Florida Senate - 2024                                     SB 902
       
       
        
       By Senator Boyd
       
       
       
       
       
       20-00355B-24                                           2024902__
    1                        A bill to be entitled                      
    2         An act relating to motor vehicle retail financial
    3         agreements; amending s. 520.02, F.S.; revising the
    4         definition of the term “guaranteed asset protection
    5         product”; amending s. 520.07, F.S.; prohibiting
    6         certain entities from deducting more than a specified
    7         amount in administrative fees when providing a refund
    8         of a guaranteed asset protection product; authorizing
    9         guaranteed asset protection products to be cancelable
   10         or noncancelable under certain circumstances;
   11         authorizing certain entities to pay refunds directly
   12         to the holder or administrator of a loan under certain
   13         circumstances; creating s. 520.151, F.S.; providing a
   14         short title; creating s. 520.152, F.S.; defining
   15         terms; creating s. 520.153, F.S.; authorizing the
   16         offer, sale, or gift of vehicle value protection
   17         agreements in compliance with a certain act;
   18         specifying a requirement regarding the amount charged
   19         or financed for a vehicle value protection agreement;
   20         prohibiting the conditioning of credit offers or terms
   21         for the sale or lease of a motor vehicle upon a
   22         consumer’s payment for or financing of any charge for
   23         a vehicle value protection agreement; authorizing
   24         discounting or giving the vehicle value protection
   25         agreement at no charge under certain circumstances;
   26         authorizing providers to use an administrator or other
   27         designee for administration of vehicle value
   28         protection agreements; prohibiting vehicle value
   29         protection agreements from being sold under certain
   30         circumstances; specifying financial security
   31         requirements for providers; prohibiting additional
   32         financial security requirements from being imposed on
   33         providers; creating s. 520.154, F.S.; requiring
   34         vehicle value protection agreements to include certain
   35         disclosures in writing, in clear and understandable
   36         language; requiring vehicle value protection
   37         agreements to state the terms, restrictions, or
   38         conditions governing cancellation by the provider or
   39         the contract holder; specifying requirements for
   40         notice by the provider, refund of fees, and deduction
   41         of fees in the event the vehicle value protection
   42         agreement is canceled; creating s. 520.155, F.S.;
   43         providing an exemption for vehicle value protection
   44         agreements in connection with a commercial
   45         transaction; creating s. 520.156, F.S.; providing
   46         noncriminal penalties; defining the term “violations
   47         of a similar nature”; amending s. 521.003, F.S.;
   48         defining the term “excess wear and use waiver”;
   49         conforming a provision to changes made by the act;
   50         creating s. 521.007, F.S.; authorizing a retail lessee
   51         to contract with a retail lessor for an excess wear
   52         and use waiver; prohibiting conditioning the terms of
   53         the consumer’s motor vehicle lease on his or her
   54         payment for any excess wear and use waiver;
   55         authorizing discounting or giving the excess wear and
   56         use waiver at no charge under certain circumstances;
   57         requiring certain disclosures for a lease agreement
   58         that includes an excess wear and use waiver; providing
   59         construction; providing an effective date.
   60          
   61  Be It Enacted by the Legislature of the State of Florida:
   62  
   63         Section 1. Subsection (7) of section 520.02, Florida
   64  Statutes, is amended to read:
   65         520.02 Definitions.—In this act, unless the context or
   66  subject matter otherwise requires:
   67         (7) “Guaranteed asset protection product” means a loan,
   68  lease, or retail installment contract term, or modification or
   69  addendum to a loan, lease, or retail installment contract, under
   70  which a creditor agrees, with or without a separate charge, to
   71  cancel or waive a customer’s liability for payment of some or
   72  all of the amount by which the debt exceeds the value of the
   73  collateral that has incurred total physical damage or is the
   74  subject of an unrecovered theft. A guaranteed asset protection
   75  product may also provide, with or without a separate charge, a
   76  benefit that waives a portion of, or provides a customer with a
   77  credit toward, the purchase of a replacement motor vehicle. Such
   78  a product is not insurance for purposes of the Florida Insurance
   79  Code. This subsection also applies to all guaranteed asset
   80  protection and related products issued before October 1, 2008.
