69V-40.001: Definitions
69V-40.008: Fees and Commissions
69V-40.022: Quarterly Report Filing Requirements
69V-40.051: Application Procedure for Mortgage Brokerage Business License
69V-40.100: Application Procedure for Transfer in Ownership or Control of Saving Clause Mortgage Lender
69V-40.200: Application Procedure for Mortgage Lender License
69V-40.220: Application Procedure for Correspondent Mortgage Lender License
69V-40.290: Acts Requiring Licensure as a Mortgage Broker, Mortgage Brokerage Business, Mortgage Lender or Correspondent Mortgage Lender
PURPOSE AND EFFECT: Subsection 69V-40.001(5), F.A.C., is amended to remove an unnecessary definition. The current rule provides that for purposes of Section 494.001(26), F.S., the term “receive” means obtaining possession of money or a negotiable instrument prior to receipt by the lender or investor. The term “received” is not used in Section 494.001(26), F.S. While the term “received” is used in Section 494.001(28), F.S., this definition is unnecessary and could be construed to the limit the statutory definition of the term “service a mortgage loan.” Rule 69V-40.008, F.A.C., is amended to eliminate subsection (8) pertaining to fees that can be charged or collected on a loan modification if the mortgage brokerage business previously brokered the loan. The current rule limiting fees based on whether a mortgage brokerage business previously brokered the mortgage loan is not supported by statutory authority. Rule 69V-40.022, F.A.C., is amended to correct a cross reference to the statute that requires the filing of quarterly reports. Rules 69V-40.051, .100, .200, and .220, F.A.C., are amended to eliminate an exemption from the requirement that all persons who are required to be disclosed on the license application form must file a fingerprint card and biographical form as part of the application process under Chapter 494, F.S. The current exemptions apply to persons who hold an active mortgage broker license. Rule 69V-40.290, F.A.C., is amended to correct a statutory cross-reference.
SUBJECT AREA TO BE ADDRESSED: Mortgage Brokering and Mortgage Lending.
SPECIFIC AUTHORITY: 215.405, 494.0011(2), 494.0031(2) 494.004(7), 494.0061, 494.0062, 494.0065(3), 494.0067 FS.
LAW IMPLEMENTED: 120.60, 120.695, 494.001, 494.00115, 494.0025, 494.0031, 494.0035, 494.004, 494.0041, 494.0042, 494.0043, 494.0061, 494.0062, 494.0065, 494.0067, 494.0072, 943.053 FS.
IF REQUESTED IN WRITING AND NOT DEEMED UNNECESSARY BY THE AGENCY HEAD, A RULE DEVELOPMENT WORKSHOP WILL BE NOTICED IN THE NEXT AVAILABLE FLORIDA ADMINISTRATIVE WEEKLY.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Andrea Moreland, Office of Financial Regulation, The Fletcher Building, Suite 118, 200 E. Gaines Street, Tallahassee, FL 32399-0370, (850)410-9601, andrea.moreland@flofr.com
THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:
69V-40.001 Definitions.
The definitions provided in Section 494.001, F.S., and the following defined terms, shall apply to this rule chapter and shall serve as the Office of Financial Regulation’s interpretation unless the language of the rule indicates to the contrary:
(1) through (4) No change.
(5) For the purposes of subsection 494.001(26), F.S., “receive” means obtaining possession of money or a negotiable instrument prior to receipt by the lender or investor.
(5)(6) For the purposes of subsection 494.0043(1)(a), F.S., when providing an opinion of value of security property for brokering or selling a mortgage loan to a noninstitutional investor, “appraiser” means any person who is licensed, registered or certified in the State of Florida pursuant to the provisions of Chapter 475, F.S.
(6)(7) For purposes of licensing and enforcement actions under Chapter 494, F.S., the phrase “Having a license, or the equivalent, to practice any profession or occupation revoked, suspended, or otherwise acted against . . .” as utilized in subsections 494.0041(2)(i) and 494.0072(2)(i), F.S., is deemed to include state or federal enforcement actions for orders of prohibition or removal of an officer, director, or employee of a state or federal financial institution, or any orders of prohibition or orders of removal, or any combination thereof, entered against or stipulated to by officers, directors, and employees of state or federal financial institutions.
(7)(8) For the purpose of subsection 494.006(2)(a), F.S., “employed” or “employee” means a natural person engaged in the service of another for a salary or wages. Such person is subject to withholding, FICA, and other lawful deductions by the employer as a condition of employment and is subjected to the right of the employer to direct and control the actions of the employee.
