Florida Senate - 2009                                    SB 1132
       
       
       
       By Senator Fasano
       
       
       
       
       11-00717A-09                                          20091132__
    1                        A bill to be entitled                      
    2         An act relating to credit counseling services;
    3         amending s. 817.801, F.S.; defining and redefining
    4         terms; creating s. 817.8015, F.S.; requiring credit
    5         counseling organizations to annually register with the
    6         Office of Financial Regulation; providing registration
    7         requirements; providing grounds for denying
    8         registration; providing for a registration fee;
    9         authorizing the office to adopt rules; amending s.
   10         817.802, F.S.; prohibiting a credit counseling
   11         organization from engaging in certain additional
   12         specified acts; deleting a provision that allows the
   13         organization to collect a fee for insufficient fund
   14         transactions; amending s. 817.803, F.S.; revising
   15         provisions relating to an exception provided to
   16         attorneys providing representation to clients;
   17         amending s. 817.804, F.S.; requiring a credit
   18         counseling organization to obtain a surety bond;
   19         authorizing the office to adopt rules; creating s.
   20         817.8045, F.S.; providing for service contracts;
   21         requiring certain provisions to be included in such
   22         contracts; requiring the credit counseling
   23         organization to provide the consumer with copies of
   24         all signed documents; amending ss. 817.805 and
   25         817.806, F.S.; conforming terms to changes made by the
   26         act; providing an effective date.
   27         
   28  Be It Enacted by the Legislature of the State of Florida:
   29         
   30         Section 1. Section 817.801, Florida Statutes, is amended to
   31  read:
   32         817.801 Definitions.—As used in this part, the term:
   33         (1)“Control person” means any person who possesses the
   34  power, directly or indirectly, to affect the management or
   35  policies of a credit counseling organization, including, but not
   36  limited to, the organization's owners if the organization is a
   37  partnership or sole proprietorship, and the organization's
   38  corporate officers, corporate directors, resident agents, and
   39  trustees.
   40         (2)(1) “Credit counseling organization agency” means any
   41  person organization providing debt management services or credit
   42  counseling services.
   43         (3)(2) “Credit counseling services” means confidential
   44  money management, debt reduction, and financial educational
   45  services. The term does not include foreclosure-related rescue
   46  services as defined in s. 501.1377.
   47         (4)(3) “Creditor contribution” means any sum that a
   48  creditor agrees to contribute to a credit counseling
   49  organization agency, whether directly or by setoff against
   50  amounts otherwise payable to the creditor on behalf of a
   51  consumer debtors.
   52         (5)(4) “Debt management services” means services provided
   53  to a consumer debtor by a credit counseling organization for a
   54  fee to:
   55         (a) Effect the adjustment, compromise, or discharge of any
   56  unsecured account, note, or other indebtedness of the consumer,
   57  except for residential mortgage loan obligations debtor; or
   58         (b) Receive from the consumer debtor and disburse to a
   59  creditor any money or other thing of value.
   60         (6)“Office” means the Office of Financial Regulation.
   61         (7)(5) “Person” has the same meaning as in s. 1.01 means
   62  any individual, corporation, partnership, trust, association, or
   63  other legal entity.
   64         Section 2. Section 817.8015, Florida Statutes, is created
   65  to read:
   66         817.8015Registration.—Each credit counseling organization
   67  doing business in this state must register and annually renew
   68  such registration with the office in accordance with this
   69  section.
   70         (1)To register or renew registration, a credit counseling
   71  organization shall provide the following to the office:
   72         (a)The organization's business or trade name, current
   73  mailing address, the address of each location or branch at which
   74  the organization conducts business and a designation of which
   75  location constitutes its principal place of business, and a list
   76  of each county in which the organization plans to do business
   77  during the next calendar year.
   78         (b)The full names, current addresses, current telephone
   79  numbers, social security numbers, and federal identification
   80  numbers for each control person of the organization.
   81         (c)A statement as to whether the organization is a
   82  domestic or foreign corporation and, if so, the state and date
   83  of incorporation, the charter number of the corporation, or, if
   84  a foreign corporation, the date the corporation first registered
   85  to do business in this state.
   86         (d)A statement indicating whether the organization or any
   87  control person holds a current telemarketing license from the
   88  Department of Agriculture and Consumer Services or, if not, an
   89  explanation as to why a telemarketing license has not been
   90  obtained.
