October 19, 2018
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Senate Bill 0352

Senate Bill sb0352

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2007                                   SB 352

    By Senator Margolis





    35-399-07                                               See HB

  1                      A bill to be entitled

  2         An act relating to residential mortgage fraud;

  3         creating s. 817.545, F.S.; providing a short

  4         title; providing legislative findings and

  5         declarations; providing definitions; specifying

  6         criteria for committing the offense of

  7         residential mortgage fraud; providing an

  8         exception; providing for venue of the committed

  9         offense; providing penalties; authorizing

10         certain investigative agencies to investigate

11         and prosecute cases of residential mortgage

12         fraud; providing for civil forfeiture of

13         property under certain circumstances;

14         reenacting s. 895.02(1)(a), F.S., relating to

15         the definition of "racketeering activity," for

16         purposes of incorporating the creation of s.

17         817.545, F.S., in a reference to ch. 817, F.S.;

18         providing an effective date.

19  

20  Be It Enacted by the Legislature of the State of Florida:

21  

22         Section 1.  Section 817.545, Florida Statutes, is

23  created to read:

24         817.545  Residential mortgage fraud.--

25         (1)  This section may be cited as the "Florida

26  Residential Mortgage Fraud Act."

27         (2)  The Legislature finds and declares that fraud

28  involving residential mortgages is at an all-time high in the

29  United States and in this state. Mortgage lending institutions

30  and borrowers have suffered hundreds of millions of dollars in

31  losses due to residential mortgage fraud. Fraudulently

                                  1

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    Florida Senate - 2007                                   SB 352
    35-399-07                                               See HB




 1  inflated property values in neighborhoods have resulted in

 2  substantial increases in property taxes and have threatened

 3  the viability of many communities. The Legislature therefore

 4  concludes that for the protection of the general public, and

 5  particularly for the protection of borrowers, homeowners,

 6  lending institutions, and the integrity of the mortgage

 7  lending process, residential mortgage fraud should be made

 8  unlawful and subject to the provisions of chapter 895.

 9         (3)  For purposes of this section:

10         (a)  "Mortgage lending process" means the process

11  through which a person seeks or obtains a residential mortgage

12  loan, including, but not limited to, solicitation,

13  application, or origination, negotiation of terms, third-party

14  provider services, underwriting, signing and closing, and

15  funding of the loan. Documents involved in the mortgage

16  lending process include, but are not limited to, uniform

17  residential loan applications or other loan applications;

18  appraisal reports; HUD-1 settlement statements; supporting

19  personal documentation for loan applications such as W-2

20  forms, verifications of income and employment, bank

21  statements, tax returns, and payroll stubs; and any required

22  disclosures.

23         (b)  "Person" means a natural person, corporation,

24  company, limited liability company, partnership, trustee,

25  association, or any other entity.

26         (c)  "Residential mortgage fraud" means one or more

27  misstatements, misrepresentations, or omissions made during a

28  mortgage lending process that involves residential property.

29         (d)  "Residential mortgage loan" means a loan or

30  agreement to extend credit made to a person, which loan is

31  secured by a deed to secure debt, security deed, mortgage,

                                  2

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    Florida Senate - 2007                                   SB 352
    35-399-07                                               See HB




 1  security interest, deed of trust, or other document

 2  representing a security interest or lien upon any interest in

 3  one-family to four-family residential property located in this

 4  state, including the renewal or refinancing of any such loan.

 5         (4)  A person commits the offense of residential

 6  mortgage fraud if, with the intent to defraud, the person:

 7         (a)  Knowingly makes any deliberate misstatement,

 8  misrepresentation, or omission during the mortgage lending

 9  process with the intention that the misstatement,

10  misrepresentation, or omission will be relied on by a mortgage

11  lender, borrower, or any other party to the mortgage lending

12  process;

13         (b)  Knowingly uses or facilitates the use of any

14  deliberate misstatement, misrepresentation, or omission,

15  knowing the misstatement, misrepresentation, or omission

16  contains a misstatement, misrepresentation, or omission,

17  during the mortgage lending process with the intention that

18  the misstatement, misrepresentation, or omission will be

19  relied on by a mortgage lender, borrower, or any other party

20  to the mortgage lending process;

21         (c)  Receives any proceeds or any other funds in

22  connection with a residential mortgage closing that the person

23  knew resulted from a violation of paragraph (a) or paragraph

24  (b);

25         (d)  Conspires to violate any of the provisions of

26  paragraph (a), paragraph (b), or paragraph (c); or

27         (e)  Files or causes to be filed with the clerk of the

28  circuit court for any county of this state any document the

29  person knows to contain a deliberate misstatement,

30  misrepresentation, or omission.

