CODING: Words stricken are deletions; words underlined are additions.
HOUSE AMENDMENT
Bill No. HB 795
Amendment No. 1 (for drafter's use only)
CHAMBER ACTION
Senate House
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5 ORIGINAL STAMP BELOW
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11 The Committee on Business Regulation & Consumer Affairs
12 offered the following:
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14 Amendment (with title amendment)
15 On page 2, line 3 through 26, line 8,
16 remove from the bill: all of said lines
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18 and insert in lieu thereof:
19 Section 1. Short title.--This act may be cited as the
20 "Florida Title Loan Act."
21 Section 2. Definitions.--As used in this act, unless
22 the context otherwise requires:
23 (1) "Department" means the Department of Agriculture
24 and Consumer Services.
25 (2) "Commercially reasonable" means a sale or disposal
26 which occurs and can be construed as an arms length
27 transaction. Nonpublic sales or disposal of personal property
28 between licensees and business affiliates or family members
29 are sales and disposal which are presumed not to be in a
30 commercially reasonable fashion.
31 (3) "Executive officer" means the president, chief
1
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HOUSE AMENDMENT
Bill No. HB 795
Amendment No. 1 (for drafter's use only)
1 executive officer, chief financial officer, chief operating
2 officer, executive vice president, senior vice president,
3 secretary and treasurer.
4 (4) "Identification" means a government issued
5 photographic identification.
6 (5) "Licensee" means a person who is licensed pursuant
7 to the provisions of this act.
8 (6) "Loan property" means any personal property
9 certificate of title that is deposited with a title loan
10 lender in the course of the title loan lender's business and
11 is the subject of a title loan agreement.
12 (7) "Title loan agreement" means a written agreement
13 whereby a title loan lender agrees to make a loan of a
14 specific sum of money to a pledgor, and the pledgor agrees to
15 give the title loan lender a security interest in unencumbered
16 titled personal property, except by a title loan agreement,
17 owned by the pledgor.
18 (8) "Title loan lender" means any person who is
19 engaged in the business of making title loans or engaging in
20 title loan agreements with pledgors.
21 (9) "Title loan office" means the location at which,
22 or premises from which, a title loan lender regularly conducts
23 business.
24 (10) "Title loan transaction form" means the
25 instrument on which a title loan lender records title loan
26 agreements.
27 (11) "Titled personal property" means any personal
28 property that has as evidence of ownership a state-issued
29 certificate of title except for a mobile home that is the
30 primary residence of the pledgor.
31 (12) "Ultimate equitable owner" means a natural person
2
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HOUSE AMENDMENT
Bill No. HB 795
Amendment No. 1 (for drafter's use only)
1 who, directly or indirectly, owns or controls an ownership
2 interest in a corporation, a foreign corporation, an alien
3 business organization, or any other form of business
4 organization, regardless of whether such natural person owns
5 or controls such ownership interest through one or more
6 natural persons or one or more proxies, powers of attorney,
7 nominees, corporations, associations, partnerships, trusts,
8 joint stock companies, or other entities or devices, or any
9 combination thereof.
10 Section 3. License required; license fees.--
11 (1) A person may not engage in business as a title
12 loan lender unless the person has a valid license issued by
13 the department authorizing engagement in the business. A
14 separate license is required for each physical location of a
15 title loan office. The department shall issue more than one
16 license to a person if that person complies with the
17 requirements of this act for each license.
18 (2) An application for a license pursuant to this act
19 must be submitted to the department on such form as the
20 department may prescribe by rule. If the department determines
21 that an application should be granted, it shall issue the
22 license for a period not to exceed 1 year. A nonrefundable
23 license fee of $1,500 and a nonrefundable investigation fee of
24 $250 shall accompany an initial application for each title
25 loan location. The revenue from these fees is intended to
26 reasonably reflect the actual cost of regulation.
27 (3) A license shall be renewed annually and shall be
28 accompanied by a nonrefundable fee of $1,500. A license that
29 is not renewed by the expiration date shall automatically
30 expire and revert to inactive status. Such inactive license
31 may be reactivated within 3 months after the expiration date
3
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HOUSE AMENDMENT
Bill No. HB 795
Amendment No. 1 (for drafter's use only)
1 upon submission of a completed reactivation form and payment
2 of a reactivation fee. A license that is not reactivated
3 within 3 months after becoming inactive may not be
4 reactivated.
5 (4) Each license must specify the location for which
6 it is issued and must be conspicuously displayed at that
7 location. When a licensee wishes to move a title loan office
8 to another location, the licensee shall give 30 days prior
9 written notice to the department by certified or registered
10 mail, return receipt requested, and the department shall then
11 amend the license accordingly. A license issued pursuant to
12 this act is not transferable or assignable.
