the borrower is made aware of each modified term; or
(c) Solicit, charge, receive, or attempt to collect or secure payment, directly or indirectly, for loan modification services before completing or performing all services included in the agreement for loan modification services. A fee may be charged only if the loan modification results in a material benefit to the borrower. The commission may adopt rules to provide guidance on what constitutes a material benefit to the borrower.
1(2) LOAN MODIFICATION AGREEMENT.–
(a) The written agreement for loan modification services must be printed in at least 12-point uppercase type and signed by both parties. The agreement must include the name and address of the person providing loan modification services, the exact nature and specific detail of each service to be provided, the total amount and terms of charges to be paid by the borrower for the services, and the date of the agreement. The date of the agreement may not be earlier than the date the borrower signed the agreement. The mortgage brokerage business, mortgage lender, or correspondent mortgage lender must give the borrower a copy of the agreement to review at least 1 business day before the borrower is to sign the agreement.
(b) The borrower has the right to cancel the written agreement without any penalty or obligation if the borrower cancels the agreement within 3 business days after signing the agreement. The right to cancel may not be waived by the borrower or limited in any manner by the mortgage broker, mortgage brokerage business, mortgage lender, or correspondent mortgage lender. If the borrower cancels the agreement, any payments made must be returned to the borrower within 10 business days after receipt of the notice of cancellation.
(c) An agreement for loan modification services must contain, immediately above the signature line, a statement in at least 12-point uppercase type which substantially complies with the following:
BORROWER’S RIGHT OF CANCELLATION
YOU MAY CANCEL THIS AGREEMENT FOR LOAN MODIFICATION SERVICES WITHOUT ANY PENALTY OR OBLIGATION WITHIN 3 BUSINESS DAYS AFTER THE DATE THIS AGREEMENT IS SIGNED BY YOU.
THE MORTGAGE BROKER, MORTGAGE BROKERAGE BUSINESS, MORTGAGE LENDER, OR CORRESPONDENT MORTGAGE LENDER IS PROHIBITED BY LAW FROM ACCEPTING ANY MONEY, PROPERTY, OR OTHER FORM OF PAYMENT FROM YOU UNTIL ALL PROMISED SERVICES HAVE BEEN COMPLETED. IF FOR ANY REASON YOU HAVE PAID THE CONSULTANT BEFORE CANCELLATION, YOUR PAYMENT MUST BE RETURNED TO YOU WITHIN 10 BUSINESS DAYS AFTER THE CONSULTANT RECEIVES YOUR CANCELLATION NOTICE.
TO CANCEL THIS AGREEMENT, A SIGNED AND DATED COPY OF A STATEMENT THAT YOU ARE CANCELING THE AGREEMENT SHOULD BE MAILED (POSTMARKED) OR DELIVERED TO (NAME) AT (ADDRESS) NO LATER THAN MIDNIGHT OF (DATE) .
IMPORTANT: IT IS RECOMMENDED THAT YOU CONTACT YOUR MORTGAGE LENDER OR MORTGAGE SERVICER BEFORE SIGNING THIS AGREEMENT. YOUR LENDER OR SERVICER MAY BE WILLING TO NEGOTIATE A PAYMENT PLAN OR A RESTRUCTURING WITH YOU FREE OF CHARGE.
(d) The inclusion of the statement does not prohibit a mortgage broker, mortgage brokerage business, mortgage lender, or correspondent mortgage lender from giving the homeowner more time to cancel the agreement than is set forth in the statement if all other requirements of this subsection are met.
(e) The person offering or providing the loan modification services must give the borrower a copy of the signed agreement within 3 hours after the borrower signs the agreement.
(3) REMEDIES.–
(a) Without regard to any other remedy or relief to which a person is entitled, anyone aggrieved by a violation of this section may bring an action to obtain a declaratory judgment that an act or practice violates this section and to enjoin a person who has violated, is violating, or is otherwise likely to violate this section.
