09 LC 35
1117
House
Bill 42
By:
Representative Mitchell of the
88th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Article 5 of Chapter 8 of Title 16 of the Official Code of Georgia
Annotated, relating to residential mortgage fraud, so as to modify certain
provisions relating to the offense of residential mortgage fraud; to provide for
legislative intent; to provide for definitions; to include in the criminal
offense of residential mortgage fraud an act of fraud committed upon homeowners
during or threatened with foreclosure; to provide for related matters; to
provide for applicability and an effective date; to repeal conflicting laws; and
for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
The
General Assembly finds that the activity of foreclosure predators is ever
increasing as more and more Americans face the tragedy of losing their homes in
foreclosure. These predators take advantage of homeowners facing economic
crisis and personal hardship. Foreclosure predators make fraudulent promises to
Georgia's most economically vulnerable, claiming to be able to stop the
foreclosure process when there is no reasonable basis for such a claim. These
predators use false claims to take money from those least likely to have extra
funds. A need exists to protect individuals experiencing this frightening
process so that they are not taken advantage of by foreclosure predators.
Therefore, the General Assembly concludes that foreclosure scams should be
treated under Georgia law as a criminal offense.
SECTION
2.
Article
5 of Chapter 8 of Title 16 of the Official Code of Georgia Annotated, relating
to residential mortgage fraud, is amended by revising Code Section 16-8-101,
relating to definitions, as follows:
"16-8-101.
As
used in this article, the term:
(1)
'Mortgage foreclosure process' means the process by which a person's ownership
interest in his or her primary residence is foreclosed on or threatened to be
foreclosed on as provided for in Article 7 of Chapter 14 of Title
44.
(1)(2)
'Mortgage lending process' means the process through which a person seeks or
obtains a residential mortgage
loan,
including, but not limited to, solicitation, application, or origination,
negotiation of terms, third-party provider services, underwriting, signing and
closing, and funding of the loan. Documents involved in the mortgage lending
process include, but are not limited to, uniform residential loan applications
or other loan applications; appraisal reports; HUD-1 settlement statements;
supporting personal documentation for loan applications such as W-2 forms,
verifications of income and employment, bank statements, tax returns, and
payroll stubs; and any required disclosures.
(2)(3)
'Pattern of residential mortgage fraud' means one or more misstatements,
misrepresentations, or omissions made during the mortgage lending process
or during the
mortgage foreclosure process that involve
two or more residential properties, which have the same or similar intents,
results, accomplices, victims, or methods of commission or otherwise are
interrelated by distinguishing characteristics.
(3)(4)
'Person' means a natural person, corporation, company, limited liability
company, partnership, trustee, association, or any other entity.
(4)(5)
'Residential mortgage loan' means a loan or agreement to extend credit made to a
person, which loan is secured by a deed to secure debt, security deed, mortgage,
security interest, deed of trust, or other document representing a security
interest or lien upon any interest in one-to-four family residential property
located in
Georgia,
including the renewal or refinancing of any such loan."
SECTION
3.
Said
article is further amended by revising Code Section 16-8-102, relating to
offense of residential mortgage fraud, as follows:
"16-8-102.
A
person commits the offense of residential mortgage fraud when, with the intent
to defraud, such person:
(1)
Knowingly makes any deliberate misstatement, misrepresentation, or omission
during the mortgage lending process with the intention that it be relied on by a
mortgage lender, borrower, or any other party to the mortgage lending process;
(2)
Knowingly uses or facilitates the use of any deliberate misstatement,
misrepresentation, or omission, knowing the same to contain a misstatement,
misrepresentation, or omission, during the mortgage lending process with the
intention that it be relied on by a mortgage lender, borrower, or any other
party to the mortgage lending process;
(3)
Receives any proceeds or any other funds in connection with a residential
mortgage closing that such person knew resulted from a violation of paragraph
(1) or (2) of this Code section;
(4)
Conspires to violate any of the provisions of paragraph (1), (2),
or
(3), or
(6) of this Code section;
or
(5)
Files or causes to be filed with the official registrar of deeds of any county
of this state any document such person knows to contain a deliberate
misstatement, misrepresentation, or
omission;
or
(6)
Knowingly uses or facilitates the use of any deliberate misstatement,
misrepresentation, or omission for the purpose of obtaining remuneration from a
homeowner where such homeowner's residence is subject to the mortgage
foreclosure process and in reliance upon such deliberate misstatement,
misrepresentation, or omission, the homeowner pays such person any amount to
prevent or forestall the foreclosure when, in fact, such person is not
reasonably able to prevent or forestall the
foreclosure.
An
offense of residential mortgage fraud shall not be predicated solely upon
information lawfully disclosed under federal disclosure laws, regulations, and
interpretations related to the mortgage lending process."
SECTION
4.
This
Act shall become effective on July 1, 2009, and shall apply to all offenses
committed on or after that date.
SECTION
5.
All
laws and parts of laws in conflict with this Act are repealed.