Senate Bill 1242c2

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    Florida Senate - 1999                    CS for CS for SB 1242

    By the Committees on Judiciary; Banking and Insurance; and
    Senator Geller




    308-2160-99

  1                      A bill to be entitled

  2         An act relating to the regulation of insurance

  3         and investments in insurance products industry;

  4         amending s. 626.9911, F.S.; defining viatical

  5         settlement purchaser, viatical settlement

  6         purchase agreement, and viatical settlement

  7         sales agent; redefining the terms "viatical

  8         settlement broker," "viatical settlement

  9         contract," "viatical settlement provider," and

10         "viator"; creating s. 626.99181, F.S.; adding

11         viatical settlement broker fees; amending s.

12         626.9919, F.S.; requiring viatical settlement

13         sales agents to give notice of change of

14         address; amending s. 626.992, F.S.; requiring

15         viatical settlement sales agents to be

16         licensed; amending s. 626.9922, F.S.; revising

17         requirements for examination; amending s.

18         626.99235, F.S.; revising disclosure

19         requirements for viatical settlement purchasers

20         and creating additional disclosure

21         requirements; amending s. 626.9924, F.S.;

22         requiring notice to be given to insurers of

23         viaticated policies; amending s. 626.9925;

24         providing for rulemaking; amending s. 626.9926,

25         F.S.; providing that viatical settlement

26         purchase agreement rates are not regulated;

27         amending s. 626.9927, F.S.; including viatical

28         settlement purchase agreements; creating s.

29         626.99272, F.S.; providing for cease-and-desist

30         orders; creating s. 626.99275, F.S.;

31         prohibiting certain practices; creating s.

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  1         626.99277, F.S.; prohibiting false

  2         representations; amending s. 626.9929, F.S.;

  3         establishing a grace period for viatical

  4         settlement sales agents transacting business in

  5         this state; creating part XII, ch. 626, F.S.;

  6         establishing regulation of persons issuing and

  7         brokering life settlement contracts; creating

  8         s. 626.994, F.S.; providing a short title;

  9         creating s. 626.9941, F.S.; providing for

10         definitions; creating s. 626.9942, F.S.;

11         providing for licensure of life settlement

12         providers; creating s. 626.99421, F.S.;

13         providing for annual reports, fees, and

14         conditions of continued licensure; creating s.

15         626.99422, F.S.; providing grounds for

16         nonrenewal, suspension, revocation, and fines

17         for life settlement providers; creating s.

18         626.99423, F.S.; providing the term of a

19         suspension of the license and provisions for

20         reinstatement; creating s. 626.9943, F.S.;

21         providing for licensure of life settlement

22         brokers; creating s. 626.99431, F.S.; providing

23         grounds for denial, suspension, revocation,

24         nonrenewal, or administrative fines for life

25         settlement brokers; creating s. 626.99432,

26         F.S.; providing for effect of a suspension or

27         revocation and procedures for reinstatement;

28         creating s. 626.9944, F.S.; requiring life

29         settlement sales agents to be licensed as life

30         insurance agents; creating s. 626.9945, F.S.;

31         requiring notice of change of address and other

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  1         information; creating s. 626.9946, F.S.;

  2         requiring use of licensed persons for life

  3         settlement transactions; creating s. 626.9947,

  4         F.S.; providing for approval of contract forms

  5         and related forms; creating s. 626.9948, F.S.;

  6         requiring procedures for examination of

  7         licensees; creating s. 626.9949, F.S.;

  8         providing for required disclosures to owners;

  9         creating s. 626.99495, F.S.; providing required

10         disclosures to life settlement purchasers;

11         creating s. 626.995, F.S.; requiring certain

12         provisions to be in a life settlement contract

13         and a right to rescission; creating s.

14         626.9952, F.S.; authorizing the adoption of

15         rules to implement provisions of this act;

16         creating s. 626.9954, F.S.; providing that rate

17         regulation is not authorized; creating s.