(b) In any action brought by a person who has suffered a loss as a result of a violation of this section, such person may recover actual damages, plus attorney’s fees and court costs, as follows:
1. In any action brought under this section, upon motion of the party against whom such action is filed alleging that the action is frivolous, without legal or factual merit, or brought for the purpose of harassment, the court may, after hearing evidence as to the necessity therefor, require the party instituting the action to post a bond in the amount that the court finds reasonable to indemnify the defendant for any damages incurred, including reasonable attorney’s fees.
2. In any civil litigation resulting from an act or practice involving a violation of this section, the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, may receive reasonable attorney’s fees and costs from the nonprevailing party.
3. The attorney for the prevailing party shall submit a sworn affidavit of time spent on the case and costs incurred for all the motions, hearings, and appeals to the trial judge who presided over the civil case.
4. The trial judge may award the prevailing party the sum of reasonable costs incurred in the action plus a reasonable legal fee for the hours actually spent on the case as sworn to in an affidavit.
5. Any award of attorney’s fees or costs becomes part of the judgment and is subject to execution as the law allows.
(c) The provisions of this subsection do not apply to any action initiated by the enforcing authority.
1(4) DEFINITIONS.–As used in this section, the term:
(a) “Borrower” means a person who is obligated to repay a mortgage loan and includes, but is not limited to, a coborrower, cosignor, or guarantor.
(b) “Loan modification” means a modification to an existing loan. The term does not include a refinancing transaction.
History.–ss. 19, 20, ch. 2009-241.
1Note.–Section 20, ch. 2009-241, repealed subsection (4) and amended subsections (1) and (2), effective October 1, 2010, to read:
(1) PROHIBITED ACTS.–When offering or providing loan modification services, a loan originator, mortgage broker, or mortgage lender may not:
(a) Engage in or initiate loan modification services without first executing a written agreement for loan modification services with the borrower;
(b) Execute a loan modification without the consent of the borrower after the borrower is made aware of each modified term; or
(c) Solicit, charge, receive, or attempt to collect or secure payment, directly or indirectly, for loan modification services before completing or performing all services included in the agreement for loan modification services. A fee may be charged only if the loan modification results in a material benefit to the borrower. The commission may adopt rules to provide guidance on what constitutes a material benefit to the borrower.
(2) LOAN MODIFICATION AGREEMENT.–
(a) The written agreement for loan modification services must be printed in at least 12-point uppercase type and signed by both parties. The agreement must include the name and address of the person providing loan modification services, the exact nature and specific detail of each service to be provided, the total amount and terms of charges to be paid by the borrower for the services, and the date of the agreement. The date of the agreement may not be earlier than the date the borrower signed the agreement. The mortgage broker or mortgage lender must give the borrower a copy of the agreement to review at least 1 business day before the borrower is to sign the agreement.
(b) The borrower has the right to cancel the written agreement without any penalty or obligation if the borrower cancels the agreement within 3 business days after signing the agreement. The right to cancel may not be waived by the borrower or limited in any manner by the loan originator, mortgage broker, or mortgage lender. If the borrower cancels the agreement, any payments made must be returned to the borrower within 10 business days after receipt of the notice of cancellation.
(c) An agreement for loan modification services must contain, immediately above the signature line, a statement in at least 12-point uppercase type which substantially complies with the following:
BORROWER’S RIGHT OF CANCELLATION
YOU MAY CANCEL THIS AGREEMENT FOR LOAN MODIFICATION SERVICES WITHOUT ANY PENALTY OR OBLIGATION WITHIN 3 BUSINESS DAYS AFTER THE DATE THIS AGREEMENT IS SIGNED BY YOU.
THE LOAN ORIGINATOR, MORTGAGE BROKER, OR MORTGAGE LENDER IS PROHIBITED BY LAW FROM ACCEPTING ANY MONEY, PROPERTY, OR OTHER FORM OF PAYMENT FROM YOU UNTIL ALL PROMISED SERVICES HAVE BEEN COMPLETED. IF FOR ANY REASON YOU HAVE PAID THE CONSULTANT BEFORE CANCELLATION, YOUR PAYMENT MUST BE RETURNED TO YOU WITHIN 10 BUSINESS DAYS AFTER THE CONSULTANT RECEIVES YOUR CANCELLATION NOTICE.