   91         (e)A statement listing the names of any other businesses
   92  or entities through which a control person is currently
   93  operating or did business as a credit counseling organization
   94  within the 5 calendar years immediately preceding registration
   95  or registration renewal, and whether the control person was the
   96  subject of any state action, including suspension or revocation.
   97         (f)A statement identifying and explaining any ongoing or
   98  prior state or federal investigation or any civil, criminal, or
   99  administrative action taken against the organization or control
  100  persons, including a withholding of adjudication or conviction
  101  of any crime involving fraud, moral turpitude, or dishonest
  102  dealing.
  103         (g)A copy of all service contracts offered to consumers.
  104         (h)Pursuant to s. 817.804, a copy of the organization's
  105  annual audit and insurance policy, and the surety bond and
  106  related documentation required to be filed with the office.
  107         (2)A credit counseling organization changing its
  108  registered name, location, or agent for service of process at
  109  any time other than at the time of renewing its registration
  110  must notify the office of such change. The office must be
  111  notified in writing in advance of any change in the
  112  organization's business location. A registration is not valid
  113  for any organization that transacts business at a location other
  114  than those designated in its registration.
  115         (3)A registration issued under this section is not
  116  assignable or transferable.
  117         (4)The office may deny or refuse to renew the registration
  118  of any credit counseling organization based upon a determination
  119  that the organization or any of its control persons has:
  120         (a)Failed to meet the requirements for initial
  121  registration or renewal as provided in this section;
  122         (b)Been convicted of a crime involving fraud, moral
  123  turpitude, or dishonest dealing;
  124         (c)Not satisfied any fine or penalty arising out of any
  125  administrative or civil enforcement action brought by a
  126  governmental agency or individual and based upon conduct
  127  involving fraud, moral turpitude, dishonest dealing, or any
  128  violation of this part; or
  129         (d)Had a judgment entered against the credit counseling
  130  organization or the control persons in any action brought under
  131  the Florida Deceptive and Unfair Trade Practices Act or any
  132  action brought under this part.
  133         (5)The credit counseling organization shall pay a
  134  registration fee of $500 per year to the office. All moneys
  135  collected by the office shall be deposited into the office's
  136  Regulatory Trust Fund and used to administer this part.
  137         (6)The office may adopt rules to administer this section.
  138         Section 3. Section 817.802, Florida Statutes, is amended to
  139  read:
  140         817.802 Prohibited acts Unlawful fees and costs.—A credit
  141  counseling organization may not:
  142         (1) It is unlawful for any person, while engaging in debt
  143  management services or credit counseling services, to Charge or
  144  accept from a consumer debtor residing in this state, directly
  145  or indirectly, any payment for services before the execution of
  146  a written service contract, or charge or accept from a consumer
  147  a fee or contribution greater than $50 for the initial setup or
  148  initial consultation. Subsequently, the organization person may
  149  not charge or accept a fee or contribution from a consumer
  150  debtor residing in this state greater than $120 per year for
  151  additional consultations; however or, alternatively, if debt
  152  management services as defined in s. 817.801(4)(b) are provided,
  153  the organization person may charge the greater of 7.5 percent of
  154  the amount paid monthly by the consumer debtor to the
  155  organization person or $35 per month, whichever is greater.
  156         (2)Advise any consumer, directly or indirectly, not to
  157  contact or communicate with his or her creditors before or
  158  during the service contract period.
  159         (3)Make or use any false or misleading representations or
  160  omit any material fact in the offer or sale of services offered,
  161  or engage, directly or indirectly, in any fraudulent, false,
  162  misleading, unconscionable, unfair, or deceptive act or practice
  163  in connection with the offer or sale of any of the services of a
  164  credit counseling organization.
  165         (4)Provide services to a consumer without executing a
  166  service contract that complies with s. 817.8045.
  167         (5)Fail to provide copies of all service contracts and
  168  other documents the consumer is required to sign as provided
  169  under s. 817.8045.
  170         (6)Fail to perform any of the terms, conditions, and
  171  obligations provided in the service contract with the consumer.
  172         (7)Fail to obtain the annual audit, insurance coverage,
  173  and surety bond or fail to make such audit and coverage
  174  information available for public inspection as required by s.
  175  817.804.
  176         (2)This section does not prohibit any person, while
  177  engaging in debt management or credit counseling services, from
  178  imposing upon and receiving from a debtor a reasonable and
  179  separate charge or fee for insufficient funds transactions.