18         626.996, F.S.; prohibiting unfair trade

19         practices and providing a civil remedy and

20         authorizing injunctions and cease-and-desist

21         orders; creating s. 626.9965, F.S.; prohibiting

22         life settlement contracts during contestable

23         period or on policies obtained through false,

24         deceptive, or misleading applications; creating

25         s. 626.997, F.S.; prohibiting false

26         representations and deceptive words; creating

27         s. 626.9975, F.S.; adding life settlement

28         broker fees; creating s. 626.998, F.S.;

29         providing for a grace period for compliance;

30         providing an effective date.

31

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  1  Be It Enacted by the Legislature of the State of Florida:

  2

  3         Section 1.  Section 626.9911, Florida Statutes, 1998

  4  Supplement, is amended to read:

  5         626.9911  Definitions.--As used in this act, the term:

  6         (1)  "Department" means the Department of Insurance.

  7         (2)  "Independent third-party trustee or escrow agent"

  8  means an attorney, certified public accountant, financial

  9  institution, or other person providing escrow services under

10  the authority of a regulatory body. The term does not include

11  any person associated, affiliated, or under common control

12  with a viatical settlement provider or viatical settlement

13  broker.

14         (3)  "Person" has the meaning specified in s. 1.01.

15         (4)  "Viatical settlement broker" means a person who,

16  on behalf of a viator and for a fee, commission, or other

17  valuable consideration, offers or attempts to negotiate

18  viatical settlement contracts between a viator resident in

19  this state and one or more viatical settlement providers.

20  Notwithstanding the manner in which the viatical settlement

21  broker is compensated, a viatical settlement broker is deemed

22  to represent only the viator and owes a fiduciary duty to the

23  viator to act according to the viator's instructions and in

24  the best interest of the viator.  The term does not include an

25  attorney, licensed Certified Public Accountant, or investment

26  adviser lawfully registered with the Department of Banking and

27  Finance under chapter 517 financial planner, or person acting

28  under a power of attorney from the viator, who is retained to

29  represent the viator and whose compensation is paid directly

30  solely by or at the direction and on behalf of the viator

31

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  1  without regard to whether a viatical settlement contract is

  2  effected.

  3         (5)  "Viatical settlement contract" means a written

  4  agreement settlement entered into between a viatical

  5  settlement provider, or its related provider trust, and a

  6  viator.  The agreement must establish the terms under which

  7  the viatical settlement provider will pay compensation or

  8  anything of value, which compensation or value is less than

  9  the expected death benefit of the insurance policy or

10  certificate, in return for the viator's assignment, transfer,

11  sale, devise, or bequest of the death benefit or ownership of

12  all or a portion of the insurance policy or certificate of

13  insurance to the viatical settlement provider.  A viatical

14  settlement contract also includes a contract for a loan or

15  other financial transaction secured primarily by an individual

16  or group life insurance policy, other than a loan by a life

17  insurance company pursuant to the terms of the life insurance

18  contract, or a loan secured by the cash value of a policy.

19         (6)  "Viatical settlement provider" means a person

20  other than a viator who, in this state, or from this state, or

21  with a resident of this state, effectuates enters into a

22  viatical settlement contract with a viator.  The term does not

23  include:

24         (a)  Any bank, savings bank, savings and loan

25  association, credit union, or other licensed lending

26  institution that takes an assignment of a life insurance

27  policy as collateral for a loan;

28         (b)  A life and health insurer that has lawfully issued

29  a life insurance policy that provides accelerated benefits to

30  terminally ill policyholders or certificateholders; or

31

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  1         (c)  Any natural person who enters into no more than

  2  one viatical settlement contract with a viator in 1 calendar

  3  year, unless such natural person has previously been licensed

  4  under this act or is currently licensed under this act.

  5         (d)  A trust that meets the definition of a "related

  6  provider trust."

