BILL ANALYSIS �
AB 1950
Page 1
Date of Hearing: April 17, 2012
Counsel: Milena Blake
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1950 (Davis) - As Amended: April 10, 2012
As Proposed to be Amended in Committee
SUMMARY : Modifies provisions related to mortgage fraud
enforcement. Specifically, this bill :
1)Removes the sunset date on prohibitions against unlawful
mortgage loan modification or loan forbearance, as specified.
2)States that it is unlawful for any person 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.
3)Requires an additional fee of $25 paid at the time of
recording a notice of default, as specified, which must be
transmitted to the Department of Justice, less administrative
costs of transmittal.
4)Creates the State Real Estate Fraud Prosecution Account of the
General Fund, which the above fee must be deposited into.
This fund is to be used for the purpose of determining,
investigating, and prosecuting real estate fraud crimes.
5)Extends the statute of limitations for misdemeanor crimes
related to mortgage fraud, as specified, from one year to
three years after discovery of the offense, or within three
years after the completion of the offense, whichever is later.
EXISTING LAW :
1)States that prosecution for a misdemeanor must be commenced
within one year of the commission of the offense. �Penal Code
Section 802(a).]
AB 1950
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2)States that the prosecution for a felony not punishable by
death or life imprisonment, or for the embezzlement of public
money, must be commenced within three years, unless the
offense carries a sentence of eight years or more. (Penal
Code Section 801.)
3)States that the prosecution for a felony punishable by
imprisonment of eight years or more, but not punishable by
death or life imprisonment, or for the embezzlement of public
money, must be commenced within six years. (Penal Code
Section 800.)
4)States that the prosecution for a felony punishable by death,
life in prison, or for the embezzlement of public money, may
be commenced at any time. (Penal Code Section 799.)
5)States that the statute of limitations may be tolled for
specified offenses. (Penal Code Section 803.)
FISCAL EFFECT : Unknown.
COMMENTS :
1)Author's Statement : According to the author, "Because of the
complicated nature of the mortgage crisis, it is often a while
before misconduct is discovered, at which point there is
little to no time left in the statute of limitations for the
Attorney General to investigate. Furthermore, due to the
inevitable budget cuts, there is a need to insulate the
Attorney General's Mortgage Fraud Strike Force."
2)Statute of Limitations : The statute of limitations requires
commencement of a prosecution within a certain period of time
after the commission of a crime. A prosecution is initiated
by filing an indictment or information, filing a complaint,
certifying a case to superior court, or issuing an arrest or
bench warrant. (Penal Code Section 804.) If prosecution is
not commenced within the applicable period of limitation, it
is a complete defense to the charge. The statute of
limitations is jurisdictional and may be raised as a defense
at any time before or after judgment. �People v. Morris,
(1988) 46 Cal.3d 1, 13.] The defense may only be waived under
limited circumstances. �Cowan v. Superior Court, (1996) 14
Cal.4th 367.]
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Criminal statutes of limitations are laws that limit the time
during which a prosecution can be commenced. These statutes
have been in operation for over 350 years and are deeply
rooted in the American legal system. There are several
rationales underlying statutes of limitations. First, they
ensure that prosecutions are based upon reasonably fresh
evidence - the idea being that over time memories fade,
witnesses die or leave the area, and physical evidence becomes
more difficult to obtain, identify or preserve. In short, the
possibility of erroneous conviction is minimized when
prosecution is prompt. Second, statutes of limitations
encourage law enforcement officials to investigate suspected
criminal activity in a timely fashion. In addition, it is
thought that the statute of limitations may reduce the
possibility of blackmail based on threats to disclose
information to prosecutors or law enforcement officials.
Another rationale is that as time goes by, the likelihood
increases that an offender has reformed, making punishment
less necessary. In addition, society's retributive impulse
may lessen over time, making punishment less desirable.
Finally, there is the thought that statutes of limitations
provide an overall sense of security and stability to human
affairs. �Lauren Kerns, "Incorporating Tolling Provisions
into Sex Crimes Statute of Limitations", 13 Temple Policy and
Civil Rights Law Review, 325, 327; internal citation omitted.]
3)Related Legislation :
a) AB 1763 (Davis), would authorize the Attorney General to
convene a special grand jury, as prescribed, for cases
involving fraud or theft of public moneys, impairment of
the collection of public money, fraud or theft that occurs
in more than one county and where all potential charges
could not otherwise be brought in a single county, and
charges that could reasonably result in a sentencing
enhancement for aggravated white collar crime. AB 1763 is
scheduled to be heard in this committee today.
b) SB 1474 (Hancock), would authorize the Attorney General
to convene a special grand jury, as prescribed, for cases
involving fraud or theft of public moneys, impairment of
the collection of public money, fraud or theft that occurs
in more than one county and where all potential charges
could not otherwise be brought in a single county, and
charges that could reasonably result in a sentencing
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enhancement for aggravated white collar crime. SB 1474 is
scheduled to be heard in Senate Committee on Public Safety
today.
REGISTERED SUPPORT / OPPOSITION :
Support
California Attorney General's Office
California Professional Firefighters
California Nurses Association
226 Private individuals
Opposition
California Bankers Association
California Credit Union League
California Independent Bankers
California Land Title Association
California Mortgage Bankers Association
Community Financial Services Association
County Recorders' Association of California
United Trustees Association
Analysis Prepared by : Milena Blake / PUB. S. / (916) 319-3744