  180         Section 4. Section 817.803, Florida Statutes, is amended to
  181  read:
  182         817.803 Exceptions.—Nothing in This part does not apply
  183  applies to:
  184         (1) A person licensed to practice law in this state who is
  185  providing legal representation to a client with respect to
  186  credit counseling services or debt management and who does not
  187  engage in the business of providing credit counseling or debt
  188  management services on a continuing basis. Any Debt management
  189  or credit counseling services provided in the practice of law in
  190  this state;
  191         (2) A Any person who engages in debt adjustment to adjust
  192  the indebtedness owed to such person.; or
  193         (3) The following entities or their subsidiaries:
  194         (a) The Federal National Mortgage Association;
  195         (b) The Federal Home Loan Mortgage Corporation;
  196         (c) The Florida Housing Finance Corporation, a public
  197  corporation created in s. 420.504;
  198         (d) A bank, bank holding company, trust company, savings
  199  and loan association, credit union, credit card bank, or savings
  200  bank that is regulated and supervised by the Office of the
  201  Comptroller of the Currency, the Office of Thrift Supervision,
  202  the Federal Reserve, the Federal Deposit Insurance Corporation,
  203  the National Credit Union Administration, the Office of
  204  Financial Regulation of the Department of Financial Services, or
  205  any state banking regulator;
  206         (e) A consumer reporting agency as defined in the Federal
  207  Fair Credit Reporting Act, 15 U.S.C. s. 1681a ss. 1681-1681y, as
  208  it existed on April 5, 2004; or
  209         (f) Any subsidiary or affiliate of a bank holding company,
  210  its employees and its exclusive agents acting under written
  211  agreement.
  212         Section 5. Section 817.804, Florida Statutes, is amended to
  213  read:
  214         817.804 Financial requirements; disclosure and financial
  215  reporting.—
  216         (1) A credit counseling organization must Any person
  217  engaged in debt management services or credit counseling
  218  services shall:
  219         (a) Obtain from a licensed certified public accountant an
  220  annual audit that is conducted in accordance with generally
  221  accepted auditing standards and that includes shall include all
  222  of the organization's accounts of such person in which the funds
  223  of consumers debtors are deposited and from which payments are
  224  made to creditors on behalf of consumers debtors.
  225         (b) Obtain and maintain at all times insurance coverage for
  226  employee dishonesty, depositor's forgery, and computer fraud.
  227  The insurance coverage must be in an amount not less than the
  228  greater of $100,000 or 10 percent of the monthly average of the
  229  aggregate amount of all deposits made by consumers to the
  230  organization for distribution to creditors with such person by
  231  all debtors for the 6 months immediately preceding the date of
  232  initial application for or renewal of the insurance. The
  233  deductible on such coverage may shall not exceed 10 percent of
  234  the face amount of the policy coverage.
  235         (c)Obtain and maintain a surety bond in the amount of
  236  $100,000, valid upon registration, by a surety company
  237  authorized to do business in this state. The bond must be filed
  238  with the office and must designate the office as its sole
  239  beneficiary. The bond shall be in favor of the state for the use
  240  and benefit of any consumer who suffers or sustains any loss or
  241  damage by reason of any violation of the provisions of this
  242  part. The organization shall provide the office with
  243  documentation that the premiums have been paid in full and that
  244  the bond issued by the surety meets the requirements of this
  245  part. The aggregate liability of the surety to all persons may
  246  not exceed the amount of the bond.
  247         (2) A copy of the annual audit and insurance policies
  248  required by this section must shall be available for public
  249  inspection at each branch location of the organization. Copies
  250  shall be provided, upon written request, to any party requesting
  251  a copy for a charge that does not to exceed the cost of copying
  252  the reproduction of documents.
  253         (3)The office may adopt rules to administer this section.
  254         Section 6. Section 817.8045, Florida Statutes, is created
  255  to read:
  256         817.8045Service contracts.—
  257         (1)The service contract between the credit counseling
  258  organization and the consumer must be signed and dated by the
  259  consumer and include all of the following:
  260         (a)The following statement in at least 12-point uppercase
  261  type at the top of the service contract:
  262         IMPORTANT:IT IS RECOMMENDED THAT YOU CONTACT YOUR
  263         CREDITORS BEFORE SIGNING THIS CONTRACT. YOUR CREDITORS
  264         MAY BE WILLING TO NEGOTIATE A PAYMENT PLAN OR A
  265         RESTRUCTURING OF YOUR DEBT FREE OF CHARGE.
  266         YOUR FAILURE TO DIRECTLY CONTACT YOUR CREDITORS MAY
  267         RESULT IN LATE FEES, ADDITIONAL DEBTS, AND AN ADVERSE
  268         CREDIT RATING.
  269         (b)A full and detailed description of the services to be
  270  performed by the credit counseling organization for the
  271  consumer, including all guarantees and all promises of full or
  272  partial refunds, and the estimated date or length of time by
  273  which the services are to be performed.
