Private Lending in Florida - Rules & Regs

Private Lending in Florida - Rules & Regs

Las Vegas, NV · Member since 2012 · 48 posts · 3 votes

Hi! I have the opportunity to make some loans to a home flipping business in FL (structured as an LLC) secured by first position mortgages on residential real estate. I've looked through the laws myself ( http://law.onecle.com/florida/regulation-of-trade-commerce-investments-and-solicitations/chapter494.html ) and want to share what I have found about exemptions for individuals lending private money secured by mortgages on residential property. I am not asking for legal advice, just opinions and peoples' experience with private lending in FL. I am not a broker or any kind of licensed real estate professional - just an individual looking to park my money in some investments. I would be directly lending to the company and taking points + interest (all within usury limits).

Anyway, here goes with what I've found:

• Mortgage Lender: “A person Making a Mortgage Loan or Servicing a Mortgage Loan for others, or, for compensation or gain, directly or indirectly, selling or offering to sell a Mortgage Loan to a Non-Institutional Investor.

• Mortgage Loan: Any:
• Residential Loan primarily for personal, family, or household use which is secured by a mortgage, deed of trust, or other equivalent consensual security interest on a Dwelling, as defined in s. 103(v) of the federal Truth in Lending Act (TILA), OR for the purchase of residential real estate upon which a dwelling is to be constructed (raw land);
• Dwelling (TILA): “a residential structure or mobile home which contains one to four family housing units, or individual units of condominiums or cooperatives.”

• Making a Mortgage Loan: “Closing a Mortgage Loan in a PERSONAL NAME, advancing funds, offering to advance funds, or making a commitment to advance funds to an applicant for a Mortgage Loan.”

• Exemption: “The following are exempt from regulation under this part (Part I – ‘General Provisions’) and Parts II and III ( II – Mortgage Brokers, III – Mortgage Lenders )
• (2) The following persons ARE exempt from regulation under Part III (Mortgage Lenders) of this chapter:
• (e) An individual Making or Acquiring a Mortgage Loan using his or her OWN FUNDS for his or her OWN INVESTMENT, AND who does NOT hold himself or herself out to the public as being in the mortgage lending business.
• (f) An individual selling a mortgage that was made or purchased with that individual’s funds for his or her own investment, AND who does NOT hold himself or herself out to the public as being in the mortgage lending business.

So my thoughts are that it looks like I can make the loan to the company and charges points in addition to interest. Not only that, it appears that I can sell the note. Am I missing something here, or is FL pretty loose with the laws? I know there's always the great debate about intended use of the loan (business purpose, non-owner occupied) vs. the nature of the asset underlying the loan (residential whether owner-occupied or not vs. commercial). To me, FL makes it look clear that private unlicensed lending on non-owner occupied residential real estate is OK.

Thoughts? Am I missing something here? Other regulations or rules to be concerned about before pulling the trigger on this? Also, what are the boundaries of "holding oneself out to the public as being in the mortgage lending business" ?? Wow, long post - thanks for taking the time to read :)

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Dion DePaoliPro Member
Real Estate Broker · Northwest Indiana, IN · Member since 2011 · 2k+ posts · 2k+ votes
13y

I didn't read this whole thread, only glanced on the way down. I have been a broker, a Principal Broker and operated two lending companies one a Mortgage Broker Business and one a Correspondent Lender in the state of Florida.

The Department of Financial Regulation supervises the broker and lender license for real property for the state. The chapter dealing with lending and brokering is Chapter 494.

The terminology in the rule is crafted carefully and meant to be a little ambiguous. "Holding oneself out to the public" is you the potential lender taking actions to cause the public to take notice of you. Holding yourself out to the public also means allowing the public to engage you in a unrestricted manner.

A private person can make a loan, within the usury limits, that is not considered a High Cost Loan and be exempt from license. A licensed mortgage broker, working for a licensed mortgage lender or broker company can assist with the origination of said loan provided the proper set of steps, paperwork and procedure are followed which includes application, TILA, GFE and appraisal. We use to do this with private capital we raised.

The property is the residential distinction not the borrowing entity. Just because you lend to an LLC does not mean the loan is commercial. Any 1 to 4 unit is residential, along with all the other typical residential properties. The intent debate is not all that deep and is mostly meaningless. The occupancy status of said property also does not alter the type of loan. Primary Residences in Florida are protected though as evolved through some of the predatory lending rules that have come along.