31  

                                  3

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    Florida Senate - 2007                                   SB 352
    35-399-07                                               See HB




 1  An offense of residential mortgage fraud shall not be

 2  predicated solely upon information lawfully disclosed under

 3  federal disclosure laws, regulations, and interpretations

 4  related to the mortgage lending process.

 5         (5)  For the purpose of venue under this section, any

 6  violation of this section shall be considered to have been

 7  committed:

 8         (a)  In the county in which the residential property

 9  for which a mortgage loan is being sought is located;

10         (b)  In any county in which any act was performed in

11  furtherance of the violation;

12         (c)  In any county in which any person alleged to have

13  violated this section had control or possession of any

14  proceeds of the violation;

15         (d)  If a closing occurred, in any county in which the

16  closing occurred; or

17         (e)  In any county in which a document containing a

18  deliberate misstatement, misrepresentation, or omission is

19  filed with the clerk of the circuit court for such county.

20         (6)(a)  Any person who violates this section commits a

21  felony of the third degree, punishable as provided in s.

22  775.082, s. 775.083, or s. 775.084.

23         (b)  Any person who engages in a pattern of residential

24  mortgage fraud or a conspiracy or endeavor to engage or

25  participate in a pattern of residential mortgage fraud in

26  violation of this section commits a felony of the second

27  degree, punishable as provided in s. 775.082, s. 775.083, or

28  s. 775.084. For purposes of this paragraph, the term "pattern

29  of residential mortgage fraud" means one or more

30  misstatements, misrepresentations, or omissions made during

31  the mortgage lending process which involve two or more

                                  4

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    Florida Senate - 2007                                   SB 352
    35-399-07                                               See HB




 1  residential properties and which have the same or similar

 2  intents, results, accomplices, victims, or methods of

 3  commission or otherwise are interrelated by distinguishing

 4  characteristics.

 5         (c)  Each residential property transaction involving a

 6  violation of this section constitutes a separate offense and

 7  shall not be combined with any other offense.

 8         (7)  An investigative agency as defined in s. 895.02

 9  may conduct the criminal investigation and prosecution of all

10  cases of residential mortgage fraud under this section.

11         (8)  All real and personal property of every kind used

12  or intended for use in the course of, derived from, or

13  realized through a violation of this section is subject to

14  civil forfeiture to the state, as provided in s. 895.05. An

15  investigative agency as defined in s. 895.02 may commence

16  forfeiture proceedings under this section pursuant to s.

17  895.05.

18         Section 2.  To incorporate the provisions of section

19  817.545, Florida Statutes, as created by this act, paragraph

20  (a) of subsection (1) of section 895.02, Florida Statutes, is

21  reenacted to read:

22         895.02  Definitions.--As used in ss. 895.01-895.08, the

23  term:

24         (1)  "Racketeering activity" means to commit, to

25  attempt to commit, to conspire to commit, or to solicit,

26  coerce, or intimidate another person to commit:

27         (a)  Any crime that is chargeable by indictment or

28  information under the following provisions of the Florida

29  Statutes:

30         1.  Section 210.18, relating to evasion of payment of

31  cigarette taxes.

                                  5

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    Florida Senate - 2007                                   SB 352
    35-399-07                                               See HB




 1         2.  Section 403.727(3)(b), relating to environmental

 2  control.

 3         3.  Section 409.920 or s. 409.9201, relating to

 4  Medicaid fraud.

 5         4.  Section 414.39, relating to public assistance

 6  fraud.

 7         5.  Section 440.105 or s. 440.106, relating to workers'

 8  compensation.