   81         Section 2. Paragraph (g) of subsection (11) of section
   82  520.07, Florida Statutes, is amended, and paragraphs (h) and (i)
   83  are added to that subsection, to read:
   84         520.07 Requirements and prohibitions as to retail
   85  installment contracts.—
   86         (11) In conjunction with entering into any new retail
   87  installment contract or contract for a loan, a motor vehicle
   88  retail installment seller as defined in s. 520.02, a sales
   89  finance company as defined in s. 520.02, or a retail lessor as
   90  defined in s. 521.003, and any assignee of such an entity, may
   91  offer, for a fee or otherwise, optional guaranteed asset
   92  protection products in accordance with this chapter. The motor
   93  vehicle retail installment seller, sales finance company, retail
   94  lessor, or assignee may not require the purchase of a guaranteed
   95  asset protection product as a condition for making the loan. In
   96  order to offer any guaranteed asset protection product, a motor
   97  vehicle retail installment seller, sales finance company, or
   98  retail lessor, and any assignee of such an entity, shall comply
   99  with the following:
  100         (g) If a contract for a guaranteed asset protection product
  101  is terminated, the entity shall refund to the buyer any unearned
  102  fees paid for the contract unless the contract provides
  103  otherwise. A refund is not due to a consumer who receives a
  104  benefit under such product. In order to receive a refund, the
  105  buyer must notify the entity of the event terminating the
  106  contract and request a refund within 90 days after the
  107  occurrence of the event terminating the contract. An entity may
  108  offer a buyer a contract that does not provide for a refund only
  109  if the entity also offers that buyer a bona fide option to
  110  purchase a comparable contract that provides for a refund. An
  111  entity may not deduct more than $75 in administrative fees from
  112  a refund made under this subsection.
  113         (h)Guaranteed asset protection products may be cancelable
  114  or noncancelable after a free-look period as defined in s.
  115  520.152.
  116         (i)If the termination of the guaranteed asset protection
  117  product occurs because of a default under the retail installment
  118  contract or contract for a loan, the repossession of the motor
  119  vehicle associated with the retail installment contract or
  120  contract for a loan, or any other termination of the retail
  121  installment contract or contract for a loan, the entity may pay
  122  any refund due directly to the holder or administrator and apply
  123  the refund as a reduction of the amount owed under the retail
  124  installment contract or contract for a loan, unless the buyer
  125  can show that the retail installment contract has been paid in
  126  full.
  127         Section 3. Section 520.151, Florida Statutes, is created to
  128  read:
  129         520.151Florida Vehicle Value Protection Agreements Act.
  130  Sections 520.151-520.156 may be cited as the “Florida Vehicle
  131  Value Protection Agreements Act.
  132         Section 4. Section 520.152, Florida Statutes, is created to
  133  read:
  134         520.152 Definitions.—As used in ss. 520.151-520.156, unless
  135  the context or subject matter otherwise requires, the term:
  136         (1)“Administrator” means the person who is responsible for
  137  the administrative or operational function of managing vehicle
  138  value protection agreements, including, but not limited to, the
  139  adjudication of claims or benefit requests by contract holders.
  140         (2)“Commercial transaction” means a transaction in which
  141  the motor vehicle subject to the transaction is used primarily
  142  for business or commercial purposes.
  143         (3)“Commission” means the Financial Services Commission.
  144         (4)“Contract holder” means a person who is the purchaser
  145  or holder of a vehicle value protection agreement.
  146         (5)“Finance agreement” means a loan, retail installment
  147  sales contract, or lease for the purchase, refinancing, or lease
  148  of a motor vehicle.
  149         (6)“Free-look period” means the period of time, commencing
  150  on the effective date of the contract, during which the buyer
  151  may cancel the contract for a full refund of the purchase price.
  152  This period may not be shorter than 30 days.
  153         (7)“Motor vehicle” has the same meaning as provided in s.
  154  520.02.
  155         (8)“Person” means an individual, a partnership, a
  156  corporation, an association, or any other group, however
  157  organized.
  158         (9)“Provider” means a person that is obligated to provide
  159  a benefit under a vehicle value protection agreement. A provider
  160  may function as an administrator or retain the services of a
  161  third-party administrator.
  162         (10)“Vehicle value protection agreement” includes a
  163  contractual agreement that provides a benefit toward either the
  164  reduction of some or all of the contract holder’s current
  165  finance agreement deficiency balance or the purchase or lease of
  166  a replacement motor vehicle or motor vehicle services upon the
  167  occurrence of an adverse event to the motor vehicle, including,
  168  but not limited to, loss, theft, damage, obsolescence,
  169  diminished value, or depreciation. The term does not include
  170  guaranteed asset protection products as defined in s. 520.02.
