BILL NUMBER: AB 1950 AMENDED BILL TEXT AMENDED IN ASSEMBLY APRIL 19, 2012 AMENDED IN ASSEMBLY APRIL 10, 2012 INTRODUCED BY Assembly Member Davis FEBRUARY 23, 2012 An act to amend Sections 10085.6 and 10130 of the Business and Professions Code, to amend Section 2944.7 of the Civil Code, to amend Section 27388 of the Government Code, and to amend Section 802 of the Penal Code, relating to business. LEGISLATIVE COUNSEL'S DIGEST AB 1950, as amended, Davis. Prohibited business practices: enforcement.Existing(1) Existing law prohibits any person from engaging in the business, acting in the capacity of, advertising or assuming to act as a real estate broker or a real estate salesman without first obtaining a real estate license, as specified. This bill would additionally prohibit any person from engaging in the business, acting in the capacity of, advertising or assuming to act as a mortgage loan originator without being so licensed or without having obtained a license endorsement, as specified.Existing(2) Existing law, until January 1, 2013, prohibits any person who negotiates or arranges residential mortgage loan modifications, as specified, for a fee, from demanding or receiving preperformance compensation, as specified, or requiring security as collateral or taking a power of attorney from the borrower and makes a violation of that prohibition a misdemeanor subject to specified fines. Existing law, until January 1, 2013, also prohibits certain conduct by a real estate licensee in connection with a mortgage loan modification or forbearance, including demanding compensation before service is fully performed, taking a lien on property or wage assignment, or taking a power of attorney from the borrower. A violation of those prohibitions is a misdemeanor. This bill would extend the operation of the above-described provisions indefinitely. By extending the operation of existing crimes, this bill would impose a state-mandated local program.Existing(3) Existing law provides that in addition to other recording fees, upon adoption of a resolution by the county board of supervisors, a fee of up to $3 shall be paid at the time of recording of specified real estate instruments, to be placed in the Real Estate Fraud Prosecution Trust Fund and to be expended to fund programs for the local police and prosecutors to prosecute real estate fraud crimes. This bill would impose an additional $25 fee to be paid at the time of recording a notice of default. The fee would be deposited in the State Real Estate Fraud Prosecution Account of the General Fund, which would be created by the bill, to be available, upon appropriation by the Legislature, for purposes of combating real estate fraud crimes, as specified. The bill would make additional technical changes.Existing(4) Existing law provides that any person advertising or holding himself or herself out as practicing or entitled to practice law or otherwise practicing law who is not an active member of the State Bar, or any person acting or advertising themselves as a real estate broker, real estate salesperson, or mortgage loan originator without a license or license endorsement, is guilty of a misdemeanor. Existing law requires any person, including a person licensed to practice law, who performs a mortgage loan modification or other form of mortgage loan forbearance for a fee or other compensation, as specified, to provide a specified notice to the borrower concerning 3rd parties arranging loan modifications. Existing law also prohibits certain conduct by that person including, among other things, demanding compensation before service is fully performed, taking a lien on property or a wage assignment, or taking a power of attorney from the borrower. Existing law provides that a violation of these requirements or prohibitions is a misdemeanor with specified penalties. Existing law requires that a prosecution for these offenses be commenced within one year of the commission of the offense. This bill would extend the time to commence a prosecution for these offenses to43 years from the discovery of the commission of the offense, or within43 years after completion of the offense, whichever is later.The(5) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason.This(6) This bill would include a change in state statute that would result in a taxpayer paying a higher tax within the meaning of Section 3 of Article XIII A of the California Constitution, and thus would require for passage the approval of 2/3 of the membership of each house of the Legislature. Vote: 2/3. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 10085.6 of the Business and Professions Code is amended to read: 10085.6. (a) Notwithstanding any other provision of law, it shall be unlawful for any licensee who negotiates, attempts to negotiate, arranges, attempts to arrange, or otherwise offers to perform a mortgage loan modification or other form of mortgage loan forbearance for a fee or other compensation paid by the borrower, to do any of the following: (1) Claim, demand, charge, collect, or receive any compensation until after the licensee has fully performed each and every service the licensee contracted to perform or represented that he, she, or it would perform. (2) Take any wage assignment, any lien of any type on real or personal property, or other security to secure the payment of compensation. (3) Take any power of attorney from the borrower for any purpose. (b) A violation of this section by a natural person who is a licensee is a public offense punishable by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail for a term not to exceed one year, or by both that fine and imprisonment, or if by a corporation, the violation is punishable by a fine not exceeding fifty thousand dollars ($50,000). These penalties are cumulative to any other remedies or penalties provided by law. (c) This section shall apply only to mortgages and deeds of trust secured by residential real property containing four or fewer dwelling units. SEC. 2. Section 10130 of the Business and Professions Code is amended to read: 10130. It is unlawful for any person to engage in the business, act in the capacity of, advertise or assume to act as a real estate broker or a real estate salesman within this state without first obtaining a real estate license from the department, or to engage in the business, act in the capacity of, advertise or assume to act as a mortgage loan originator within this state without being so licensed or without having obtained a license endorsement. The commissioner may prefer a complaint for violation of this section before any court of competent jurisdiction, and the commissioner and his counsel, deputies or assistants may assist in presenting the law or facts at the trial. It is the duty of the district attorney of each county in this state to prosecute all violations of this section in their respective counties in which the violations occur. SEC. 3. Section 2944.7 of the Civil Code is amended to read: 2944.7. (a) Notwithstanding any other provision of law, it shall be unlawful for any person who negotiates, attempts to negotiate, arranges, attempts to arrange, or otherwise offers to perform a mortgage loan modification or other form of mortgage loan forbearance for a fee or other compensation paid by the borrower, to do any of the following: (1) Claim, demand, charge, collect, or receive any compensation until after the person has fully performed each and every service the person contracted to perform or represented that he or she would perform. (2) Take any wage assignment, any lien of any type on real or personal property, or other security to secure the payment of compensation. (3) Take any power of attorney from the borrower for any purpose. (b) A violation of this section by a natural person is a public offense punishable by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail for a term not to exceed one year, or by both that fine and imprisonment, or if by a business entity, the violation is punishable by a fine not exceeding fifty thousand dollars ($50,000). These penalties are cumulative to any other remedies or penalties provided by law. (c) Nothing in this section precludes a person, or an agent acting on that person's behalf, who offers loan modification or other loan forbearance services for a loan owned or serviced by that person, from doing any of the following: (1) Collecting principal, interest, or other charges under the terms of a loan, before the loan is modified, including charges to establish a new payment schedule for a nondelinquent loan, after the borrower reduces the unpaid principal balance of that loan for the express purpose of lowering the monthly payment due under the terms of the loan. (2) Collecting principal, interest, or other charges under the terms of a loan, after the loan is modified. (3) Accepting payment from a federal agency in connection with the federal Making Home Affordable Plan or other federal plan intended to help borrowers refinance or modify their loans or otherwise avoid foreclosures. (d) This section shall apply only to mortgages and deeds of trust secured by residential real property containing four or fewer dwelling units. SEC. 4. Section 27388 of the Government Code is amended to read: 27388. (a) (1) In addition to any other recording fees specified in this code, upon the adoption of a resolution by the county board of supervisors, a fee of up to three dollars ($3) shall be paid at the time of recording of every real estate instrument, paper, or notice required or permitted by law to be recorded within that county, except those expressly exempted from payment of recording fees. The fees, after deduction of any actual and necessary administrative costs incurred by the county in carrying out this section, shall be paid quarterly to the county auditor or director of finance, to be placed in the Real Estate Fraud Prosecution Trust Fund. The amount deducted for administrative costs shall not exceed 10 percent of the fees paid pursuant to this section. (2) "Real estate instrument" is defined for the purposes of this section as a deed of trust, an assignment of deed of trust, a reconveyance, a request for notice, a notice of default, a substitution of trustee, a notice of trustee sale, and a notice of rescission or declaration of default. "Real estate instrument" does not include any deed, instrument, or writing subject to the imposition of a