TO CANCEL THIS AGREEMENT, A SIGNED AND DATED COPY OF A STATEMENT THAT YOU ARE CANCELING THE AGREEMENT SHOULD BE MAILED (POSTMARKED) OR DELIVERED TO (NAME) AT (ADDRESS) NO LATER THAN MIDNIGHT OF (DATE) .
IMPORTANT: IT IS RECOMMENDED THAT YOU CONTACT YOUR MORTGAGE LENDER OR MORTGAGE SERVICER BEFORE SIGNING THIS AGREEMENT. YOUR LENDER OR SERVICER MAY BE WILLING TO NEGOTIATE A PAYMENT PLAN OR A RESTRUCTURING WITH YOU FREE OF CHARGE.
(d) The inclusion of the statement does not prohibit a loan originator, mortgage broker, or mortgage lender from giving the homeowner more time to cancel the agreement than is set forth in the statement if all other requirements of this subsection are met.
(e) The person offering or providing the loan modification services must give the borrower a copy of the signed agreement within 3 hours after the borrower signs the agreement.
494.00115 Exemptions.–
(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).
(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.
History.–s. 4, ch. 2009-241.
494.0031 Licensure as a mortgage brokerage business.–
(1) Each person who acts as a mortgage brokerage business must be licensed under this section unless otherwise exempt from licensure.
(2) Each initial application for a mortgage brokerage business license must be in the form prescribed by rule of the commission. The commission may require each applicant to provide any information reasonably necessary to determine the applicant’s eligibility for licensure. The office shall issue a mortgage brokerage business license to each person who:
(a) Has submitted a completed application form and a nonrefundable application fee of $425. An application is considered received for purposes of s. 120.60 upon receipt of a completed application form as prescribed by commission rule, a nonrefundable application fee of $425, and any other fee prescribed by law.
(b) Has a qualified principal broker pursuant to s. 494.0035.
(c) Has provided a complete set of fingerprints as the commission may require by rule for each officer, director, control person, member, partner, or joint venturer of the applicant and each ultimate equitable owner of a 10-percent or greater interest in the mortgage brokerage business. A fingerprint card submitted to the office must be taken by an authorized law enforcement agency. The office shall submit the fingerprints to the Department of Law Enforcement for state processing, and the Department of Law Enforcement shall forward the fingerprints to the Federal Bureau of Investigation for federal processing. The cost of the fingerprint processing may be borne by the office, the employer, or the person subject to the background check. The Department of Law Enforcement shall submit an invoice to the office for the fingerprints received each month. The office shall screen the background results to determine if the applicant meets licensure requirements.
(d) Has provided information that the commission requires by rule concerning any designated principal mortgage broker; any officer, director, control person, member, partner, or joint venturer of the applicant; or any individual who is the ultimate equitable owner of a 10-percent or greater interest in the mortgage brokerage business. The commission may require information about any such applicant or person, including, but not limited to, his or her full name or other names by which he or she may have been known, age, social security number, qualifications, educational and business history, and disciplinary and criminal history.
(3) Notwithstanding subsection (2), it is a ground for denial of licensure if the applicant; designated principal mortgage broker; any officer, director, control person, member, partner, or joint venturer of the applicant; or any individual person who is the ultimate equitable owner of a 10-percent or greater interest in the mortgage brokerage business has committed any violation specified in ss. 494.001-494.0077 or has pending against him or her in any jurisdiction any criminal prosecution or administrative enforcement action that involves fraud, dishonest dealing, or any other act of moral turpitude.