(8)(9) “Independent contractor” means a person who contracts with another to perform a service where this person is not directed or controlled by the other person or is required to maintain separate records regarding his contract for services in respect to, but not limited to, accounting and taxes.
(9)(10) “Notice of noncompliance” means a notification by the Office of Financial Regulation that a person has violated an administrative rule which is classified as a minor offense as set forth in Section 120.695, F.S. The mandatory fine that is associated with the administrative rule is waived for the first offense.
(10)(11) For purposes of Rules 69V-40.100, 69V-40.200, 69V-40.220, and 69V-40.242, F.A.C.:
(a) “Operate” shall mean to exercise power or influence over the business operations.
(b) “Exercise” shall mean the discharge of an official duty or function.
(c) “Control” shall mean to have the influence and power to make decisions for the business.
Rulemaking Specific Authority 494.0011(2) FS. Law Implemented 120.695, 494.001, 494.004(1), 494.0041(2)(a), (i), 494.0043, 494.0061(2), (8), 494.0062(2), (11), 494.0067(5), 494.0072(2)(i) FS. History–Revised 9-23-65, Renumbered from 3-3.01 to 3D-40.01 on 9-8-75, Formerly 3D-40.01, Amended 12-7-89, 6-23-91, 8-24-92, 2-11-93, 11-17-93, 4-14-94, 9-7-94, 5-14-95, 7-25-96, 12-12-99, 12-8-02, Formerly 3D-40.001, Amended 3-23-08,________.
69V-40.008 Fees and Commissions.
(1) through (7) No change.
(8) If a mortgage brokerage business brokers an extension of the maturity date of the unpaid portion of an existing mortgage loan previously brokered by him, the total fees and commissions he may charge or receive on both the original transaction and the extension may not exceed in the aggregate the amount of costs and expenses permitted in subsection 494.0042(2), F.S.
(8)(9) No person shall charge or exact, directly or indirectly, from the mortgagor or lender a fee or commission in excess of the maximum fees or commissions as set forth herein. All fees paid to or on behalf of the licensee including, but not limited to, bonus plans, advertisement allowances, incentive plans, kick-backs, premiums or discounts whether paid directly or indirectly or to an affiliate firm in which the licensee has an ownership interest, must be included in determining the maximum brokerage fees.
(9)(10) All brokerage fees to other mortgage brokerage businesses disbursed from the loan proceeds shown on the closing statement shall reflect the name of each mortgage brokerage business or co-brokering mortgage brokerage business paid.
Rulemaking Specific Authority 494.0011(2) FS. Law Implemented 494.0025, 494.0041, 494.0042 FS. History–Revised 9-23-65, Amended 9-1-67, 5-8-68, Renumbered from 3-3.08 to 3D-40.08 on 9-8-75, Amended 9-29-75, 4-27-77, Joint Administrative Procedures Committee Objection Filed–See FAW Vol. 2, No. 19, May 7, 1976, Joint Administrative Procedures Committee Objection Withdrawn– See FAW Vol. 3, No. 30, July 29, 1977, Amended 7-6-78, 2-5-80, 8-17-83, Formerly 3D-40.08, Amended 1-5-87, 5-24-89, 8-24-92, Formerly 3D-40.008, Amended 3-23-08,________.
69V-40.022 Quarterly Report Filing Requirements.
(1) Each mortgage brokerage business, correspondent mortgage lender, mortgage lender, and mortgage lender licensed pursuant to the savings clause, that was licensed with the Office of Financial Regulation on or before March 31, 2000, shall file an initial quarterly report on or before April 30, 2000 as required by subsections 494.004(7) 494.004(6) and 494.0067(9), F.S. Thereafter, a quarterly report shall be filed as required by subsections 494.004(7) 494.004(6) and 494.0067(9), F.S., within 30 days of the end of each calendar quarter.
(2) Each mortgage brokerage business, correspondent mortgage lender, mortgage lender and mortgage lender licensed pursuant to the savings clause, that becomes licensed with the Office of Financial Regulation after March 31, 2000, shall file an initial quarterly report within 30 days of the end of the calendar quarter in which the original license is issued, and thereafter shall file a quarterly report as required by subsections 494.004(7) 494.004(6) and 494.0067(9), F.S.
(3) through (4) No change.
(5) If a correct initial report or correct quarterly report thereafter is not timely received (incidental and isolated clerical errors or omissions shall not be considered a violation) as required by subsection 494.004(7) 494.004(6), F.S., or subsection 494.0067(9), F.S., the penalty shall be the issuance of a “notice of noncompliance” for the first offense. Any subsequent finding of a violation of this rule shall be a fine of $500. The penalty for any intentional violations of this rule shall be a fine of $500 and suspension of the license.