documentary transfer tax as defined in Section 11911 of the Revenue and Taxation Code, or any document required to facilitate the transfer subject to the documentary transfer tax. (3) An additional fee of twenty-five dollars ($25) shall be paid at the time of recording a notice of default pursuant to Section 2924 of the Civil Code. Counties shall transmit the twenty-five-dollar ($25) fee, less administrative costs of transmittal, to the Department of Justice. (b) (1) Money placed in the Real Estate Fraud Prosecution Trust Fund shall be expended to fund programs to enhance the capacity of local police and prosecutors to deter, investigate, and prosecute real estate fraud crimes. (2) After deduction of the actual and necessary administrative costs referred to in paragraph (1) of subdivision (a), 60 percent of the funds shall be distributed to district attorneys subject to review pursuant to subdivision (e), and 40 percent of the funds shall be distributed to local law enforcement agencies within the county in accordance with subdivision (d). (3) In those counties where the investigation of real estate fraud is done exclusively by the district attorney, after deduction of the actual and necessary administrative costs referred to in paragraph (1) of subdivision (a), 100 percent of the funds shall be distributed to the district attorney, subject to review pursuant to subdivision (e). The funds so distributed shall be expended for the exclusive purpose of deterring, investigating, and prosecuting real estate fraud crimes. (c) Moneys transmitted pursuant to paragraph (3) of subdivision (a) shall be deposited in the State Real Estate Fraud Prosecution Account of the General Fund, which is hereby created, to be available, upon appropriation by the Legislature, for expenditure by the department for the purpose of determining, investigating, and prosecuting real estate fraud crimes. (d) The county auditor or director of finance shall distribute funds in the Real Estate Fraud Prosecution Trust Fund to eligible law enforcement agencies within the county pursuant to subdivision (b), as determined by a Real Estate Fraud Prosecution Trust Fund Committee composed of the district attorney, the county chief administrative officer, the chief officer responsible for consumer protection within the county, and the chief law enforcement officer of one law enforcement agency receiving funding from the Real Estate Fraud Prosecution Trust Fund, the latter being selected by a majority of the other three members of the committee. The chief law enforcement officer shall be a nonvoting member of the committee and shall serve a one-year term, which may be renewed. Members may appoint representatives of their offices to serve on the committee. If a county lacks a chief officer responsible for consumer protection, the county board of supervisors may appoint an appropriate representative to serve on the committee. The committee shall establish and publish deadlines and written procedures for local law enforcement agencies within the county to apply for the use of funds and shall review applications and make determinations by majority vote as to the award of funds using the following criteria: (1) Each law enforcement agency that seeks funds shall submit a written application to the committee setting forth in detail the agency's proposed use of the funds. (2) In order to qualify for receipt of funds, each law enforcement agency submitting an application shall provide written evidence that the agency either: (A) Has a unit, division, or section devoted to the investigation or prosecution of real estate fraud, or both, and the unit, division, or section has been in existence for at least one year prior to the application date. (B) Has on a regular basis, during the three years immediately preceding the application date, accepted for investigation or prosecution, or both, and assigned to specific persons employed by the agency, cases of suspected real estate fraud, and actively investigated and prosecuted those cases. (3) The committee's determination to award funds to a law enforcement agency shall be based on, but not be limited to, the number of real estate fraud cases filed in the prior year, the number of real estate fraud cases investigated in the prior year, the number of victims involved in the cases filed, and the total aggregated monetary loss suffered by victims, including individuals, associations, institutions, or corporations, as a result of the real estate fraud cases filed, and those under active investigation by that law enforcement agency. (4) Each law enforcement agency that, pursuant to this section, has been awarded funds in the previous year, upon reapplication for funds to the committee in each successive year, in addition to any information the committee may require in paragraph (3), shall be required to submit a detailed accounting of funds received and expended in the prior year. The accounting shall include the amount of funds received and expended, the uses to which those funds were put, including payment of salaries and expenses, purchase of equipment and supplies, and other expenditures by type, the number of filed complaints, investigations, arrests, and