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The Florida Statutes

The 2006 Florida Statutes

Title XXXIII
REGULATION OF TRADE, COMMERCE, INVESTMENTS, AND SOLICITATIONS
Chapter 494
MORTGAGE BROKERAGE AND MORTGAGE LENDING
View Entire Chapter
Section 494.001, Florida Statutes 2006

494.001  Definitions.--As used in ss. 494.001-494.0077, the term:

(1)  "Act as a correspondent mortgage lender" means to make a mortgage loan.

(2)  "Act as a loan originator" means being employed by a mortgage lender or correspondent mortgage lender, for compensation or gain or in the expectation of compensation or gain, to negotiate or offer to negotiate the making of a mortgage loan. A person whose activities are ministerial and clerical, which may include quoting available interest rates or loan terms and conditions, is not acting as a loan originator.

(3)  "Act as a mortgage broker" means, for compensation or gain, or in the expectation of compensation or gain, either directly or indirectly, accepting or offering to accept an application for a mortgage loan, soliciting or offering to solicit a mortgage loan on behalf of a borrower, negotiating or offering to negotiate the terms or conditions of a mortgage loan on behalf of a lender, or negotiating or offering to negotiate the sale of an existing mortgage loan to a noninstitutional investor. An employee whose activities are ministerial and clerical, which may include quoting available interest rates or loan terms and conditions, is not acting as a mortgage broker.

(4)  "Act as a mortgage lender" means to make a mortgage loan or to service a mortgage loan for others or, for compensation or gain, or in the expectation of compensation or gain, either directly or indirectly, to sell or offer to sell a mortgage loan to a noninstitutional investor.

(5)  "Associate" means a person required to be licensed as a mortgage broker under this chapter who is employed by or acting as an independent contractor for a mortgage brokerage business or a person acting as an independent contractor for a mortgage lender or correspondent mortgage lender. The use of the term associate, in contexts other than in the administration of ss. 494.003-494.0077, shall not be construed to impose or effect the common-law or statutory liability of the employer.

(6)  "Branch broker" means the licensee in charge of, and responsible for, the operation of a branch office of a mortgage brokerage business.

(7)  "Branch office" means a location, other than a licensee'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 suggest that mortgage loans are originated, negotiated, funded, or serviced; or

(c)  Which, due to the actions of any employee or associate of the licensee, may be construed by the public as a branch office of the licensee where mortgage loans are originated, negotiated, funded, or serviced.

(8)  "Commission" means the Financial Services Commission.

(9)  "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. A person is presumed to control a company if, with respect to a particular company, that person:

(a)  Is a director, general partner, or officer exercising executive responsibility or having similar status or functions;

(b)  Directly or indirectly may vote 10 percent or more of a class of voting securities or sell or direct the sale of 10 percent or more of a class of voting securities; or

(c)  In the case of a partnership, may receive upon dissolution or has contributed 10 percent or more of the capital.

(10)  "Office" means the Office of Financial Regulation of the commission.

(11)  "Employed" means engaged in the service of another for salary or wages subject to withholding, FICA, or other lawful deductions by the employer as a condition of employment.

(12)  "Employee" means a natural person who is employed and who is subject to the right of the employer to direct and control the actions of the employee.

(13)  "Good standing" means that the registrant or licensee, or a subsidiary or affiliate thereof, is not, at the time of application, being penalized for one or more of the following disciplinary actions by a licensing authority of any state, territory, or country:

(a)  Revocation of a license or registration.

(b)  Suspension of a license or registration.

(c)  Probation of a license or registration for an offense involving fraud, dishonest dealing, or an act of moral turpitude.

(14)  "Institutional investor" means a state or national bank, state or federal savings and loan association or savings bank, real estate investment trust, insurance company, real estate company, accredited investor as defined in 17 C.F.R. ss. 230.501 et seq., business licensed under ss. 494.001-494.0077, 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.

(15)  "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.

(16)  "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 and/or specific number of discount points, if the loan is approved and closed within the stated period of time.

(17)  "Make a mortgage loan" means to close a mortgage loan in a person's name or to advance funds, offer to advance funds, or make a commitment to advance funds to an applicant for a mortgage loan.

(18)  "Mortgage brokerage fee" means a fee received for acting as a mortgage broker.

(19)  "Mortgage brokerage business" means a person acting as a mortgage broker.

(20)  "Mortgage loan" means any:

(a)  Residential mortgage loan;

(b)  Loan on commercial real property if the borrower is a natural person 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 a natural person or the lender is a noninstitutional investor.

(21)  "Net worth" means total assets minus total liabilities pursuant to generally accepted accounting principles.

(22)  "Noninstitutional investor" means an investor other than an institutional investor.

(23)  "Nonresidential mortgage loan" means a mortgage loan other than a residential mortgage loan.

(24)  "Person" means an individual, partnership, corporation, association, or other group, however organized.

(25)  "Principal broker" means a licensee in charge of, and responsible for, the operation of the principal place of business and all branch brokers.

(26)  "Principal place of business" means a licensee's primary business office the street address or physical location of which is designated on the application for licensure or any amendment to such application.

(27)  "Residential mortgage loan" means any mortgage or other security instrument secured by improved real property consisting of no more than four dwelling units.

(28)  "Service a mortgage loan" means to receive or cause to be received or transferred for another installment payments of principal, interest, or other payments pursuant to a mortgage loan.

(29)  "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 no later than 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 no later than 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.

(30)  "Ultimate equitable owner" means a natural person 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 such natural person owns or controls such ownership interest through one or more natural persons 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.

(31)  "Principal representative" means an individual who operates the business operations of a licensee under part III.

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.

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