(4) A mortgage brokerage business or branch office license may be canceled if it was issued through mistake or inadvertence of the office. A notice of cancellation must be issued by the office within 90 days after the issuance of the license. A notice of cancellation is effective upon receipt. The notice of cancellation must provide the applicant with notification of the right to request a hearing within 21 days after the applicant’s receipt of the notice of cancellation. A license must be reinstated if the applicant can demonstrate that the requirements for obtaining the license under this chapter have been satisfied.
History.–ss. 18, 50, ch. 91-245; s. 4, ch. 91-429; s. 8, ch. 95-313; s. 543, ch. 97-103; s. 8, ch. 99-213; s. 527, ch. 2003-261; s. 7, ch. 2006-213; s. 23, ch. 2009-241.
1Note.–
A. Repealed October 1, 2010, by s. 23, ch. 2009-241.
B. Effective September 1, 2010, s. 70(2), ch. 2009-241, provides that “[a]ll mortgage brokerage business licenses issued before October 1, 2010, pursuant to s. 494.0031 or s. 494.0032, Florida Statutes, expire on December 31, 2010. However, if a person holding an active mortgage brokerage business license issued before October 1, 2010, applies for a mortgage broker license through the Nationwide Mortgage Licensing System and Registry between October 1, 2010, and December 31, 2010, the mortgage brokerage business license does not expire until the Office of Financial Regulation approves or denies the mortgage broker license application. A mortgage broker license approved on or after October 1, 2010, is effective until December 31, 2011. Application fees may not be prorated for partial years of licensure.”
Take Care,
Carl
The new Florida law enacted in January 2010 now requires any 3rd party loss mitigation company doing business in Florida to have a loan originators license, Realtor’s license or be an attorney. Make sure if you live in Florida you get licensed because the Attorney General is actively investigating short sale flips and how the loss mitigation, i.e. save your home services, are being proposed to the homeowners.
So to be clear, if you are going to do the loss mitigation on these short sales, then you or your company will either need to be licensed as a Mortgage Broker in Florida or will need to fall into an exception, such as being a loan originator registered in accordance with SAFE MORTGAGE LICENSING ACT OF 2008. As always, I’m not an attorney and always consult one if you have questions, however, this information was provided by a Real Estate attorney I’m associated with in Florida.
The law is posted below.
494.00296 Loan modification.–
1(1) PROHIBITED ACTS.–When offering or providing loan modification services, a mortgage broker, mortgage brokerage business, mortgage lender, or correspondent mortgage lender licensed, or required to be licensed, under ss. 494.001-494.0077 may not:
(a) Engage in or initiate loan modification services without first executing a written agreement for loan modification services with the borrower;
(b) Execute a loan modification without the consent of the borrower after the borrower is made aware of each modified term; or
(c) Solicit, charge, receive, or attempt to collect or secure payment, directly or indirectly, for loan modification services before completing or performing all services included in the agreement for loan modification services. A fee may be charged only if the loan modification results in a material benefit to the borrower. The commission may adopt rules to provide guidance on what constitutes a material benefit to the borrower.
1(2) LOAN MODIFICATION AGREEMENT.–
(a) The written agreement for loan modification services must be printed in at least 12-point uppercase type and signed by both parties. The agreement must include the name and address of the person providing loan modification services, the exact nature and specific detail of each service to be provided, the total amount and terms of charges to be paid by the borrower for the services, and the date of the agreement. The date of the agreement may not be earlier than the date the borrower signed the agreement. The mortgage brokerage business, mortgage lender, or correspondent mortgage lender must give the borrower a copy of the agreement to review at least 1 business day before the borrower is to sign the agreement.
(b) The borrower has the right to cancel the written agreement without any penalty or obligation if the borrower cancels the agreement within 3 business days after signing the agreement. The right to cancel may not be waived by the borrower or limited in any manner by the mortgage broker, mortgage brokerage business, mortgage lender, or correspondent mortgage lender. If the borrower cancels the agreement, any payments made must be returned to the borrower within 10 business days after receipt of the notice of cancellation.