The Mortgagee can certainly sell the note off in the secondary market. There is no issue there.

The short term maturity can be problematic. Short term lending falls under the regulations of the predatory lending which can be found in the Florida Fair Lending Act. Short term loans are allowed, but have some caveats to them. The fees collected also have some guides to follow. A short term loan in Florida is termed a "Bridge Loan" by the regulations and is any mortgage with a term of less than 18 months. Things like restrictions on prepayment penalty or default interest rates or even Due on Sale clauses are governed by this rule. There is also certain disclosures that must accompany the loan.

A high cost loan must contain the language even for the sale of said loan in the secondary market a phrase similar to the following: "Notice: This is a mortgage subject to the provisions of the Florida Fair Lending Act. Purchasers and assignees of this mortgage could be liable for all claims and defenses with respect to the mortgage which the borrower could assert against the creditor."

Max rate on loans under $500k is 18% and 25% above $500k.

Bill is correct with the IRS overview. That always comes up.

Holding oneself out to the public does not have anything to do with selling the loan in the secondary market. The secondary market transaction is for investment purposes and is not governed by these lending rules. These are for the protection of the common public as debtors. There is no minimum time frame to hold the mortgage prior to selling in the secondary market.

Now, holding the loan out as an investment to the public under a basis of return or yield is a whole other can of worms. You would need proper licensing and would likely get attention from both DOF and FINRA. Simply don't do this.

There is a provision which looks for a pattern of predatory lending and outsourced risk.

There is a proper way to calculate the A.P.R. (Annual Percentage Rate) as per Regulation Z. Generally any charge which is specific to the extension of credit for that certain loan should be included in the calculation. This can include the charges of third party service providers if a borrower is forced to use that party opposed to one of their selection. Point is, it is not simply interest rate and points that can set you over the usury limit. Home Ownership and Equity Protection Act (HOEPA) also defines rules for high cost loans which are also referred to as "Section 32" loans which deal with refinance loans on the Primary Residence. (purchase mortgages are not included in HOEPA)

As to the amount of capital needed to enter into the market. This varies, even in Florida by location. $50k might work in some portions of central, north and southwest Florida but might not be all that great to work with in some places closer to SE Florida.

One terminology distinction, a loan is collateralized by the real property not securitized. Securitization is the act of taking illiquid assets and pooling them to create a security. The do not mean the same thing. A loan is secured by real property but a loan is not securitized until it enters into a security.

The high cost lending calculation is being confused. It is true that interest and fees go into the calculation but not as being mentioned. If the loan has a 7% interest rate with a 6 month maturity, the loan has an APR of 7% not 14%, that is simply the wrong math. The APR will be greater than the interest rate once all of the costs associated with the extension of credit are sum up. If that same loan has 2% in fees those what need to be include over the life of the loan, if the life of the loan is short, the impact of the fees will increase the APR of the loan. So 2% in 6 months is closer to 4%. 2% over 10 years is closer to 0.20%.

There are other things to consider when evaluating high cost loans. In an example, there are cases in Florida body of law which have a lender using the face rate of the note but by the way the capital was distributed to the borrower the usury rate was exceeded. This has happened several times in fix and flip private money loans. A withholding of construction money, a collection of an interest payment at closing, all of these things count against the usury rate.

The state language around the calculation of interest:
"...…any payment or property charged…as an advance…which is in the nature of, and taken into account in the calculation of, interest shall be valued as of date received and shall be spread over the stated term of the loan…for the purpose of determining the rate of interest. The spreading of any such advance…for the purpose of computing the rate of interest shall be calculated by first computing the advance…as a percentage of the total stated amount of such loan….This percentage shall then be divided by the number of years, and fractions thereof, of the loan…according to its stated maturity date, without regard to early maturity in the event of default. The resulting annual percentage rate shall then be added to the stated annual percentage of interest to produce the effective rate of interest for purposes of this chapter.”

In general, this loan at 12.5% with 3.5% in 6 months is usury. That also doesn't include the other fees but the points equal 7% plus the note rate of 12.5% puts you at 19.5%. Usury is not limited to residential or commercial, it is limited by loan amount, so this loan under $500k fails the test.

Usury can be a felony charge. I recommend you take it seriously. At the worst, the note and mortgage can be nullified and unenforceable.

Even further, a bond year is 360, the annual percentage rate by rule of law is 365. The term "annual" generally refers to a year of 365 days and that is what the consumer gets according to the state Attorney General.