  171  Such a product is not insurance for purposes of the Florida
  172  Insurance Code.
  173         Section 5. Section 520.153, Florida Statutes, is created to
  174  read:
  175         520.153Requirements and prohibitions as to vehicle value
  176  protection agreements.—
  177         (1)Vehicle value protection agreements may be offered,
  178  sold, or given to consumers in this state in compliance with
  179  this act.
  180         (2)Notwithstanding any other law, any amount charged or
  181  financed for a vehicle value protection agreement is not
  182  considered a finance charge or interest and must be separately
  183  stated in the finance agreement and in the vehicle value
  184  protection agreement.
  185         (3)The extension of credit, the terms of credit, or the
  186  terms of the related motor vehicle sale or lease may not be
  187  conditioned upon the consumer’s payment for or financing of any
  188  charge for a vehicle value protection agreement. However, a
  189  vehicle value protection agreement may be discounted or given at
  190  no charge in connection with the purchase of other noncredit
  191  related goods or services.
  192         (4)A provider may use an administrator or other designee
  193  to administer a vehicle value protection agreement.
  194         (5)A vehicle value protection agreement may not be sold to
  195  any person unless he or she has been or will be provided access
  196  to a copy of such vehicle value protection agreement at a
  197  reasonable time after such vehicle value protection agreement is
  198  sold.
  199         (6)A vehicle value protection agreement may not be sold if
  200  coverage is duplicative of another vehicle value protection
  201  agreement sold to a person or duplicative of a guaranteed asset
  202  protection product.
  203         (7)Each provider shall do one of the following:
  204         (a)Insure all of its vehicle value protection agreements
  205  under a policy that pays or reimburses the contract holder in
  206  the event the provider fails to perform its obligations under
  207  the vehicle value protection agreement. The insurer must be
  208  licensed or otherwise authorized or eligible to do business in
  209  this state.
  210         (b)Maintain a funded reserve account for its obligations
  211  under its contracts issued and outstanding in this state. The
  212  reserves may not be less than 40 percent of gross consideration
  213  received, less claims paid, on the sale of the vehicle value
  214  protection agreement for all in-force contracts in this state.
  215  The reserve must be placed in trust with the commission and have
  216  a financial security deposit valued at not less than 5 percent
  217  of the gross consideration received, less claims paid, on the
  218  sale of the vehicle value protection agreements for all vehicle
  219  value protection agreements issued and in force in this state,
  220  but at least $25,000. The reserve account must consist of one of
  221  the following:
  222         1.A surety bond issued by an authorized surety.
  223         2.Securities of the type eligible for deposit by insurers
  224  as provided in s. 625.52.
  225         3.Cash.
  226         4.A letter of credit issued by a qualified financial
  227  institution.
  228         5.Another form of security prescribed by commission
  229  regulation.
  230         (c)Maintain, or together with its parent corporation
  231  maintain, a net worth or stockholders’ equity of $100 million
  232  and, upon request, provide the commission with a copy of the
  233  provider’s or the provider’s parent company’s Form 10-K or Form
  234  20-F filed with the Securities and Exchange Commission within
  235  the last calendar year, or if the company does not file with the
  236  Securities and Exchange Commission, a copy of the company’s
  237  audited financial statements, which must show a net worth of the
  238  provider or its parent company of at least $100 million. If the
  239  provider’s parent company’s Form 10-K, Form 20-F, or financial
  240  statements are filed to meet the provider’s financial security
  241  requirement, the parent company must agree to guarantee the
  242  obligations of the provider relating to vehicle value protection
  243  agreements sold by the provider in this state.
  244         (8)A financial security requirement other than those
  245  imposed in subsection (7) may not be imposed on vehicle value
  246  protection agreement providers.
  247         Section 6. Section 520.154, Florida Statutes, is created to
  248  read:
  249         520.154Disclosures.—
  250         (1)A vehicle value protection agreement must disclose in
  251  writing, in clear, understandable language, all of the
  252  following:
  253         (a)The name and address of the provider, contract holder,
  254  and administrator, if any.
  255         (b)The terms of the vehicle value protection agreement,
  256  including, but not limited to, the purchase price to be paid by
  257  the contract holder, if any, the requirements for eligibility
  258  and conditions of coverage, and any exclusions.