13 (5) The department may deny an initial application for
14 a license if the applicant or any person with power to direct
15 the management or policies of the applicant is the subject of
16 a pending criminal prosecution or governmental civil
17 enforcement action, in any jurisdiction, until conclusion of
18 such criminal prosecution or enforcement action.
19 (6) Each licensee shall designate and maintain an
20 agent in this state for service of process.
21 (7) A person must apply to the department for a new
22 license upon the change of any person owning 25 percent or
23 greater interest in any title loan office and pay the
24 nonrefundable license and investigation fees.
25 (8) All monies collected by the department under this
26 chapter shall be deposited into the State Treasury to be
27 placed in the General Inspection Trust Fund for the sole
28 purpose of implementing this chapter.
29 Section 4. Eligibility for license.--
30 (1) To be eligible for a title loan lending license,
31 an applicant shall:
4
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HOUSE AMENDMENT
Bill No. HB 795
Amendment No. 1 (for drafter's use only)
1 (a) Be of good moral character.
2 (b) File with the department a bond in the amount of
3 $100,000 for each license with a surety company qualified to
4 do business in this state. In lieu of the bond, the applicant
5 may establish a certificate of deposit or an irrevocable
6 letter of credit in a Florida financial institution in the
7 amount of the bond. The original bond, certificate of deposit,
8 or letter of credit shall be filed with the department, and
9 the department shall be the beneficiary to said document. The
10 bond, certificate of deposit, or letter of credit shall be in
11 favor of the department for the use and benefit of any
12 consumer who is injured pursuant to a title loan transaction
13 by the fraud, misrepresentation, breach of contract, financial
14 failure, or violation of any provision of this act by the
15 title loan lender. Such liability may be enforced either by
16 proceeding in an administrative action or by filing a judicial
17 suit at law in a court of competent jurisdiction. However, in
18 such court suit, the bond, certificate of deposit, or letter
19 of credit posted with the department shall not be amenable or
20 subject to any judgment or other legal process issuing out of
21 or from such court in connection with such lawsuit; but such
22 bond, certificate of deposit, or letter of credit shall be
23 amenable to and enforceable only by and through administrative
24 proceedings before the department. It is the intent of the
25 Legislature that such bond, certificate of deposit, or letter
26 of credit shall be applicable and liable only for the payment
27 of claims duly adjudicated by order of the department. The
28 bond, certificate of deposit, or letter of credit shall be
29 payable on a pro rata basis as determined by the department,
30 but the aggregate amount may not exceed the amount of the
31 bond, certificate of deposit, or letter of credit.
5
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HOUSE AMENDMENT
Bill No. HB 795
Amendment No. 1 (for drafter's use only)
1 (c) Not have been convicted of a felony within the
2 last 10 years or be acting as an ultimate equitable owner for
3 someone who has been convicted of a felony within the last 10
4 years.
5 (d) Not have been convicted, and not be acting as an
6 ultimate equitable owner for someone who has been convicted,
7 of a crime that the department finds directly relates to the
8 duties and responsibilities of a title loan lender within the
9 last 10 years.
10 (2) If an applicant for a title loan lending license
11 is other than a corporation, the eligibility requirements of
12 this section apply to each direct or ultimate equitable owner.
13 (3) If an applicant for a title loan lending license
14 is a corporation, the eligibility requirements of this section
15 apply to each direct or ultimate equitable owner of a least 25
16 percent of the outstanding equity interest of such corporation
17 and to each director and executive officer.
18 Section 5. Application for license.--
19 (1) Application for a license to make title loans
20 under this act shall be in writing, under oath, and in the
21 form prescribed by department rule, and shall contain the
22 name, residence and business addresses of the applicant and,
23 if the applicant is a partnership or association, of every
24 member thereof and, if a corporation, of each officer and
25 director and ultimate equitable owner of at least 25 percent
26 thereof; whether any of the above has been arrested within the
27 last 10 years for, convicted of, or is under indictment or
28 information for, a felony or crime that directly relates to
29 the duties and responsibilities of a title loan lender and, if
30 so, the nature thereof; the county and municipality with the
31 street and number or location where the business is to be
6
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HOUSE AMENDMENT
Bill No. HB 795
Amendment No. 1 (for drafter's use only)
1 conducted; and such further relevant information as the
2 department may require pursuant to department rule. At the
3 time of making such application the applicant shall pay to the
4 department a nonrefundable license fee of $1,500.
5 Applications, except for applications to renew or reactivate a
6 license, must be accompanied by a nonrefundable investigation
7 fee of $250.
