The Florida Senate

648.442  Collateral security.--

(1)  Collateral security or other indemnity accepted by a bail bond agent, except a promissory note or an indemnity agreement, shall be returned upon final termination of liability on the bond. Such collateral security or other indemnity required by the bail bond agent must be reasonable in relation to the amount of the bond. Collateral security may not be used by the bail bond agent for personal benefit or gain and must be returned in the same condition as received. A bail bond agent may accept collateral security in excess of $50,000 cash per bond, provided any amount over $50,000 cash is payable to the insurer in the form of a cashier's check, United States postal money order, certificates of deposit, or wire transfer and is remitted to and held by the insurer. A copy of IRS Form 8300 must be retained as part of the defendant's file if it is otherwise required. A quitclaim deed for property may not be taken as collateral. Other acceptable forms of security or indemnity may consist of the following:

(a)  A promissory note;

(b)  An indemnity agreement;

(c)  A real property mortgage in the name of the insurer;

(d)  Any Uniform Commercial Code filing; or

(e)  Any other type of security approved by the department. The department may approve other security only if, after considering the liquidity and other characteristics of the security, it determines that the security is of a type which increases the probability that the defendant will in fact appear in court or increases the probability that the defendant will be subsequently apprehended by the bail bond agent.

(2)  When a bail bond agent accepts collateral, a written, numbered receipt shall be given, and this receipt shall give in detail a full account of the collateral received. The bail bond agent shall also give copies of documents rendered under subsection (1) to the indemnitor.

(3)  Collateral security shall be received and held in the insurer's name by the bail bond agent in a fiduciary capacity and, prior to any forfeiture of bail, shall be kept separate and apart from any other funds or assets of such bail bond agent. When collateral security in excess of $5,000 cash or its equivalent is received by a bail bond agent, the entire amount shall be immediately forwarded to the insurer. Such collateral security may be placed in an interest-bearing account to accrue to the benefit of the person giving the collateral security, and the bail bond agent, insurer, or managing general agent may not make any pecuniary gain on the collateral security deposited. Any such account shall be in a depository office of a financial institution located in this state. The insurer shall be liable for all collateral received. If the bail bond agent or managing general agent fails to return the collateral to the indemnitor upon final termination of liability on the bond, the surety shall be liable for the collateral and shall return the actual collateral to the indemnitor or, in the event that the surety cannot locate the collateral, the surety shall pay the indemnitor pursuant to the provisions of this section.

(4)  When the obligation of the surety on the bond or bonds has been released in writing by the court, the collateral shall be returned to the rightful owner named in the collateral receipt unless another disposition is provided for by legal assignment of the right to receive the collateral to another person.

(5)  If a forfeiture occurs, the agent or insurer shall give 10 days' written notice of intent to convert the collateral deposit into cash to satisfy the forfeiture to the indemnitor and principal. Notice shall be sent by certified mail to the last known address of the indemnitor and principal.

(6)  The bail bond agent or insurer must convert the collateral to cash within a reasonable period of time and return that which is in excess of the face value of the bond minus the actual and reasonable expenses of converting the collateral to cash. In no event shall these expenses exceed 20 percent of the face value of the bond. However, upon motion and proof that the actual, reasonable expenses exceed 20 percent, the court may allow recovery of the full amount of such actual, reasonable expenses. If there is a remission of a forfeiture, which had required the surety to pay the bond to the court, the surety shall pay to the indemnitor the value of any collateral received for the bond, minus any actual expenses and costs permitted herein.

(7)  No bail bond agent or insurer shall solicit or accept a waiver of any of the provisions of this section or enter into any agreement as to the value of the collateral.

(8)  Prior to the appointment of a bail bond agent who is currently or was previously appointed by another insurer, the bail bond agent must file with the department a sworn and notarized affidavit, on a form prescribed by the department, stating that:

(a)  There has been no loss, misappropriation, conversion, or theft of any collateral being held by the agent in trust for any insurer by which the agent is currently or was previously appointed; and

(b)  All collateral being held in trust by the agent and all records for any insurer by which the agent is currently or was previously appointed are available for immediate audit and inspection by the department, the insurer, or the managing general agent, and will upon demand of the department or insurer be transmitted to the insurer for whom the collateral is being held in trust.

(9)  The department shall establish by rule the form of the affidavit and the statement identifying the amount and source of the security as specified in s. 903.14

(10)  An indemnity agreement may not be entered into between a principal and either a surety or any agent of the surety, and an application may not be accepted either by a bail bond agent engaged in the bail bond business or by a surety company for a bail bond in which an indemnity agreement is required between a principal and either a surety or any agent of such surety, unless the indemnity agreement reads as follows: "For good and valuable consideration, the undersigned principal agrees to indemnify and hold harmless the surety company or its agent for all losses not otherwise prohibited by law or by rules of the Department of Financial Services."

(11)  Any person who violates this section is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084

History.--ss. 24, 72, ch. 82-175; s. 141, ch. 83-216; ss. 26, 50, 51, ch. 84-103; s. 2, ch. 86-151; ss. 1, 5, ch. 87-321; ss. 31, 46, 47, ch. 90-131; s. 4, ch. 91-429; s. 32, ch. 96-372; s. 1, ch. 98-39; s. 23, ch. 2002-260; s. 1659, ch. 2003-261.