  259         (c)Whether the vehicle value protection agreement may be
  260  canceled by the contract holder during a free-look period as
  261  defined in s. 520.152, and that, in the event of cancellation,
  262  the contract holder is entitled to a full refund of the purchase
  263  price, if any, so long as no benefits have been provided.
  264         (d)The procedure the contract holder must follow, if any,
  265  to obtain a benefit under the terms and conditions of the
  266  vehicle value protection agreement, including, if applicable, a
  267  telephone number, website, or mailing address where the contract
  268  holder may apply for a benefit.
  269         (e)Whether the vehicle value protection agreement is
  270  cancelable after the free-look period and the conditions under
  271  which it may be canceled, including the procedures for
  272  requesting any refund of the unearned purchase price paid by the
  273  contract holder. In the event that the agreement is cancelable,
  274  it must include the methodology for calculating any refund due
  275  of the unearned purchase price of the vehicle value protection
  276  agreement.
  277         (f)That the extension of credit, the terms of the credit,
  278  or the terms of the related motor vehicle sale or lease may not
  279  be conditioned upon the purchase of the vehicle value protection
  280  agreement.
  281         (2)A vehicle value protection agreement must state the
  282  terms, restrictions, or conditions governing cancellation of the
  283  vehicle value protection agreement before the termination or
  284  expiration date of the vehicle value protection agreement by
  285  either the provider or the contract holder. The provider of the
  286  vehicle value protection agreement shall mail a written notice
  287  to the contract holder at the last known address of the contract
  288  holder contained in the records of the provider at least 5 days
  289  before cancellation by the provider, which notice must state the
  290  effective date of the cancellation and the reason for the
  291  cancellation. However, such prior notice is not required if the
  292  reason for cancellation is nonpayment of the provider fee, a
  293  material misrepresentation by the contract holder to the
  294  provider or administrator, or a substantial breach of duties by
  295  the contract holder relating to the covered motor vehicle or its
  296  use. If a vehicle value protection agreement is canceled by the
  297  provider for a reason other than nonpayment of the provider fee,
  298  the provider must refund to the contract holder 100 percent of
  299  the unearned pro rata provider fee paid by the contract holder,
  300  if any. If coverage under the vehicle value protection agreement
  301  continues after a claim, any refund may reflect a deduction for
  302  claims paid and, at the discretion of the provider, an
  303  administrative fee of not more than $75.
  304         Section 7. Section 520.155, Florida Statutes, is created to
  305  read:
  306         520.155Commercial transactions exempt.—Sections 520.154
  307  and 520.155 do not apply to vehicle value protection agreements
  308  offered in connection with a commercial transaction.
  309         Section 8. Section 520.156, Florida Statutes, is created to
  310  read:
  311         520.156Penalties.—A provider, an administrator, or any
  312  other person who willfully and intentionally violates ss.
  313  520.151-520.155 commits a noncriminal violation as defined in s.
  314  775.08(3), punishable by a fine not to exceed $500 per violation
  315  and not more than $10,000 in the aggregate for all violations of
  316  a similar nature. For purposes of this section, the term
  317  violations of a similar nature” means violations that consist
  318  of the same or similar course of conduct, action, or practice,
  319  irrespective of the number of times the action, conduct, or
  320  practice determined to be a violation of ss. 520.151-520.155
  321  occurred.
  322         Section 9. Section 521.003, Florida Statutes, is amended to
  323  read:
  324         521.003 Definitions.—As used in ss. 521.001-521.007 ss.
  325  521.001-521.006, the term:
  326         (1) “Adjusted or net capitalized cost” means the
  327  capitalized cost, less any capitalized cost-reduction payments
  328  made by the retail lessee at the inception of the lease
  329  agreement. The adjusted or net capitalized cost shall serve as
  330  the basis for calculating the amount of the retail lessee’s
  331  periodic payment under the lease agreement.
  332         (2) “Capitalized cost” means the agreed-upon total amount
  333  which, after deducting any capitalized cost reductions, serves
  334  as the basis for calculating the amount of the periodic payment
  335  under the lease agreement. The capitalized cost may include,
  336  without limitation:
  337         (a) Taxes.
  338         (b) Registration fees.
  339         (c) License fees.
  340         (d) Insurance charges.
  341         (e) Charges for guaranteed auto protection or GAP coverage.
