Florida Senate - 2009                        COMMITTEE AMENDMENT
       Bill No. SB 1132
       
       
       
       
       
       
                                Barcode 962586                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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       The Committee on Banking and Insurance (Fasano) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 817.801, Florida Statutes, is amended to
    6  read:
    7         817.801 Definitions.—As used in this part, the term:
    8         (1)“Control person” means any person who possesses the
    9  power, directly or indirectly, to affect the management or
   10  policies of a credit counseling organization, including, but not
   11  limited to, the organization’s owners if the organization is a
   12  partnership or sole proprietorship, and the organization’s
   13  corporate officers, corporate directors, resident agents, and
   14  trustees.
   15         (2)(1) “Credit counseling organization agency” means any
   16  person organization providing debt management services or credit
   17  counseling services.
   18         (3)(2) “Credit counseling services” means confidential
   19  money management, debt reduction, and financial educational
   20  services. The term does not include foreclosure-related rescue
   21  services as defined in s. 501.1377.
   22         (4)(3) “Creditor contribution” means any sum that a
   23  creditor agrees to contribute to a credit counseling
   24  organization agency, whether directly or by setoff against
   25  amounts otherwise payable to the creditor on behalf of a
   26  consumer debtors.
   27         (5)(4) “Debt management services” means services provided
   28  to a consumer debtor by a credit counseling organization for a
   29  fee to:
   30         (a) Effect the adjustment, compromise, or discharge of any
   31  unsecured account, note, or other indebtedness of the consumer,
   32  except for residential mortgage loan obligations debtor; or
   33         (b) Receive from the consumer debtor and disburse to a
   34  creditor any money or other thing of value.
   35         (6)(5) “Person” has the same meaning as in s. 1.01 means
   36  any individual, corporation, partnership, trust, association, or
   37  other legal entity.
   38         Section 2. Section 817.802, Florida Statutes, is amended to
   39  read:
   40         817.802 Prohibited acts Unlawful fees and costs.—A credit
   41  counseling organization may not:
   42         (1) It is unlawful for any person, while engaging in debt
   43  management services or credit counseling services, to Charge or
   44  accept from a consumer debtor residing in this state, directly
   45  or indirectly, any payment for services before the execution of
   46  a written service contract, or charge or accept from a consumer
   47  a fee or contribution greater than $50 for the initial setup or
   48  initial consultation. Subsequently, the organization person may
   49  not charge or accept a fee or contribution from a consumer
   50  debtor residing in this state greater than $120 per year for
   51  additional consultations; however or, alternatively, if debt
   52  management services as defined in s. 817.801(4)(b) are provided,
   53  the organization person may charge the greater of 7.5 percent of
   54  the amount paid monthly by the consumer debtor to the
   55  organization person or $35 per month, whichever is greater.
   56         (2)Advise any consumer, directly or indirectly, not to
   57  contact or communicate with his or her creditors before or
   58  during the service contract period.
   59         (3)Make or use any false or misleading representations or
   60  omit any material fact in the offer or sale of services offered,
   61  or engage, directly or indirectly, in any fraudulent, false,
   62  misleading, unconscionable, unfair, or deceptive act or practice
   63  in connection with the offer or sale of any of the services of a
   64  credit counseling organization.
   65         (4)Provide services to a consumer without executing a
   66  service contract that complies with s. 817.8045.
   67         (5)Fail to provide copies of all service contracts and
   68  other documents the consumer is required to sign as provided
   69  under s. 817.8045.
   70         (6)Fail to perform any of the terms, conditions, and
   71  obligations provided in the service contract with the consumer.
   72         (7)Fail to comply with the requirements of s. 817.805.
   73         (2) This section does not prohibit any person, while
   74  engaging in debt management or credit counseling services, from
   75  imposing upon and receiving from a debtor a reasonable and
   76  separate charge or fee for insufficient funds transactions.