(c) An agreement for loan modification services must contain, immediately above the signature line, a statement in at least 12-point uppercase type which substantially complies with the following:
BORROWER’S RIGHT OF CANCELLATION
YOU MAY CANCEL THIS AGREEMENT FOR LOAN MODIFICATION SERVICES WITHOUT ANY PENALTY OR OBLIGATION WITHIN 3 BUSINESS DAYS AFTER THE DATE THIS AGREEMENT IS SIGNED BY YOU.
THE MORTGAGE BROKER, MORTGAGE BROKERAGE BUSINESS, MORTGAGE LENDER, OR CORRESPONDENT MORTGAGE LENDER IS PROHIBITED BY LAW FROM ACCEPTING ANY MONEY, PROPERTY, OR OTHER FORM OF PAYMENT FROM YOU UNTIL ALL PROMISED SERVICES HAVE BEEN COMPLETED. IF FOR ANY REASON YOU HAVE PAID THE CONSULTANT BEFORE CANCELLATION, YOUR PAYMENT MUST BE RETURNED TO YOU WITHIN 10 BUSINESS DAYS AFTER THE CONSULTANT RECEIVES YOUR CANCELLATION NOTICE.
TO CANCEL THIS AGREEMENT, A SIGNED AND DATED COPY OF A STATEMENT THAT YOU ARE CANCELING THE AGREEMENT SHOULD BE MAILED (POSTMARKED) OR DELIVERED TO (NAME) AT (ADDRESS) NO LATER THAN MIDNIGHT OF (DATE) .
IMPORTANT: IT IS RECOMMENDED THAT YOU CONTACT YOUR MORTGAGE LENDER OR MORTGAGE SERVICER BEFORE SIGNING THIS AGREEMENT. YOUR LENDER OR SERVICER MAY BE WILLING TO NEGOTIATE A PAYMENT PLAN OR A RESTRUCTURING WITH YOU FREE OF CHARGE.
(d) The inclusion of the statement does not prohibit a mortgage broker, mortgage brokerage business, mortgage lender, or correspondent mortgage lender from giving the homeowner more time to cancel the agreement than is set forth in the statement if all other requirements of this subsection are met.
(e) The person offering or providing the loan modification services must give the borrower a copy of the signed agreement within 3 hours after the borrower signs the agreement.
(3) REMEDIES.–
(a) Without regard to any other remedy or relief to which a person is entitled, anyone aggrieved by a violation of this section may bring an action to obtain a declaratory judgment that an act or practice violates this section and to enjoin a person who has violated, is violating, or is otherwise likely to violate this section.
(b) In any action brought by a person who has suffered a loss as a result of a violation of this section, such person may recover actual damages, plus attorney’s fees and court costs, as follows:
1. In any action brought under this section, upon motion of the party against whom such action is filed alleging that the action is frivolous, without legal or factual merit, or brought for the purpose of harassment, the court may, after hearing evidence as to the necessity therefor, require the party instituting the action to post a bond in the amount that the court finds reasonable to indemnify the defendant for any damages incurred, including reasonable attorney’s fees.
2. In any civil litigation resulting from an act or practice involving a violation of this section, the prevailing party, after judgment in the trial court and exhaustion of all appeals, if any, may receive reasonable attorney’s fees and costs from the nonprevailing party.
3. The attorney for the prevailing party shall submit a sworn affidavit of time spent on the case and costs incurred for all the motions, hearings, and appeals to the trial judge who presided over the civil case.
4. The trial judge may award the prevailing party the sum of reasonable costs incurred in the action plus a reasonable legal fee for the hours actually spent on the case as sworn to in an affidavit.
5. Any award of attorney’s fees or costs becomes part of the judgment and is subject to execution as the law allows.
(c) The provisions of this subsection do not apply to any action initiated by the enforcing authority.
1(4) DEFINITIONS.–As used in this section, the term:
(a) “Borrower” means a person who is obligated to repay a mortgage loan and includes, but is not limited to, a coborrower, cosignor, or guarantor.
(b) “Loan modification” means a modification to an existing loan. The term does not include a refinancing transaction.