convictions that resulted from the expenditure of the funds, and other relevant information the committee may reasonably require. (e) The county board of supervisors shall annually review the effectiveness of the district attorney in deterring, investigating, and prosecuting real estate fraud crimes based upon information provided by the district attorney in an annual report. The district attorney shall submit the annual report to the board and to the Legislative Analyst's Office on or before September 1 of each year. The Legislative Analyst's Office shall compile the results and report to the Legislature, detailing both: (1) Facts, based upon, but not limited to, the number of real estate fraud cases filed in the prior year, the number of real estate fraud cases investigated in the prior year, the number of victims involved in the cases filed, the number of convictions obtained in the prior year, and the total aggregated monetary loss suffered by victims, including individuals, associations, institutions, corporations, and other relevant public entities, according to the number of cases filed, investigations, prosecutions, and convictions obtained. (2) An accounting of funds received and expended in the prior year, which shall include the amount of funds received and expended, the uses to which those funds were put, including payment of salaries and expenses, purchase of equipment and supplies, and other expenditures by type, the number of filed complaints, investigations, prosecutions, and convictions that resulted from the expenditure of funds, and other relevant information provided at the discretion of the district attorney. (f) A county in which a district attorney fails to submit an annual report to the Legislative Analyst's Office pursuant to the requirements of subdivision (e) shall not expend funds held in that county's Real Estate Fraud Prosecution Trust Fund until the district attorney has submitted an annual report for the county's most recent full fiscal year. (g) Annual reports submitted to the Legislative Analyst's Office pursuant to subdivision (e) shall be made in a standard form and manner determined by the Legislative Analyst's Office, in consultation with participating law enforcement agencies. (h) The intent of the Legislature in enacting this section is to have an impact on real estate fraud involving the largest number of victims. To the extent possible, an emphasis should be placed on fraud against individuals whose residences are in danger of, or are in, foreclosure as defined in subdivision (b) of Section 1695.1 of the Civil Code. Case filing decisions continue to be at the discretion of the prosecutor. (i) A district attorney's office or a local enforcement agency that has undertaken investigations and prosecutions that will continue into a subsequent program year may receive nonexpended funds from the previous fiscal year subsequent to the annual submission of information detailing the accounting of funds received and expended in the prior year. (j) No money collected pursuant to this section shall be expended to offset a reduction in any other source of funds. Funds from the Real Estate Fraud Prosecution Trust Fund shall be used only in connection with criminal investigations or prosecutions involving recorded real estate documents. SEC. 5. Section 802 of the Penal Code is amended to read: 802. (a) Except as provided in subdivision (b), (c), (d), or (e), prosecution for an offense not punishable by death or imprisonment in the state prison shall be commenced within one year after commission of the offense. (b) Prosecution for a misdemeanor violation of Section 647.6 or former Section 647a committed with or upon a minor under the age of 14 years shall be commenced within three years after commission of the offense. (c) Prosecution of a misdemeanor violation of Section 729 of the Business and Professions Code shall be commenced within two years after commission of the offense. (d) Prosecution of a misdemeanor violation of Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code shall be commenced as follows: (1) With respect to Sections 7028.17, 7068.5, and 7068.7 of the Business and Professions Code, within one year of the commission of the offense. (2) With respect to Sections 7027.1, 7028.1, 7028.15, 7118.4, 7118.5, 7118.6, 7126, 7153, 7156, 7157, 7158, 7159.5 (licensee only), 7159.14 (licensee only), 7161, and 7189 of the Business and Professions Code, within two years of the commission of the offense. (3) With respect to Sections 7027.3 and 7028.16 of the Business and Professions Code, within three years of the commission of the offense. (4) With respect to Sections 7028, 7159.5 (nonlicensee only) and 7159.14 (nonlicensee only), of the Business and Professions Code, within four years of the commission of the offense. (e) Prosecution for a misdemeanor violation of Section 6106.3, 6126, 10085.6, 10139, or 10147.6 of the Business and Professions Code or of Section 2944.6 or 2944.7 of the Civil Code shall be commenced withinfourthree years after discovery of the commission of the offense, or withinfourthree years after completion of the offense, whichever is later. SEC. 6. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.