   77         Section 3. Section 817.803, Florida Statutes, is amended to
   78  read:
   79         817.803 Exceptions.—Nothing in This part does not apply
   80  applies to:
   81         (1) A person licensed to practice law in this state who is
   82  providing legal representation to a client with respect to
   83  credit counseling services or debt management and who does not
   84  engage in the business of providing credit counseling or debt
   85  management services on a continuing basis. Any Debt management
   86  or credit counseling services provided in the practice of law in
   87  this state;
   88         (2) A Any person who engages in debt adjustment to adjust
   89  the indebtedness owed to such person.; or
   90         (3) The following entities or their subsidiaries:
   91         (a) The Federal National Mortgage Association;
   92         (b) The Federal Home Loan Mortgage Corporation;
   93         (c) The Florida Housing Finance Corporation, a public
   94  corporation created in s. 420.504;
   95         (d) A bank, bank holding company, trust company, savings
   96  and loan association, credit union, credit card bank, or savings
   97  bank that is regulated and supervised by the Office of the
   98  Comptroller of the Currency, the Office of Thrift Supervision,
   99  the Federal Reserve, the Federal Deposit Insurance Corporation,
  100  the National Credit Union Administration, the Office of
  101  Financial Regulation of the Department of Financial Services, or
  102  any state banking regulator;
  103         (e) A consumer reporting agency as defined in the Federal
  104  Fair Credit Reporting Act, 15 U.S.C. s. 1681a ss. 1681-1681y, as
  105  it existed on April 5, 2004; or
  106         (f) Any subsidiary or affiliate of a bank holding company,
  107  its employees and its exclusive agents acting under written
  108  agreement.
  109         Section 4. Section 817.804, Florida Statutes, is amended to
  110  read:
  111         817.804 Financial requirements; disclosure and financial
  112  reporting.—
  113         (1) A credit counseling organization must Any person
  114  engaged in debt management services or credit counseling
  115  services shall:
  116         (a) Obtain from a licensed certified public accountant an
  117  annual audit that is conducted in accordance with generally
  118  accepted auditing standards and that includes shall include all
  119  of the organization’s accounts of such person in which the funds
  120  of consumers debtors are deposited and from which payments are
  121  made to creditors on behalf of consumers debtors.
  122         (b) Obtain and maintain at all times insurance coverage for
  123  employee dishonesty, depositor’s forgery, and computer fraud.
  124  The insurance coverage must be in an amount not less than the
  125  greater of $100,000 or 10 percent of the monthly average of the
  126  aggregate amount of all deposits made by consumers to the
  127  organization for distribution to creditors with such person by
  128  all debtors for the 6 months immediately preceding the date of
  129  initial application for or renewal of the insurance. The
  130  deductible on such coverage may shall not exceed 10 percent of
  131  the face amount of the policy coverage.
  132         (c)Obtain and maintain a surety bond in the amount of
  133  $100,000 from a surety company authorized to do business in this
  134  state. The bond shall be in favor of the state for the use and
  135  benefit of any consumer who suffers or sustains any loss or
  136  damage by reason of any violation of the provisions of this
  137  part.
  138         (2) A copy of the annual audit and insurance policies
  139  required by this section must shall be available for public
  140  inspection at each branch location of the organization. Copies
  141  shall be provided, upon written request, to any party requesting
  142  a copy for a charge that does not to exceed the cost of copying
  143  the reproduction of documents.
  144         Section 5. Section 817.8045, Florida Statutes, is created
  145  to read:
  146         817.8045Service contracts.—
  147         (1)The service contract between the credit counseling
  148  organization and the consumer must be signed and dated by the
  149  consumer and include all of the following:
  150         (a)The following statement in at least 12-point uppercase
  151  type at the top of the service contract:
  152  
  153         IMPORTANT:IT IS RECOMMENDED THAT YOU CONTACT YOUR
  154  CREDITORS BEFORE SIGNING THIS CONTRACT. YOUR CREDITORS MAY BE
  155  WILLING TO NEGOTIATE A PAYMENT PLAN OR A RESTRUCTURING OF YOUR
  156  DEBT FREE OF CHARGE.
  157  
  158         YOUR FAILURE TO DIRECTLY CONTACT YOUR CREDITORS MAY RESULT
  159  IN LATE FEES, ADDITIONAL DEBTS, AND AN ADVERSE CREDIT RATING.
  160  
  161         (b)A full and detailed description of the services to be
  162  performed by the credit counseling organization for the
  163  consumer, including all guarantees and all promises of full or
  164  partial refunds, and the estimated date or length of time by
  165  which the services are to be performed.
  166         (c)All terms and conditions of payment, including the
  167  total of all payments to be made by the consumer and the
  168  specific amount of any payments to be made to the credit
  169  counseling organization or to any other person.
  170         (d)The organization’s principal business address and the
  171  name and address of its agent in the state authorized to receive
  172  service of process.
  173         (e)A clear and conspicuous statement in boldface type, in
  174  the immediate proximity to the space reserved for the consumer’s
  175  signature, which states: “You, the consumer, may cancel this
  176  service contract at any time prior to midnight of the 5th
  177  business day after the date of the signing this contract. [See
  178  the attached Notice of Right to Cancel for further explanation
  179  of this right.]”