History.–ss. 19, 20, ch. 2009-241.
1Note.–Section 20, ch. 2009-241, repealed subsection (4) and amended subsections (1) and (2), effective October 1, 2010, to read:
(1) PROHIBITED ACTS.–When offering or providing loan modification services, a loan originator, mortgage broker, or mortgage lender may not:
(a) Engage in or initiate loan modification services without first executing a written agreement for loan modification services with the borrower;
(b) Execute a loan modification without the consent of the borrower after the borrower is made aware of each modified term; or
(c) Solicit, charge, receive, or attempt to collect or secure payment, directly or indirectly, for loan modification services before completing or performing all services included in the agreement for loan modification services. A fee may be charged only if the loan modification results in a material benefit to the borrower. The commission may adopt rules to provide guidance on what constitutes a material benefit to the borrower.
(2) LOAN MODIFICATION AGREEMENT.–
(a) The written agreement for loan modification services must be printed in at least 12-point uppercase type and signed by both parties. The agreement must include the name and address of the person providing loan modification services, the exact nature and specific detail of each service to be provided, the total amount and terms of charges to be paid by the borrower for the services, and the date of the agreement. The date of the agreement may not be earlier than the date the borrower signed the agreement. The mortgage broker or mortgage lender must give the borrower a copy of the agreement to review at least 1 business day before the borrower is to sign the agreement.
(b) The borrower has the right to cancel the written agreement without any penalty or obligation if the borrower cancels the agreement within 3 business days after signing the agreement. The right to cancel may not be waived by the borrower or limited in any manner by the loan originator, mortgage broker, or mortgage lender. If the borrower cancels the agreement, any payments made must be returned to the borrower within 10 business days after receipt of the notice of cancellation.
(c) An agreement for loan modification services must contain, immediately above the signature line, a statement in at least 12-point uppercase type which substantially complies with the following:
BORROWER’S RIGHT OF CANCELLATION
YOU MAY CANCEL THIS AGREEMENT FOR LOAN MODIFICATION SERVICES WITHOUT ANY PENALTY OR OBLIGATION WITHIN 3 BUSINESS DAYS AFTER THE DATE THIS AGREEMENT IS SIGNED BY YOU.
THE LOAN ORIGINATOR, MORTGAGE BROKER, OR MORTGAGE LENDER IS PROHIBITED BY LAW FROM ACCEPTING ANY MONEY, PROPERTY, OR OTHER FORM OF PAYMENT FROM YOU UNTIL ALL PROMISED SERVICES HAVE BEEN COMPLETED. IF FOR ANY REASON YOU HAVE PAID THE CONSULTANT BEFORE CANCELLATION, YOUR PAYMENT MUST BE RETURNED TO YOU WITHIN 10 BUSINESS DAYS AFTER THE CONSULTANT RECEIVES YOUR CANCELLATION NOTICE.
TO CANCEL THIS AGREEMENT, A SIGNED AND DATED COPY OF A STATEMENT THAT YOU ARE CANCELING THE AGREEMENT SHOULD BE MAILED (POSTMARKED) OR DELIVERED TO (NAME) AT (ADDRESS) NO LATER THAN MIDNIGHT OF (DATE) .
IMPORTANT: IT IS RECOMMENDED THAT YOU CONTACT YOUR MORTGAGE LENDER OR MORTGAGE SERVICER BEFORE SIGNING THIS AGREEMENT. YOUR LENDER OR SERVICER MAY BE WILLING TO NEGOTIATE A PAYMENT PLAN OR A RESTRUCTURING WITH YOU FREE OF CHARGE.
(d) The inclusion of the statement does not prohibit a loan originator, mortgage broker, or mortgage lender from giving the homeowner more time to cancel the agreement than is set forth in the statement if all other requirements of this subsection are met.
(e) The person offering or providing the loan modification services must give the borrower a copy of the signed agreement within 3 hours after the borrower signs the agreement.
494.00115 Exemptions.–
(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).