The profit on the sale of a loan in the secondary market is not subject to any regulation. Whether you make 1% or 100%, it does not matter.

Prepaid interest is any interest including fees such as broker fee or origination fee or buydown fees along with per diem interest paid at the time of closing. The interest is 'prepaid' or paid before the interest has accrued for use of the funds during the time the funds were possessed by the borrower.

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  • Investor · Orlando, FL · Member since 2012 · 431 posts · 106 votes
    13y

    You need to speak with a Florida creditors rights / real estate attorney about this. Being a non judicial foreclosure state things can get a little convoluted here.

    Out of curiosity would you mind sharing what this firm is offering for your private money?

  • Las Vegas, NV · Member since 2012 · 48 posts · 3 votes
    13y

    Steve K, it's a small venture, but they are offering me 70% LTV based on their purchase price (short sales), 12.5% interest, and 3.5% points with 6 month maturity. I think it's a pretty competitively structured offer.

  • Real Estate Professional · West Palm Beach, FL · Member since 2012 · 23k+ posts · 13k+ votes
    13y

    Lupe Santiago Sounds okay, if they have a track record. Buying a short sale doesn't necessarily mean you're getting a good discount though.
    Steve K I think you meant to say "judicial", not "non judicial".

  • Investor · Orlando, FL · Member since 2012 · 431 posts · 106 votes
    13y

    Wayne Brooks You're correct. Minor brain lapse.

  • Investor, Entrepreneur, Educator · Springfield, MO · Member since 2009 · 21k+ posts · 12k+ votes
    13y

    There are a couple issues everywhere. 1. The IRS, they will consider you "in the business" of any activity if the majority or significant amount of your income comes from that activity, if you are deemed to be in the business it doesn't matter that it's your money. 2. If you are lending to the same 3 or 4 guys and not advertising, found them by word of mouth, you'll be fine, if you have 20 different borrowers, even though they may all be rehabbers, they may see that as the public. Where they may cut that off as to the number of different borrowers may be in the eye of the beholding regulator or judge. The only way to get a feel for that is to ask a local financing attorney type.
    "The public" can be broadly construed, saying I only make loans to Realtors for example won't cut it. Stay with a small circle of borrowers and you'll probably be fine. :)

  • Real Estate Broker · Naples, FL · Member since 2013 · 9k+ posts · 6k+ votes
    13y

    I have been doing private lending for some time in Florida. I have attorneys draft all the paperwork. I am lending for my personal investments therefore no license required under the exemptions. Usury is anything over 18%. I have been led to believe there are dollar amount caps that do require licensing but have not verified that. I prefer using my 401K for the loans although I have written some through various entities besides the 401K. As far as holding yourself out to the public and a lender, if you do so stating you are a private investor seeking to lend for your personal financial gain that may or may not work. I see ads quite often advertising "private" mortgage money. If you do advertise, and state you are a mortgage company or broker you better have that license!

  • Las Vegas, NV · Member since 2012 · 48 posts · 3 votes
    13y

    Bill Gulley thanks for the reply. There wouldn't be any kind of advertising involved with this - not even Craigslist. I have a previous business relationship with the company that is rehabbing in FL and for the time being, all my loans will be made to the LLC. Based on the language of the exemption in 494.00115(2)(f), it seems that I can even sell it to people as long as I don't "hold myself out to the public as being in the business." I do have family members and close friends who are also looking to park their money in higher yielding returns.

    Wayne Brooks, you are right that short sale doesn't always mean good deal! I make sure to research the investments myself. No return ever comes without at least some risk and effort :)

  • Las Vegas, NV · Member since 2012 · 48 posts · 3 votes
    13y

    John Thedford, thanks for your input. Am I reading exemption 494.00115(2)(f) correctly, in that if the loan I made was exempt appropriately because it was funded with my own money for my own investment, I can sell it as long as I'm not holding myself out to the public as being in the business of mortgage lending? I have family and friends with cash who are itching to get securitized higher yielding instruments, and selling the notes I have could be a great way to increase my returns and their returns. I wouldn't advertise them or anything to anyone but people I already have a relationship with. Any time restriction? Does it make a difference whether I hold for a day, month, year, etc...?

    I will look through the statutes to try and find if there is any dollar amount trigger for busting the exemption.