  274         (c)All terms and conditions of payment, including the
  275  total of all payments to be made by the consumer and the
  276  specific amount of any payments to be made to the credit
  277  counseling organization or to any other person.
  278         (d)The organization's principal business address and the
  279  name and address of its agent in the state authorized to receive
  280  service of process.
  281         (e)A clear and conspicuous statement in boldface type, in
  282  the immediate proximity to the space reserved for the consumer's
  283  signature, which states: “You, the consumer, may cancel this
  284  service contract at any time prior to midnight of the 5th
  285  business day after the date of the signing this contract. [See
  286  the attached Notice of Right to Cancel for further explanation
  287  of this right.]”
  288         (f)A Notice of Right to Cancel attached to the contract,
  289  in duplicate and easily detachable, which contains the following
  290  statement in at least 12-point uppercase type:
  291                      NOTICE OF RIGHT TO CANCEL                    
  292         YOU MAY CANCEL ANY CONTRACT FOR DEBT MANAGEMENT OR
  293         CREDIT COUNSELING SERVICES WITHIN 5 BUSINESS DAYS
  294         AFTER THE DATE THE CONTRACT IS SIGNED BY YOU WITHOUT
  295         INCURRING ANY PENALTY OR OBLIGATION.
  296         YOUR PAYMENT MUST BE RETURNED TO YOU WITHIN 10
  297         BUSINESS DAYS AFTER RECEIPT OF YOUR CANCELLATION
  298         NOTICE.
  299         TO CANCEL THIS CONTRACT, MAIL OR DELIVER A SIGNED AND
  300         DATED COPY OF THIS CANCELATION NOTICE OR ANY OTHER
  301         WRITTEN NOTICE CLEARLY INDICATING YOUR DESIRE TO
  302         CANCEL YOUR CONTRACT.
  303         TO:...(name of credit counseling organization)...
  304         AT:...(address)................
  305         BY SIGNING AND DATING THIS NOTICE, I HEREBY
  306         CANCEL MY SERVICE CONTRACT, EXECUTED ON:...(date
  307         service contract signed)...
  308         ...(Signature of Consumer)...
  309         ...(Date)....................
  310         ...(Address).................
  311         ...(Phone Number)............
  312         (2)The credit counseling organization must provide the
  313  consumer, at the time the documents are signed, with a copy of
  314  the completed service contract and all other documents the
  315  credit counseling organization requires the consumer to sign.
  316         Section 7. Section 817.805, Florida Statutes, is amended to
  317  read:
  318         817.805 Disbursement of funds.—A credit counseling
  319  organization must Any person engaged in debt management or
  320  credit counseling services shall disburse to the appropriate
  321  creditors all funds received from a consumer debtor, less any
  322  fees permitted by s. 817.802 and any creditor contributions,
  323  within 30 days after receipt of such funds. However, a creditor
  324  contribution may not reduce any sums to be credited to the
  325  account of a consumer debtor making a payment to the
  326  organization credit counseling agency for further payment to the
  327  creditor. Further, a credit counseling organization must any
  328  person engaged in such services shall maintain a separate trust
  329  account for the receipt of any funds from consumers debtors and
  330  the disbursement of such funds on behalf of such consumers
  331  debtors.
  332         Section 8. Section 817.806, Florida Statutes, is amended to
  333  read:
  334         817.806 Violations.—
  335         (1) Any person who violates any provision of this part
  336  commits an unfair or deceptive trade practice as defined in part
  337  II of chapter 501. Violators are shall be subject to the
  338  penalties and remedies provided therein. Further, any consumer
  339  injured by a violation of this part may bring an action for
  340  recovery of damages. Judgment shall be entered for actual
  341  damages, but in no case less than the amount paid by the
  342  consumer to the credit counseling organization agency, plus
  343  reasonable attorney's fees and costs.
  344         (2) Any person who violates any provision of this part
  345  commits a felony of the third degree, punishable as provided in
  346  s. 775.082 or s. 775.083.
  347         Section 9. This act shall take effect July 1, 2009.