8 (2) Notwithstanding the foregoing, the application
9 need not state the full name and address of each officer,
10 director, and shareholder if the applicant is owned directly
11 or beneficially by a person who as an issuer has a class of
12 securities registered pursuant to Section 12 of the Securities
13 Exchange Act of 1934, or pursuant to Section 15 (d) thereof is
14 an issuer of securities which is required to file reports with
15 the Securities and Exchange Commission, if the person files
16 with the department any information, documents, and reports
17 required by that act to be filed with the Securities and
18 Exchange Commission.
19 (3) Upon the filing of an application for a license
20 and payment of all applicable fees, the department shall,
21 unless the application is to renew or reactivate an existing
22 license, make an investigation of the facts concerning the
23 applicant's proposed activities. The department shall
24 investigate the facts and shall approve an application and
25 issue to the applicant a license that will evidence the
26 authority to do business under the provisions of this act if
27 the department finds that the eligibility requirements for the
28 license are satisfied. The license must be prominently
29 displayed at the front desk or counter at the title loan
30 office.
31 (4) A license that is not renewed by the expiration
7
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HOUSE AMENDMENT
Bill No. HB 795
Amendment No. 1 (for drafter's use only)
1 date shall automatically revert to inactive status. An
2 inactive license may be reactivated upon submission of a
3 completed reactivation application, payment of the annual
4 license fee, and payment of a reactivation fee of $250. A
5 license expires on the date at which it has been inactive for
6 3 months.
7 (5) A licensee may not change the place of business
8 maintained under a license without prior notice to the
9 department. When a licensee wishes to change a place of
10 business, the licensee shall give written notice thereof to
11 the department.
12 (6) A licensee may conduct the business of making
13 loans under this act within a place of business in which other
14 business is solicited or engaged in, unless the department
15 finds that the conduct of such other business by the licensee
16 results in either the evasion of this act or combining such
17 other business activities results in practices which are
18 detrimental, misleading, or unfair to consumers. Upon such a
19 finding, the department shall order the licensee to desist
20 from such evasion or other business activities. However, no
21 license shall be granted to or renewed for any person or
22 organization engaged in the pawnbroking business.
23 (7) Licenses are not transferable or assignable. A
24 licensee may invalidate any license by delivering it to the
25 department with written notice of its surrender by certified
26 or registered mail, return receipt requested, but such
27 delivery does not affect any civil or criminal liability or
28 the authority to enforce this act for acts committed in
29 violation thereof.
30 Section 6. Suspension, revocation of license.--
31 (1) The following acts are violations of this act and
8
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HOUSE AMENDMENT
Bill No. HB 795
Amendment No. 1 (for drafter's use only)
1 constitute grounds for the disciplinary actions specified in
2 subsection (2):
3 (a) Failure to comply with any provision of this act,
4 any rule or order adopted pursuant to this act, or any written
5 agreement entered into with the department;
6 (b) Fraud, misrepresentation, deceit, or gross
7 negligence in any title loan transaction, regardless of
8 reliance by or damage to the pledgor;
9 (c) Fraudulent misrepresentation, circumvention, or
10 concealment of any matter required to be stated or furnished
11 to a pledgor pursuant to this act, regardless of reliance by
12 or damage to the pledgor;
13 (d) Willful imposition of illegal or excessive charges
14 in any title loan transaction;
15 (e) False, deceptive, or misleading advertising by a
16 title loan lender;
17 (f) Failure to maintain, preserve, and keep available
18 for examination, all books, accounts, or other documents
19 required by this act, by any rule or order adopted pursuant to
20 this act, or by any agreement entered into with the
21 department;
22 (g) The title loan lender has aided, abetted, or
23 conspired with an individual or person to circumvent or
24 violate any of the requirements of this act;
25 (h) Refusal to permit inspection of books and records
26 in an investigation or examination by the department or
27 refusal to comply with a subpoena issued by the department; or
28 (i) Criminal conduct in the course of a person's
29 business as a title loan lender.
30 (2) Upon a finding by the department that any person
31 has committed any of the acts set forth in subsection (1), the
9
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HOUSE AMENDMENT
Bill No. HB 795
Amendment No. 1 (for drafter's use only)
1 department may enter an order taking one or more of the
2 following actions:
3 (a) Issuing a notice of noncompliance pursuant to s.
4 120.695;
5 (b) Denying an application for a license pursuant to
6 this act;
7 (c) Revoking or suspending a license previously
8 granted pursuant to this act;
9 (d) Placing a licensee or an applicant for a license
10 on probation for a period of time and subject to such
11 conditions as the department may specify;
12 (e) Placing permanent restrictions or conditions upon
13 issuance or maintenance of a license pursuant to this act;
14 (f) Issuing a reprimand; or
15 (g) Imposing an administrative fine not to exceed
16 $5,000 for each such act or violation.