(6) Form OFR-494-08 is incorporated by reference in subsection 69V-40.002(1), F.A.C.
Rulemaking Specific Authority 494.0011(2), 494.004(7), 494.0067(9) FS. Law Implemented 494.0011(2), 494.004(7), 494.0067(9) FS. History–New 11-7-00, Formerly 3D-40.022, Amended 3-23-08,________.
69V-40.051 Application Procedure for Mortgage Brokerage Business License.
(1) No change.
(2) Each ultimate equitable owner of 10% or greater interest, each chief executive officer, each chief financial officer, chief operations officer, chief legal officer, chief compliance officer, control person, member, partner, joint venturer, and each director of an entity applying for licensure as a mortgage brokerage business, shall submit a completed fingerprint card (FL921050Z) and Biographical Summary from Form OFR-494-01, to the Office of Financial Regulation along with a $43.25 nonrefundable processing fee.
(a) If any ultimate equitable owner of 10% or greater interest, chief executive officer, chief financial officer, chief operations officer, chief legal officer, chief compliance officer, director, control person, member, partner, joint venturer, of the applicant holds an active mortgage broker’s license with the Office of Financial Regulation, they are exempt from the provisions of subsection (2).
(b) If an entity holds an active license under Chapter 494, F.S., with the Office of Financial Regulation, it is exempt from the provisions of subsection (2) when it applies for a different type of license under Chapter 494, F.S., unless there has been a change of control of 25% or more of the ownership interest or in controlling interest since the time its initial license was approved by the Office of Financial Regulation.
(c) Any claim to any of the above exemptions shall be supported by attaching evidence of the exemption with the application for license.
(3) through (8) No change.
Rulemaking Specific Authority 215.405, 494.0011(2), 494.0031(2) FS. Law Implemented 494.0031, 494.0035, 494.004(6), 943.053 FS. History–New 10-30-86, Amended 1-30-89, 11-28-89, 10-1-91, 6-6-93, 5-14-95, 7-14-96, 11-24-97, 8-22-99, 12-12-99, 12-9-01, 12-11-03, Formerly 3D-40.051, Amended 3-23-08, 12-25-08,________.
69V-40.100 Application Procedure for Transfer in Ownership or Control of Saving Clause Mortgage Lender.
(1) No change.
(2) Each ultimate equitable owner of 10% or greater interest, principal representative, chief executive officer, chief financial officer, chief operations officer, chief legal officer, chief compliance officer, director, control person, member, partner, or joint venturer of an entity applying for licensure as a mortgage lender licensed pursuant to the savings clause, shall submit a completed fingerprint card (FL921050Z) and Biographical Summary from Form OFR-494-01, to the Office of Financial Regulation along with a $43.25 nonrefundable processing fee.
(a) If the individual owner, director, chief executive officer, chief financial officer, chief operations officer, chief legal officer, chief compliance officer, principal representative, control person, member, partner, or joint venturer holds an active mortgage broker’s license with the Office of Financial Regulation, he or she is exempt from the provisions of subsection (2).
(b) If an entity holds an active license under Chapter 494, F.S., with the Office of Financial Regulation, it is exempt from the provisions of subsection (2) when it applies for a different type of license under Chapter 494, F.S., unless there has been a change of control of 25% or more of the ownership or in controlling interest since the time its initial license was approved by the Office of Financial Regulation.
(c) Any claim to any of the above exemptions shall be supported by attaching evidence of the exemption with the application for license.
(3) through (7) No change.
Rulemaking Specific Authority 494.0011(2), 494.0065(3) FS. Law Implemented 120.60, 494.001(30), 494.0061(1), (3), (8), 494.0065, 494.0067(3), (4) FS. History–New 8-24-93, Amended 9-3-95, 8-22-99, 12-12-99, 12-9-01, 12-8-02, 12-11-03, Formerly 3D-40.100, Amended 3-23-08, 12-25-08, 3-4-09,________.
69V-40.200 Application Procedure for Mortgage Lender License.
(1) No change.
(2) Each ultimate equitable owner of 10% or greater interest, principal representative, chief executive officer, chief financial officer, chief operations officer, chief legal officer, chief compliance officer, control person, member, partner, joint venturer, and each director of an entity applying for licensure as a mortgage lender, shall submit a completed fingerprint card (FL921050Z) and Biographical Summary from Form OFR-494-01, to the Office of Financial Regulation along with a $43.25 nonrefundable processing fee.