  342         (f) Charges for service contracts and extended warranties.
  343         (g) Fees and charges for accessories and for installing
  344  accessories.
  345         (h) Charges for delivery, service, and repair.
  346         (i) Administrative fees, acquisition fees, and any and all
  347  fees or charges for providing services incidental to the lease
  348  agreement.
  349         (j) The unpaid balance of any amount financed under an
  350  outstanding motor vehicle loan agreement or motor vehicle retail
  351  installment contract with respect to a motor vehicle used as a
  352  trade-in.
  353         (k) The unpaid portion of the early termination obligation
  354  under an outstanding lease agreement.
  355         (l) The first periodic payment due at the inception of the
  356  lease agreement.
  357         (3) “Capitalized cost reduction” means a payment made by
  358  cash, check, credit card debit, net vehicle trade-in, rebate, or
  359  other similar means in the nature of a down payment or credit,
  360  made by the retail lessee at the inception of the lease
  361  agreement, for the purpose of reducing the capitalized cost and
  362  may shall not include any periodic payments received by the
  363  retail lessor at the inception of the lease agreement.
  364         (4) “Excess wear and use waiver” means a contractual
  365  agreement wherein a lessor agrees, with or without a separate
  366  charge, to cancel or waive all or part of amounts that may
  367  become due under a lease agreement as a result of excessive wear
  368  and use of a motor vehicle, which agreement must be part of, or
  369  a separate addendum to, the lease agreement. Such waivers may
  370  also cancel or waive amounts due for excess mileage.
  371         (5) “Lease agreement” means a written agreement entered
  372  into in this state for the transfer from a retail lessor to a
  373  retail lessee of the right to possess and use a motor vehicle in
  374  exchange for consideration for a scheduled term exceeding 4
  375  months, whether or not the retail lessee has the option to
  376  purchase or otherwise become the owner of the motor vehicle upon
  377  expiration of the agreement. The term does not include an
  378  agreement which covers an absolute sale, a sale pending
  379  approval, or a retail installment sale, including a transaction
  380  or contract which is governed by the Motor Vehicle Retail Sales
  381  Finance Act of Florida.
  382         (6)(5) “Lease transaction” means a presentation made to the
  383  retail lessee concerning the motor vehicle, including a sales
  384  presentation or a document presented to the retail lessee,
  385  resulting in the execution of a lease agreement.
  386         (7)(6) “Motor vehicle” means a motor vehicle of the type
  387  and kind required to be registered and titled under chapters 319
  388  and 320, excluding a recreational vehicle, moped, motorcycle
  389  powered by a motor with a displacement of 50 cubic centimeters
  390  or less, or a mobile home.
  391         (8)(7) “Retail lessee” means an individual who executes a
  392  lease agreement for a motor vehicle from a retail lessor
  393  primarily for personal, family, or household purposes.
  394         (9)(8) “Retail lessor” means a person who regularly engages
  395  in the business of selling or leasing motor vehicles and who
  396  offers or arranges a lease agreement for a motor vehicle. The
  397  term includes an agent or affiliate who acts on behalf of the
  398  retail lessor and excludes any assignee of the lease agreement.
  399         Section 10. Section 521.007, Florida Statutes, is created
  400  to read:
  401         521.007 Excess wear and use waiver.—
  402         (1)A retail lessee may contract with a retail lessor for
  403  an excess wear and use waiver in connection with a lease
  404  agreement.
  405         (2)The terms of the related motor vehicle lease may not be
  406  conditioned upon the consumer’s payment for any excess wear and
  407  use waiver. However, excess wear and use waivers may be
  408  discounted or given at no charge in connection with the purchase
  409  of other noncredit-related goods.
  410         (3)A lease agreement that includes an excess wear and use
  411  waiver must disclose all of the following:
  412         (a)The total charge for the excess wear and use waiver.
  413         (b)Any exclusions or limitations on the amount of excess
  414  wear and use which may be waived under the excess wear and use
  415  waiver.
  416         (c)The terms, restrictions, or conditions governing
  417  cancellation of the excess wear and use waiver before the
  418  termination or expiration of the excess wear and use waiver,
  419  which may include an administrative fee of not more than $75.
  420         (4)An excess wear and use waiver is not insurance for
  421  purposes of the Florida Insurance Code.
  422         Section 11. This act shall take effect October 1, 2024.