17 (3) In addition to the acts specified in subsection
18 (1), the following shall be grounds for denial of a license
19 pursuant to this act, or for revocation, suspension, or
20 restriction of a license previously granted:
21 (a) A material misstatement of fact in an initial or
22 renewal application for a license;
23 (b) Having a license, registration, or the equivalent,
24 to practice any profession or occupation denied, suspended,
25 revoked, or otherwise acted against by a licensing authority
26 in any jurisdiction for fraud, dishonest dealing, or any act
27 of moral turpitude;
28 (c) Having been convicted or found guilty of a crime
29 involving fraud, dishonest dealing, or any act of moral
30 turpitude;
31 (d) Being insolvent or having demonstrated a lack of
10
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HOUSE AMENDMENT
Bill No. HB 795
Amendment No. 1 (for drafter's use only)
1 honesty or financial responsibility; or
2 (e) A fact or condition exists which, if it had
3 existed or had been known to exist at the time of the original
4 issuance of the license, would have justified the department
5 in refusing a license.
6 (4) It is sufficient cause for the department to take
7 any of the actions specified in subsection (2) as to any
8 partnership, corporation, or association, if the department
9 finds grounds for such action as to any member of the
10 partnership, as to any executive officer or director of the
11 corporation or association, or as to any person with power to
12 direct the management or policies of the partnership,
13 corporation, or association.
14 (5) Each licensee licensed pursuant to this act is
15 responsible for the acts of its employees and agents, if, with
16 actual knowledge of such acts, it retained profits, benefits,
17 or advantages accruing from such acts or ratified the conduct
18 of the employee or agent as a matter of law or fact.
19 (6) The manner of giving notice and conducting a
20 hearing shall be as is required by chapter 120.
21 (7) Any title loan agreement made without benefit of a
22 license is voidable, in which case the person forfeits the
23 right to collect any moneys, including principal and finance
24 charges, from the pledgor in connection with such agreement
25 and shall return to the pledgor the loan property in
26 connection with such agreement or the fair market value of
27 such property thereof.
28 Section 7. Title loan transaction form.--
29 (1) At the time the title loan lender enters into each
30 title loan agreement, the title loan lender shall complete a
31 title loan transaction form for such transaction, and the
11
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HOUSE AMENDMENT
Bill No. HB 795
Amendment No. 1 (for drafter's use only)
1 pledgor shall sign such completed form. The department shall
2 approve the design and format of the title loan transaction
3 form, which shall elicit the information required under this
4 section. In completing the title loan transaction form, the
5 title loan lender shall record the following information,
6 which shall be typed or written indelibly and legibly in
7 English.
8 (a) The make, model, and year of the titled personal
9 property to which the loan property relates.
10 (b) The vehicle identification number, or other
11 comparable identification number, along with the license plate
12 number, if applicable, of the titled personal property to
13 which the loan property relates.
14 (c) The name, address, date of birth, physical
15 description, and social security number of the pledgor.
16 (d) The date of the transaction.
17 (e) The identification number and the type of
18 identification, including the issuing agency, accepted from
19 the pledgor.
20 (f) The amount of money advanced, which shall be
21 designated as the "amount financed."
22 (g) The maturity date of the title loan agreement,
23 which shall be 30 days after the date of the transaction.
24 (h) The total title loan charge payable on the
25 maturity date, designated as the "finance charge."
26 (i) The total amount, amount financed plus finance
27 charge, which must be paid to redeem the loan property on the
28 maturity date, designated as the "total amount of all
29 payments."
30 (j) The annual percentage rate, computed in accordance
31 with the regulations adopted by the Federal Reserve Board
12
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HOUSE AMENDMENT
Bill No. HB 795
Amendment No. 1 (for drafter's use only)
1 pursuant to the Federal Truth-in-Lending Act.
2 (2) The following information shall also be printed on
3 all title loan transaction forms:
4 (a) The name and address of the title loan office.
5 (b) The name and address of the department as well as
6 a telephone number upon which consumers may address
7 complaints.
8 (c) The following statement in not less than 12 point
9 type that:
10 1. The pledgor is not obligated to redeem the subject
11 certificate of title.
12 2. If the pledgor does not redeem the certificate of
13 title before the maturity date of the title loan agreement,
14 the title loan lender may repossess the titled personal
15 property to which the certificate of title relates.
16 3. If this title loan transaction form is lost,
17 destroyed, or stolen, the pledgor should immediately so advise
18 the issuing title loan lender in writing.
19 (d) The statement that "The pledgor represents and
20 warrants that the titled personal property to which the loan
21 property relates is not stolen, it has no liens or
22 encumbrances against it, the pledgor has the right to enter
23 into this transaction, and the pledgor will not apply for a
24 duplicate certificate of title while the title loan agreement
25 is in effect."
26 (e) Immediately above the signature of the pledgor,
27 the statement that "I, the pledgor declare under penalty of
28 perjury that I have read the foregoing document and that, to
29 the best of my knowledge and belief, the facts contained in it
30 are true and correct."
31 (f) A blank line for the signature of the pledgor.
13
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HOUSE AMENDMENT
Bill No. HB 795
Amendment No. 1 (for drafter's use only)
1 (3) At the time of the transaction, the title loan
2 lender shall deliver to the pledgor an exact copy of the
3 completed title loan transaction form.