  • Real Estate Broker · Naples, FL · Member since 2013 · 9k+ posts · 6k+ votes
    13y

    Lupe Santiago you can sell any paper you own. As far as ROI, you will find rates all over the place. I have one lender that charges 6.25% which is unheard of. I know other people that get up to 18%. Watch out for points. Points are cost of money and some Florida courts have ruled usury in some cases. Don't charge 15% plus 3 points and write a 6 month mortgage. That puts you at 21% APR. Write it for a year, then if you get paid in full in six months that escalates your APR significantly AND legally. Be glad you are in Florida. Some states require a license to lend money, have rent controls, have restrictions on buying and selling RE...EVERYTHING! California comes to mind for overregulation.

  • Real Estate Professional · West Palm Beach, FL · Member since 2012 · 23k+ posts · 13k+ votes
    13y

    Lupe Santiago You didn't ask, but my suggestion would be to lend locally, unless you have some real, past relationship with the rehabbers down here. I do assume you'd be getting personal guarantees. It just seems too expensive/cumbersome to really monitor/analyze exactly what you're lending on, etc. There's a lot of available HML down here.

  • Las Vegas, NV · Member since 2012 · 48 posts · 3 votes
    13y

    John Thedford, do you know of any time restriction on notes you own? Can I make the loan and sell it to my cousin the next day? Do I have to wait a certain amount of time?

    Wayne Brooks, yes I do have a real personal relationship with the principals of the company and I have been to FL a few times to scope out the market!

  • Tampa, FL · Member since 2012 · 23 posts · 1 vote
    13y

    Generally, how much is needed to get into private lending? $50k? $100k?

  • Las Vegas, NV · Member since 2012 · 48 posts · 3 votes
    13y

    Kevin Rain, it depends on who's borrowing. $50k probably won't cut it because that's barely enough for one loan. If you are dealing with a friend who's just going to flip one property every so often, then maybe he'll find it worthwhile. On the flip side, do you really want to trust $50k to someone who only casually invests? Flipping is not easy... you have to be committed to doing it and really pour in a lot of time, not to mention have good experience in dealing with the local market + contractors. Even $100k is on the low side from my experience. As a HML, you need to be a reliable source of capital for the borrower. Most people looking to flip don't just submit 1 deal and get it. They submit hundreds of offers and approvals just come in at the most random times. Sometimes you'll be dry for months, and then all the sudden have 5 that are approved that you need to close within a month.

    The reasons why people use hard money are because of its flexibility, quickness, and low hassle. When a bank approval comes in for a property, they don't give you much time to close the deal. Sometimes it's as little as 7-10 days from the time of approval. Money needs to be available on demand. From my point of view, you need at least a couple of hundred thousand (depending on the market, the borrower, what they're looking to flip) to appropriately meet the demands of a borrower who is flipping as a business instead of casually.

    If you are looking to just buy hard money notes from brokers, well any amount will do as long as you can fund a property. It's basically just buying a securitized note. If you want to be the one that tries to create the deal and meet the demand of the borrowers, it's a much more difficult ball game that requires a more significant amount of capital.

  • Tampa, FL · Member since 2012 · 23 posts · 1 vote
    13y

    Lupe Santiago Thank you for the insight, I truly appreciate your quick and concise response.

  • Real Estate Broker · Naples, FL · Member since 2013 · 9k+ posts · 6k+ votes
    13y

    Lupe Santiago as far as I know there are no time restrictions. As I mentioned above. calculate your return on an annual basis to make sure you are end up with usury claims. One last note: don't count on an attorney to give you good advice. Make sure you ask questions and that your attorney knows what he is doing. If they fail to draft everything properly, YOU are the one with the headache...not the attorney.

  • Investor, Entrepreneur, Educator · Springfield, MO · Member since 2009 · 21k+ posts · 12k+ votes
    13y

    I skipped everything from your reply to me, you can't "park" money for family or friends, it must be yours, otherwise you are brokering. This stuff comes out when you try to secure yourself, foreclosures, estates, bankruptcy, etc. others not yours so much. I suggest an audit trail for your money, where it came from. They can do their own deals as well. :)

  • Real Estate Broker · Naples, FL · Member since 2013 · 9k+ posts · 6k+ votes
    13y

    Kevin Rain you can start with less. Keep the rule of 72 in mind. If you start lending and reinvest every dime you money will grown quicker than you realize. I saw an ad today on craigslist asking for 5K stating they will pay 18%. Pretty good return and not a lot of cash. The more you have to lend the quicker it will grow. Everyone starts somewhere. Don't take the "I can't" attitude. Keep your goals high and go for it!