 9         6.  Section 443.071(4), relating to creation of a

10  fictitious employer scheme to commit unemployment compensation

11  fraud.

12         7.  Section 465.0161, relating to distribution of

13  medicinal drugs without a permit as an Internet pharmacy.

14         8.  Sections 499.0051, 499.0052, 499.00535, 499.00545,

15  and 499.0691, relating to crimes involving contraband and

16  adulterated drugs.

17         9.  Part IV of chapter 501, relating to telemarketing.

18         10.  Chapter 517, relating to sale of securities and

19  investor protection.

20         11.  Section 550.235, s. 550.3551, or s. 550.3605,

21  relating to dogracing and horseracing.

22         12.  Chapter 550, relating to jai alai frontons.

23         13.  Section 551.109, relating to slot machine gaming.

24         14.  Chapter 552, relating to the manufacture,

25  distribution, and use of explosives.

26         15.  Chapter 560, relating to money transmitters, if

27  the violation is punishable as a felony.

28         16.  Chapter 562, relating to beverage law enforcement.

29         17.  Section 624.401, relating to transacting insurance

30  without a certificate of authority, s. 624.437(4)(c)1.,

31  relating to operating an unauthorized multiple-employer

                                  6

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    Florida Senate - 2007                                   SB 352
    35-399-07                                               See HB




 1  welfare arrangement, or s. 626.902(1)(b), relating to

 2  representing or aiding an unauthorized insurer.

 3         18.  Section 655.50, relating to reports of currency

 4  transactions, when such violation is punishable as a felony.

 5         19.  Chapter 687, relating to interest and usurious

 6  practices.

 7         20.  Section 721.08, s. 721.09, or s. 721.13, relating

 8  to real estate timeshare plans.

 9         21.  Chapter 782, relating to homicide.

10         22.  Chapter 784, relating to assault and battery.

11         23.  Chapter 787, relating to kidnapping or human

12  trafficking.

13         24.  Chapter 790, relating to weapons and firearms.

14         25.  Section 796.03, s. 796.035, s. 796.04, s. 796.045,

15  s. 796.05, or s. 796.07, relating to prostitution and sex

16  trafficking.

17         26.  Chapter 806, relating to arson.

18         27.  Section 810.02(2)(c), relating to specified

19  burglary of a dwelling or structure.

20         28.  Chapter 812, relating to theft, robbery, and

21  related crimes.

22         29.  Chapter 815, relating to computer-related crimes.

23         30.  Chapter 817, relating to fraudulent practices,

24  false pretenses, fraud generally, and credit card crimes.

25         31.  Chapter 825, relating to abuse, neglect, or

26  exploitation of an elderly person or disabled adult.

27         32.  Section 827.071, relating to commercial sexual

28  exploitation of children.

29         33.  Chapter 831, relating to forgery and

30  counterfeiting.

31  

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    Florida Senate - 2007                                   SB 352
    35-399-07                                               See HB




 1         34.  Chapter 832, relating to issuance of worthless

 2  checks and drafts.

 3         35.  Section 836.05, relating to extortion.

 4         36.  Chapter 837, relating to perjury.

 5         37.  Chapter 838, relating to bribery and misuse of

 6  public office.

 7         38.  Chapter 843, relating to obstruction of justice.

 8         39.  Section 847.011, s. 847.012, s. 847.013, s.

 9  847.06, or s. 847.07, relating to obscene literature and

10  profanity.

11         40.  Section 849.09, s. 849.14, s. 849.15, s. 849.23,

12  or s. 849.25, relating to gambling.

13         41.  Chapter 874, relating to criminal street gangs.

14         42.  Chapter 893, relating to drug abuse prevention and

15  control.

16         43.  Chapter 896, relating to offenses related to

17  financial transactions.

18         44.  Sections 914.22 and 914.23, relating to tampering

19  with a witness, victim, or informant, and retaliation against

20  a witness, victim, or informant.

21         45.  Sections 918.12 and 918.13, relating to tampering

22  with jurors and evidence.

23         Section 3.  This act shall take effect October 1, 2007.

24  

25  

26  

27  

28  

29  

30  

31  

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