4 (4) The pledgor shall agree for the title loan lender
5 to keep possession of the certificate of title. The pledgor
6 shall have the exclusive right to redeem the certificate of
7 title by repaying the loan of money in full and by complying
8 with the title loan agreement. When the certificate of title
9 is redeemed, the title loan lender shall release the security
10 interest in the titled personal property and return the
11 personal property certificate of title to the pledgor. The
12 title loan agreement shall provide that upon failure by the
13 pledgor to redeem the certificate of title at the end of the
14 original 30-day-agreement period, or at the end of any 30-day
15 extension thereof, the title loan lender shall be allowed to
16 take possession of the titled personal property. The title
17 loan lender shall retain physical possession of the
18 certificate of title for the entire length of the title loan
19 agreement, but shall not be required to retain physical
20 possession of the titled personal property at any time. A
21 title loan lender may only hold unencumbered certificates of
22 title for loan.
23 Section 8. Recordkeeping; reporting; safekeeping of
24 property.--
25 (1) Every title loan lender shall maintain, at the
26 principal place of business, such books, accounts, and records
27 of the business conducted under the license issued for such
28 place of business as will enable the department to determine
29 the licensee's compliance with this act. The licensee shall
30 make all such books, accounts, and records of business
31 conducted under the license available at a convenient location
14
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HOUSE AMENDMENT
Bill No. HB 795
Amendment No. 1 (for drafter's use only)
1 in this state upon request of the department.
2 (2) The department may authorize maintenance of books,
3 accounts, and records at a location other than a principal
4 place of business. The department may require books, accounts,
5 and records to be produced and available at a reasonable and
6 convenient location in this state within a reasonable period
7 of time after such a request.
8 (3) The title loan lender shall maintain the original
9 copy of each completed title loan transaction form on the
10 title loan office premises, and shall not obliterate, discard,
11 or destroy any such original copy, for a period of at least 2
12 years after making the final entry on any loan recorded
13 therein.
14 (4) All loan property, or property related to the
15 title loan transaction, which is delivered to a title loan
16 lender shall be securely stored and maintained at the title
17 loan office unless the title document has been forwarded to
18 the appropriate state agency for the purpose of having a lien
19 recorded or deleted.
20 (5) The department is hereby authorized and empowered
21 to prescribe the minimum information to be shown in the books,
22 accounts, and records of licensees so that such records will
23 enable the department to determine compliance with the
24 provisions of this act.
25 Section 9. Title loan charges.--
26 (1) In a title loan agreement, a title lender may
27 contract for and receive only a finance charge. The finance
28 charge may not exceed 22 percent simple interest per 30-day
29 period.
30 (2) Any extension must be done in writing, clearly
31 specify the new maturity date, the title loan finance charges
15
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HOUSE AMENDMENT
Bill No. HB 795
Amendment No. 1 (for drafter's use only)
1 paid for the extension, and title loan finance charges owed on
2 the new maturity date, and a copy must be supplied to the
3 pledgor. In this event, the daily title loan finance charge
4 for the extension shall be equal to the title loan finance
5 charge for the original 30-day period divided by 30 days,
6 one-thirtieth of the original total title loan finance charge.
7 A title loan lender is not permitted to capitalize any unpaid
8 finance charge as part of the amount financed in a subsequent
9 title loan transaction.
10 (3) When a title loan agreement has not been satisfied
11 within 90 days of its inception the title loan lender shall be
12 entitled to receive a finance charge on the outstanding
13 principal balance at a rate not to exceed 18 percent per annum
14 for that period of time the loan remains outstanding beyond 90
15 days. However, the title loan lender may collect a finance
16 charge as set forth in subsection (1) for the first 90 days
17 the title loan agreement is in effect.
18 (4) Any finance charge contracted for or received,
19 directly or indirectly, in excess of the amounts authorized
20 under this section are prohibited, may not be collected, and
21 render the title loan agreement voidable, in which case the
22 title loan lender shall forfeit the right to collect any
23 interest or finance charges. Upon the pledgor's written
24 request delivered to the title loan lender by certified mail
25 return receipt requested within 30 days after the maturity
26 date, the title loan lender shall be obligated to return to
27 the pledgor the loan property delivered to the title loan
28 lender in connection with the title loan agreement upon
29 payment of the balance of the principal remaining due,
30 provided that there shall be no penalty for a violation
31 resulting from an accidental and bona fide error that is
16
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HOUSE AMENDMENT
Bill No. HB 795
Amendment No. 1 (for drafter's use only)
1 corrected upon discovery. Any action to circumvent the
2 limitation on title loan interest or any other amounts
3 collectible under this act is voidable. Any transaction
4 involving a person's delivery of a personal property
5 certificate of title in exchange for the advancement of funds
6 on the condition that the person shall or may redeem or
7 repurchase the certificate of title upon the payment of a sum
8 of money, whether the transaction be characterized as a
9 "buy-sell agreement," "sale-leaseback agreement," or
10 otherwise, shall be deemed a violation of this act if such sum
11 exceeds the amount that a title loan lender may collect in a
12 title loan agreement under this act or if the terms of the
13 transaction otherwise conflict with the permitted terms and
14 conditions of a title loan agreement under this act.