  • Las Vegas, NV · Member since 2012 · 48 posts · 3 votes
    13y

    Bill Gulley, I would sell the note that I closed to friends/family. They wouldn't be the original lender, and they would have no contact with the borrower. All they know is that I'm buying notes with my own money and there would be verifiable wire records to substantiate that. The exemption in FL seems to say that I can do this as long as I bought it with my own money in the first place. This just seems too good to be true.

  • Las Vegas, NV · Member since 2012 · 48 posts · 3 votes
    13y

    John Thedford

    Is that how usury works? It can lead to some absurd results if it's based on your annualized holding period return.

    For example: Borrower executes a note at 12% secured by mortgage for $100k in my favor with 3 points and a 9 month term. I take out 3 points when I fund so I wire Borrower 97k. 2 days later, I sell the note at par and assign the position of mortgagor to my cousin. I made 3% in 2 days. So based on a 360 day year, I just made 540% and ran afoul of the usury law? Or does it not apply to the sale, but rather only the origination of the loan?

    So 12%, 3 points, 6 months is ok, but 12.01%, 3 points, 6 months is not ok, yes?

  • Real Estate Broker · Naples, FL · Member since 2013 · 9k+ posts · 6k+ votes
    13y

    Lupe Santiago it doesn't apply for buying or selling notes. It applies to the note itself. If the note exceeds 18% APR in Florida...usury. 12% plus 3 points for 9 months is less than 18% APR. You can originate it and then sell it one day later without issue. Now, take 18% per anum plus any points and you have usury because it exceeds 18% APR. Usury applies to the face value of the note.

  • Las Vegas, NV · Member since 2012 · 48 posts · 3 votes
    13y

    John Thedford - Thanks! That's very clear.

  • Investor, Entrepreneur, Educator · Springfield, MO · Member since 2009 · 21k+ posts · 12k+ votes
    13y

    Points are prepaid interest, institutions and brokers, licensed lenders can charge prepaid interest not private types. I know, many do, depends on how you do business I guess.

    You also need an attorney familiar in lending. Making a loan and then immediately selling it is a brokering activity.

    The problem with many private lenders is that they believe that lending is like some general business where they made a few million and have decided that they can figure it out, strategies, just not so.

    Just as the comment above about answering ads. When you loan money out to people you never met, have no relationship to, who were not introduced to you, you are getting close to that public dealing. That means looking at newspaper ads or CL looking for borrowers is dealing with the public.

    In Lupe's case, he knows the company, not a problem.

    Having a Realtor introduce you to someone who needs a loan is considered private, they are introduced to you. You go beating the bushes in any manner, that's not private, that is seeking business.
    Many need to get another mind set or get a license.

    Following what some other private lender does is not a good idea, get professional advice.

    People who lend and borrow, even as a business entity, are still people with people occurrences. We call these issues "life events" death, incapacitation, divorce, bankruptcy, law suits are some of the stuff that just happens. Most borrowers don't know what usury laws are, may not care, they may not know the lender is not in compliance and these "private" loans or deals often go undetected, but not always. They get caught in connection with these life events, when attorneys start digging, when a judge asks a question that leads to another question. Getting into lending with an attitude that we can out smart the regulations is just the wrong attitude. You're held to the intent of the law as well as to the letter.

    I know this is a RE site, but many who would like to loan money probably should be getting with pawn brokers, they borrow money, secured by various assets, including RE, but also inventory. Much easier than RE notes, usury may not apply to pawn shops. :)

  • Real Estate Investor · Audubon, PA · Member since 2009 · 13k+ posts · 8k+ votes
    13y
    Originally posted by Lupe Santiago:
    ... I sell the note at par and assign the position of mortgagor to my cousin. ...

    This does not sound correct to me. Mortgagor is the borrower, and has no rights to assign having already given the mortgage. Mortgagee is the lender, who would have rights to assign.

  • Las Vegas, NV · Member since 2012 · 48 posts · 3 votes
    13y

    Bill Gulley, thanks for the post. Can you elaborate on the regulation of prepaid interest? Are there federal rules governing this? Or is it all state law? To your knowledge, do most states disallow the charging of prepaid interest when lending as a private individual? This is the first time this has been brought to my attention.

  • Las Vegas, NV · Member since 2012 · 48 posts · 3 votes
    13y

    You're right Steve, I mixed up the names. Good catch!

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