(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.
History.–s. 4, ch. 2009-241.
494.0031 Licensure as a mortgage brokerage business.–
(1) Each person who acts as a mortgage brokerage business must be licensed under this section unless otherwise exempt from licensure.
(2) Each initial application for a mortgage brokerage business license must be in the form prescribed by rule of the commission. The commission may require each applicant to provide any information reasonably necessary to determine the applicant’s eligibility for licensure. The office shall issue a mortgage brokerage business license to each person who:
(a) Has submitted a completed application form and a nonrefundable application fee of $425. An application is considered received for purposes of s. 120.60 upon receipt of a completed application form as prescribed by commission rule, a nonrefundable application fee of $425, and any other fee prescribed by law.
(b) Has a qualified principal broker pursuant to s. 494.0035.
(c) Has provided a complete set of fingerprints as the commission may require by rule for each officer, director, control person, member, partner, or joint venturer of the applicant and each ultimate equitable owner of a 10-percent or greater interest in the mortgage brokerage business. A fingerprint card submitted to the office must be taken by an authorized law enforcement agency. The office shall submit the fingerprints to the Department of Law Enforcement for state processing, and the Department of Law Enforcement shall forward the fingerprints to the Federal Bureau of Investigation for federal processing. The cost of the fingerprint processing may be borne by the office, the employer, or the person subject to the background check. The Department of Law Enforcement shall submit an invoice to the office for the fingerprints received each month. The office shall screen the background results to determine if the applicant meets licensure requirements.
(d) Has provided information that the commission requires by rule concerning any designated principal mortgage broker; any officer, director, control person, member, partner, or joint venturer of the applicant; or any individual who is the ultimate equitable owner of a 10-percent or greater interest in the mortgage brokerage business. The commission may require information about any such applicant or person, including, but not limited to, his or her full name or other names by which he or she may have been known, age, social security number, qualifications, educational and business history, and disciplinary and criminal history.
(3) Notwithstanding subsection (2), it is a ground for denial of licensure if the applicant; designated principal mortgage broker; any officer, director, control person, member, partner, or joint venturer of the applicant; or any individual person who is the ultimate equitable owner of a 10-percent or greater interest in the mortgage brokerage business has committed any violation specified in ss. 494.001-494.0077 or has pending against him or her in any jurisdiction any criminal prosecution or administrative enforcement action that involves fraud, dishonest dealing, or any other act of moral turpitude.
(4) A mortgage brokerage business or branch office license may be canceled if it was issued through mistake or inadvertence of the office. A notice of cancellation must be issued by the office within 90 days after the issuance of the license. A notice of cancellation is effective upon receipt. The notice of cancellation must provide the applicant with notification of the right to request a hearing within 21 days after the applicant’s receipt of the notice of cancellation. A license must be reinstated if the applicant can demonstrate that the requirements for obtaining the license under this chapter have been satisfied.
History.–ss. 18, 50, ch. 91-245; s. 4, ch. 91-429; s. 8, ch. 95-313; s. 543, ch. 97-103; s. 8, ch. 99-213; s. 527, ch. 2003-261; s. 7, ch. 2006-213; s. 23, ch. 2009-241.
1Note.–
A. Repealed October 1, 2010, by s. 23, ch. 2009-241.
B. Effective September 1, 2010, s. 70(2), ch. 2009-241, provides that “[a]ll mortgage brokerage business licenses issued before October 1, 2010, pursuant to s. 494.0031 or s. 494.0032, Florida Statutes, expire on December 31, 2010. However, if a person holding an active mortgage brokerage business license issued before October 1, 2010, applies for a mortgage broker license through the Nationwide Mortgage Licensing System and Registry between October 1, 2010, and December 31, 2010, the mortgage brokerage business license does not expire until the Office of Financial Regulation approves or denies the mortgage broker license application. A mortgage broker license approved on or after October 1, 2010, is effective until December 31, 2011. Application fees may not be prorated for partial years of licensure.”
Take Care,
Carl