15 (5) Any fees or taxes paid to a governmental agency
16 and directly related to a particular title loan transaction
17 may be collected from the pledgor and shall be in addition to
18 the permitted finance charge.
19 Section 10. Ten-day holding period; failure to redeem;
20 attempts at collection.--
21 (1) Upon the pledgor's failure to redeem the pledged
22 property on or before the maturity date of the title loan
23 agreement, the title loan lender has the right to take
24 possession of the titled personal property. Any repossession
25 of a motor vehicle must be through an agent who is licensed by
26 the state to repossess motor vehicles. After taking possession
27 of the titled personal property, the title loan lender shall
28 retain possession of the titled personal property and the
29 certificate of title for a minimum 10-day holding period
30 commencing on the date of repossession.
31 (2) If, during the 10-day holding period, the pledgor
17
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HOUSE AMENDMENT
Bill No. HB 795
Amendment No. 1 (for drafter's use only)
1 redeems the titled personal property and certificate of title
2 by paying all outstanding principal and finance charges, the
3 pledgor shall be given possession of the titled personal
4 property and the certificate of title without further charge.
5 (3) If the pledgor fails to redeem the titled personal
6 property and certificate of title during the 10-day holding
7 period, then the pledgor shall thereby forfeit all right,
8 title, and interest in and to the titled personal property and
9 certificate of title, to the title loan lender, who shall
10 thereby acquire an absolute right of title and ownership to
11 the titled personal property. The title loan lender shall then
12 have the sole right and authority to sell or dispose of the
13 unredeemed titled personal property.
14 (4) If the title loan lender, in attempting to collect
15 moneys owed pursuant to a valid title pledge agreement,
16 communicates with the pledgor no more than one time per day
17 such communication shall not be considered harassment or abuse
18 of the pledgor for purposes of s. 559.72.
19 Section 11. Disposal of pledged property; excess
20 proceeds.--
21 (1) The title loan lender shall dispose of the pledged
22 personal property within a reasonable length of time after the
23 expiration of the 10-day holding period in a commercially
24 reasonable fashion so as to produce the highest proceeds from
25 such disposal. After the pledged personal property has been
26 disposed of, the title loan lender shall deduct from said
27 proceeds the outstanding principal balance and finance charges
28 that have accrued up until the expiration of the 10-day
29 holding period and the incurred repossession or storage
30 charges which are actual and reasonable. Title loan lenders
31 may only assess and collect, as reimbursement, a repossession
18
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HOUSE AMENDMENT
Bill No. HB 795
Amendment No. 1 (for drafter's use only)
1 or storage charge which does not exceed the actual amount
2 charged by an independent and unaffiliated third-party company
3 or contractor which was hired to repossess or store the titled
4 personal property to which the loan property relates. The
5 total amount of reimbursement that the title loan lender may
6 receive as reimbursement, for any outstanding charges except
7 the principal and finance charges, may not exceed $350 for a
8 motor vehicle repossessed within this state or $500 for a
9 motor vehicle repossessed outside this state.
10 (2) After such deductions, any remaining balances or
11 surpluses, if any, shall be given to the pledgor within 10
12 days after such disposal. Under no circumstances, including
13 the case where the sale or disposal proceeds fail to cover the
14 loan amount, shall any deficiency be allowed to be attributed
15 to any pledgor or borrower.
16 Section 12. Prohibited acts.--A title loan lender, or
17 any agent or employee of such title loan lender, shall not:
18 (1) Falsify or fail to make an entry of any material
19 matter in a title loan lender transaction form.
20 (2) Refuse to allow the department to inspect
21 completed title loan transaction forms or loan property during
22 the ordinary hours of the title loan lender's business or
23 other times acceptable to both parties.
24 (3) Enter into a title loan agreement with a person
25 under the age of 18 years.
26 (4) Make any agreement requiring or allowing for the
27 personal liability of a pledgor or the waiver of any of the
28 provisions of this act.
29 (5) Knowingly enter into a title loan agreement with
30 any person who is under the influence of drugs or alcohol when
31 such condition is visible or apparent, or with any person
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HOUSE AMENDMENT
Bill No. HB 795
Amendment No. 1 (for drafter's use only)
1 using a name other than his own name or the registered name of
2 his business.
3 (6) Fail to exercise reasonable care in the
4 safekeeping of loan property or of titled personal property
5 repossessed pursuant to this act.