  180         (f)A Notice of Right to Cancel attached to the contract,
  181  in duplicate and easily detachable, which contains the following
  182  statement in at least 12-point uppercase type:
  183  
  184                      NOTICE OF RIGHT TO CANCEL                    
  185  
  186         YOU MAY CANCEL ANY CONTRACT FOR DEBT MANAGEMENT OR CREDIT
  187  COUNSELING SERVICES WITHIN 5 BUSINESS DAYS AFTER THE DATE THE
  188  CONTRACT IS SIGNED BY YOU WITHOUT INCURRING ANY PENALTY OR
  189  OBLIGATION.
  190  
  191         YOUR PAYMENT MUST BE RETURNED TO YOU WITHIN 10 BUSINESS
  192  DAYS AFTER RECEIPT OF YOUR CANCELLATION NOTICE.
  193  
  194         TO CANCEL THIS CONTRACT, MAIL OR DELIVER A SIGNED AND DATED
  195  COPY OF THIS CANCELATION NOTICE OR ANY OTHER WRITTEN NOTICE
  196  CLEARLY INDICATING YOUR DESIRE TO CANCEL YOUR CONTRACT.
  197  
  198         TO:...(name of credit counseling organization)...
  199         AT:...(address)................
  200  
  201         BY SIGNING AND DATING THIS NOTICE, I HEREBY CANCEL MY
  202  SERVICE CONTRACT, EXECUTED ON:...(date service contract
  203  signed)...
  204  
  205         ...(Signature of Consumer)...
  206         ...(Date)....................
  207         ...(Address).................
  208         ...(Phone Number)............
  209  
  210         (2)The credit counseling organization must provide the
  211  consumer, at the time the documents are signed, with a copy of
  212  the completed service contract and all other documents the
  213  credit counseling organization requires the consumer to sign.
  214         Section 6. Section 817.805, Florida Statutes, is amended to
  215  read:
  216         817.805 Disbursement of funds.—A credit counseling
  217  organization must Any person engaged in debt management or
  218  credit counseling services shall disburse to the appropriate
  219  creditors all funds received from a consumer debtor, less any
  220  fees permitted by s. 817.802 and any creditor contributions,
  221  within 30 days after receipt of such funds. However, a creditor
  222  contribution may not reduce any sums to be credited to the
  223  account of a consumer debtor making a payment to the
  224  organization credit counseling agency for further payment to the
  225  creditor. Further, a credit counseling organization must any
  226  person engaged in such services shall maintain a separate trust
  227  account for the receipt of any funds from consumers debtors and
  228  the disbursement of such funds on behalf of such consumers
  229  debtors.
  230         Section 7. Section 817.806, Florida Statutes, is amended to
  231  read:
  232         817.806 Violations.—
  233         (1) Any person who violates any provision of this part
  234  commits an unfair or deceptive trade practice as defined in part
  235  II of chapter 501. Violators are shall be subject to the
  236  penalties and remedies provided therein. Further, any consumer
  237  injured by a violation of this part may bring an action for
  238  recovery of damages. Judgment shall be entered for actual
  239  damages, but in no case less than the amount paid by the
  240  consumer to the credit counseling organization agency, plus
  241  reasonable attorney’s fees and costs.
  242         (2) Any person who violates any provision of this part
  243  commits a felony of the third degree, punishable as provided in
  244  s. 775.082 or s. 775.083.
  245         Section 8. This act shall take effect October 1, 2009.
  246  
  247  ================= T I T L E  A M E N D M E N T ================
  248         And the title is amended as follows:
  249         Delete everything before the enacting clause
  250  and insert:
  251                        A bill to be entitled                      
  252         An act relating to credit counseling services;
  253         amending s. 817.801, F.S.; defining and redefining
  254         terms; amending s. 817.802, F.S.; prohibiting a credit
  255         counseling organization from engaging in certain
  256         additional specified acts; deleting a provision that
  257         allows the organization to collect a fee for
  258         insufficient fund transactions; amending s. 817.803,
  259         F.S.; revising provisions relating to an exception
  260         provided to attorneys providing representation to
  261         clients; amending s. 817.804, F.S.; requiring a credit
  262         counseling organization to obtain a surety bond;
  263         creating s. 817.8045, F.S.; providing for service
  264         contracts; requiring certain provisions to be included
  265         in such contracts; requiring the credit counseling
  266         organization to provide the consumer with copies of
  267         all signed documents; amending ss. 817.805 and
  268         817.806, F.S.; conforming terms to changes made by the
  269         act; providing an effective date.