(a) If any ultimate equitable owner of 10% or greater interest, principal representative, chief executive officer, chief financial officer, chief operations officer, chief legal officer, chief compliance officer, control person, member, partner, joint venturer, or director of the applicant holds an active mortgage broker’s license with the Office of Financial Regulation, they are exempt from the provisions of subsection (2).
(b) If an entity holds an active license under Chapter 494, F.S., with the Office of Financial Regulation, it is exempt from the provisions of subsection (2) when it applies for a different type of license under Chapter 494, F.S., unless there has been a change of control of 25% or more of the ownership or in controlling interest since the time its initial license was approved by the Office of Financial Regulation.
(c) Any claim to any of the above exemptions shall be supported by attaching evidence of the exemption with the application for license.
(3) through (8) No change.
Rulemaking Specific Authority 215.405, 494.0011(2), 494.0061(3) FS. Law Implemented 494.0061, 494.0067(4) FS. History–New 10-1-91, Amended 6-6-93, 5-14-95, 9-3-95, 11-5-95, 7-14-96, 11-24-97, 8-22-99, 12-12-99, 12-9-01, 12-8-02, 12-11-03, Formerly 3D-40.200, Amended 3-23-08, 12-25-08, 3-4-09,________.
69V-40.220 Application Procedure for Correspondent Mortgage Lender License.
(1) No change.
(2) Each ultimate equitable owner of 10% or greater interest, principal representative, each chief executive officer, each chief financial officer, chief operations officer, chief legal officer, chief compliance officer, control person, member, partner, joint venturer, and each director of an entity applying for licensure as a correspondent mortgage lender, shall submit a completed fingerprint card (FL921050Z) and Biographical Summary from Form OFR-494-01, to the Office of Financial Regulation along with a $43.25 nonrefundable processing fee.
(a) If the individual principal representative, owner, director, or chief executive officer holds an active mortgage broker’s license with the Office of Financial Regulation, they are exempt from the provisions of subsection (2).
(b) If an entity holds an active license under Chapter 494, F.S., with the Office of Financial Regulation, it is exempt from the provisions of subsection (2) when it applies for a different type of license under Chapter 494, F.S., unless there has been a change of control of 25% or more of the ownership or in controlling interest since the time its initial license was approved by the Office of Financial Regulation.
(c) Any claim to any of the above exemptions shall be supported by attaching evidence of the exemption with the application for license.
(3) through (8) No change.
Rulemaking Specific Authority 215.405, 494.0011(2), 494.0062(3), (8). (11), (13) FS. Law Implemented 494.0062, 494.0067(4) FS. History–New 10-1-91, Amended 6-6-93, 5-14-95, 9-3-95, 11-5-95, 7-14-96, 11-24-97, 8-22-99, 12-12-99, 12-9-01, 12-8-02, 12-11-03, Formerly 3D-40.220, Amended 3-23-08, 12-25-08, 3-4-09,________.
69V-40.290 Acts Requiring Licensure as a Mortgage Broker, Mortgage Brokerage Business, Mortgage Lender or Correspondent Mortgage Lender.
(1) No change.
(2) The phrase “holds himself out to the public in any manner” in Sections 494.00115(2)(e) and (f) subsection 494.006(1)(i) and (j), F.S., means that any person who does any of the following, but not limited to, is not exempt from mortgage lender or correspondent mortgage lender license requirements:
(a) Is a business entity which makes, sells, or offers to sell, mortgage loans to noninstitutional investors;
(b) Is employed or associated with a business where mortgage lending or mortgage brokering services may be received;
(c) Has placed himself in a position where he is likely to come into contact with borrowers or investors or buyers or sellers of mortgage loans;
(d) Advertises, related to mortgage loans, by soliciting for borrowers, lenders or purchasers in a telephone directory;
(e) Advertises in newspapers, magazines, or the like in a manner which would lead the reader to believe the person was in the business of buying, making or selling mortgage loans. For example, placing an advertisement which states “I buy and sell mortgages” would lead the public to believe the person was in the mortgage lending business; or
(f) Solicits in a manner which would lead the reader to believe the person was in the business of buying, making or selling mortgage loans.
Rulemaking Specific Authority 494.0011(2) FS. Law Implemented 494.001, 494.00115(2) 494.006(1) FS. History–New 1-10-93, Amended 12-12-99, Formerly 3D-40.290, Amended_______.