6 (7) Fail to return loan property or repossessed titled
7 personal property to a pledgor, with any and all of the title
8 loan lender's liens on the property properly released, upon
9 payment of the full amount due the title loan lender, unless
10 the property has been seized or impounded by an authorized law
11 enforcement agency, taken into custody by a court, or
12 otherwise disposed of by court order.
13 (8) Sell or otherwise charge for insurance in
14 connection with a title loan agreement.
15 (9) Charge or receive any finance charge, interest, or
16 fees which are not authorized pursuant to this act.
17 (10) Engage in business as a title loan lender without
18 first securing the license.
19 (11) Refuse to accept a partial repayment of the
20 amount financed provided all accrued finance charges have been
21 paid.
22 (12) Charge a prepayment penalty.
23 (13) Title loan companies may not advertise using the
24 words "intrest free loans" or "no finance charges."
25 Section 13. Right to redeem; lost title loan
26 transaction form.--
27 (1) Any person presenting identification of himself,
28 or herself, as the pledgor and presenting the pledgor's copy
29 of the title loan transaction form to the title loan lender is
30 presumed to be entitled to redeem the loan property described
31 in the title loan lender transaction form. However, if the
20
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HOUSE AMENDMENT
Bill No. HB 795
Amendment No. 1 (for drafter's use only)
1 title loan lender determines that the person is not the
2 pledgor, the title loan lender is not required to allow the
3 redemption of the loan property by such person. The person
4 redeeming the loan property must sign the pledgor's copy of
5 the title loan transaction form, which the title loan lender
6 may retain to evidence such person's receipt of the loan
7 property. If the person redeeming the loan property is not the
8 pledgor, that person must show identification to the title
9 loan lender together with written authorization from the
10 pledgor, and the title loan lender shall record the person's
11 name and address on the title loan transaction form retained
12 by the title loan lender. In any such case, the person
13 redeeming the pledgor's copy of the title loan transaction
14 form shall be provided a copy of such signed form as evidence
15 of the concerned transaction.
16 (2) If the pledgor's copy of the title loan
17 transaction form is lost, destroyed, or stolen, the pledgor
18 must notify the title loan lender in writing by certified or
19 registered mail, return receipt requested, or in person
20 evidenced by a signed receipt, and receipt of this notice
21 shall invalidate such title loan transaction form if the loan
22 property has not previously been redeemed. Before delivering
23 the loan property or issuing a new title loan transaction
24 form, the title loan lender shall require the pledgor to make
25 a written statement of the loss, destruction, or theft of the
26 pledgor's copy of the title loan transaction form. The title
27 loan lender shall record on the written statement the type of
28 identification and the identification number accepted from the
29 pledgor, the date the statement is given, and the number or
30 date of the title loan transaction form lost, destroyed, or
31 stolen. The statement shall be signed by the title loan lender
21
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HOUSE AMENDMENT
Bill No. HB 795
Amendment No. 1 (for drafter's use only)
1 or the title loan office employee who accepts the statement
2 from the pledgor.
3 Section 14. Title loan lender's lien.--
4 (1) The title loan lender may record its security
5 interest in the titled personal property to which the loan
6 property relates by noting the lien on the certificate of
7 title.
8 (2) The title loan lender is, upon entering into a
9 title loan agreement, considered a bona fide lienholder whose
10 interest has been perfected.
11 Section 15. Criminal penalties.--
12 (1) Any person who engages in business as a title loan
13 lender without first securing the license prescribed by this
14 act commits a felony of the third degree, punishable as
15 provided in s. 775.082, s. 775.083, or s. 775.084.
16 (2) In addition to any other penalty which may be
17 applicable, any person who willfully violates this act or who
18 willfully makes a false entry in any record specifically
19 required by this act commits a misdemeanor of the first degree
20 punishable as provided in s. 775.082 or s. 775.083.
21 Section 16. Records from the Department of Law
22 Enforcement.--The Department of Law Enforcement, on request,
23 shall supply to the department any arrest and conviction
24 records in its possession of an individual applying for or
25 holding a license under this act.
26 Section 17. Subpoenas; enforcement actions; rules.--
27 (1) The department may issue and serve subpoenas to
28 compel the attendance of witnesses and the production of
29 documents, papers, books, records, and other evidence before
30 it in any matter pertaining to this act. The department may
31 administer oaths and affirmations to any person whose
22
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HOUSE AMENDMENT
Bill No. HB 795
Amendment No. 1 (for drafter's use only)
1 testimony is required. If any person refuses to testify,
2 produce books, records, and documents, or otherwise refuses to
3 obey a subpoena issued under this section, the department may
4 enforce the subpoena in the same manner as subpoenas issued
5 under the Administrative Procedure Act are enforced. Witnesses
6 are entitled to the same fees and mileage as they are entitled
7 to by law for attending as witnesses in the circuit court,
8 unless such examination or investigation is held at the place
9 of business or residence of the witness.
10 (2) In addition to any other powers conferred upon it
11 to enforce or administer this act, the department may:
12 (a) Bring an action in any court of competent
13 jurisdiction to enforce or administer this act, any rule or
14 order adopted under this act, or any written agreement entered
15 into with the department. In such action, the department may
16 seek any relief at law or equity including a temporary or
17 permanent injunction, appointment of a receiver or
18 administrator, or an order of restitution.
19 (b) Issue and serve upon a person an order requiring
20 such person to cease and desist and take corrective action
21 whenever the department finds that such person is violating,
22 has violated, or is about to violate any provision of this
23 act, any rule or order adopted under this act, or any written
24 agreement entered into with the department.
25 (c) Whenever the department finds that conduct
26 described in paragraph (b) presents an immediate danger to the
27 public health, safety, or welfare requiring an immediate final
28 order, issue an emergency cease and desist order reciting with
29 particularity the facts underlying such findings. The
30 emergency cease and desist order is effective immediately upon
31 service of a copy of the order on the respondent named therein
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HOUSE AMENDMENT
Bill No. HB 795
Amendment No. 1 (for drafter's use only)
1 and remains effective for 90 days. If the department begins
2 nonemergency proceedings under paragraph (b), the emergency
3 cease and desist order remains effective until the conclusion
4 of the proceedings under ss. 120.569 and 120.57.
5 (d) Impose and collect an administrative fine against
6 any person found to have violated any provision of this act,
7 any rule or order adopted under this act, or any written
8 agreement entered into with the department, in an amount not
9 to exceed $5,000 for each violation.
10 (3) The department has the authority to adopt rules
11 pursuant to the Administrative Procedure Act.
12 Section 18. Investigations and complaints.--
13 (1) The department may, at intermittent periods, make
14 such investigations and examinations of any licensee or other
15 person as it deems necessary to determine compliance with this
16 act. For such purposes, it may examine the books, accounts,
17 records, and other documents or matters of any licensee or
18 other person. It shall have the power to compel the production
19 of all relevant books, records, and other documents and
20 materials relative to an examination or investigation. Such
21 investigations and examinations shall not be made more often
22 than once during any 12-month period unless the department has
23 good cause to believe the licensee is not complying with the
24 provisions of this act.
25 (2) Any person having reason to believe that the
26 provisions of this act have been violated may file with the
27 department a written complaint setting forth the details of
28 such alleged violations and the department upon receipt of
29 such complaint, may inspect the pertinent books, records,
30 letters, and contracts of the licensee and of the seller
31 involved, relating to such specific written complaint.
24
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HOUSE AMENDMENT
Bill No. HB 795
Amendment No. 1 (for drafter's use only)
1 Section 19. There is hereby appropriated for the
2 1997-1998 fiscal year $700,000 and eight positions from the
3 General Inspection Trust Fund to the Department of Agriculture
4 and Consumer Services to administer this act.
5 Section 20. Legislative intent.--It is the intent of
6 the Legislature that title loans shall be regulated by the
7 provisions of this chapter. The provisions of this chapter
8 shall supersede any provisions of law affecting title loans to
9 the extent of any conflict.
10 Section 21. Chapter 95-287, Laws of Florida, is
11 repealed.
12 Section 22. This act shall take effect October 1,
13 1997, except that section 19 shall take effect July 1, 1997.
14
15
16 ================ T I T L E A M E N D M E N T ===============
17 And the title is amended as follows:
18 On page 1........., line(s) 1.........,
19 remove from the title of the bill: all of said lines
20
21 and insert in lieu thereof:
22 An act relating to title loan transactions;
23 creating the "Florida Title Loan Act";
24 providing definitions; requiring licensure by
25 the Department of Agriculture and Consumer
26 Services to be in the business as a title loan
27 lender; providing for eligibility for
28 licensure; providing for application; providing
29 for suspension or revocation of license;
30 providing for a title loan transaction form;
31 providing for recordkeeping and reporting and
25
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HOUSE AMENDMENT
Bill No. HB 795
Amendment No. 1 (for drafter's use only)
1 safekeeping of property; providing for title
2 loan charges; providing a holding period when
3 there is a failure to redeem; providing for
4 attempts at collection; providing for the
5 disposal of pledged property; providing for
6 disposition of excess proceeds; prohibiting
7 certain acts; providing for the right to
8 redeem; providing for lost title loan
9 transaction forms; providing for a title loan
10 lenders lien; providing for criminal penalties;
11 providing for certain records from the
12 Department of Law Enforcement; providing for
13 subpoenas, enforcement of actions, and rules;
14 providing a fine; providing for investigations
15 and complaints; providing an appropriation;
16 providing legislative intent; repealing ch.
17 95-287, Laws of Florida; providing an effective
18 date.
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