  7         (7)  "Viator" means the owner of a life insurance

  8  policy, or a certificateholder under a group policy insuring

  9  the life of an individual, with a natural person who has a

10  catastrophic, or life-threatening, or chronic illness or

11  condition as provided in section 101 of the Internal Revenue

12  Code, and who enters or seeks to enter into a viatical

13  settlement contract has the right to assign, transfer, sell,

14  devise, or bequeath the benefits of his or her life insurance

15  policy. This term does not include a viatical settlement

16  purchaser or a viatical settlement provider or any person

17  acquiring a policy or interest in a policy from a viatical

18  settlement provider, nor does it include an independent

19  third-party trustee or escrow agent.

20         (8)  "Related provider trust" means a trust established

21  by a viatical settlement provider for the sole purpose of

22  entering into or owning viatical settlement contracts or life

23  settlement contracts. This term does not include a trust that

24  does not enter into agreements with a life settlement

25  purchaser, nor does it include an independent third-party

26  trustee or escrow agent.  A related provider trust shall be

27  subject to all provisions of this act that apply to the

28  viatical settlement provider who established the related

29  provider trust, except s. 626.9912, which shall not be

30  applicable. A viatical settlement provider may establish no

31  more than one related provider trust, and the sole trustee of

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  1  such related provider trust shall be the viatical settlement

  2  provider licensed under s. 626.9912. The name of the licensed

  3  viatical settlement provider shall be included within the name

  4  of the related provider trust.

  5         (9)  "Viatical settlement purchase agreement" means a

  6  contract or agreement, entered into by a viatical settlement

  7  purchaser, to which the viator is not a party, to purchase a

  8  life insurance policy or an interest in a life insurance

  9  policy, which is entered into for the purpose of deriving an

10  economic benefit.

11         (10)  "Viatical settlement purchaser" means a person,

12  other than a licensee under part XI or part XII of this

13  chapter, an accredited investor as defined in Rule 501,

14  Regulation D of the Securities Act Rules, or a qualified

15  institutional buyer under Rule 144(a) of the 1933 Securities

16  Act, who gives a sum of money as consideration for a life

17  insurance policy or an interest in a life insurance policy

18  which has been or will be the subject of a viatical settlement

19  contract, for the purpose of deriving an economic benefit.

20         (11)  "Viatical settlement sales agent" means a person

21  other than a licensed viatical settlement provider who

22  arranges the purchase through a viatical settlement purchase

23  agreement of a life insurance policy or an interest in a life

24  insurance policy.

25         Section 2.  Section 626.99181, Florida Statutes, is

26  created to read:

27         626.99181  Viatical settlement broker's

28  compensation.--A viatical settlement broker shall disclose to

29  a prospective viator the amount and method of calculating the

30  broker's compensation and may not receive compensation from

31  anyone other than that disclosed to the viator. The term

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  1  "compensation" includes anything of value paid or given to a

  2  viatical settlement broker for the placement of a policy.

  3         Section 3.  Section 626.9919, Florida Statutes, is

  4  amended to read:

  5         626.9919  Notice of change of address or name; viatical

  6  settlement provider licensees, and broker licensees, and

  7  viatical settlement sales agent licensees.--Each viatical

  8  settlement provider licensee, and each viatical settlement

  9  broker licensee, and viatical settlement sales agent licensees

10  must provide the department at least 30 days' advance notice

11  of any change in the licensee's name, residence address,

12  principal business address, or mailing address.

13         Section 4.  Section 626.992, Florida Statutes, is

14  amended to read:

15         626.992  Use of viatical settlement licensed brokers,

16  and providers, and viatical settlement sales agents

17  required.--

18         (1)  A licensed viatical settlement provider may not

19  use any person to perform the functions of a viatical

20  settlement broker as defined in this act unless such person

21  holds a current, valid license as a viatical settlement

22  broker.  Salaried individuals employed by viatical settlement

23  providers shall engage in viatical settlement broker

24  activities only when accompanied by a viatical settlement

25  broker who holds a current valid license issued under this

26  act. A viatical settlement provider may not use any person to

27  perform the functions of a viatical settlement sales agent

28  unless the person holds a current, valid license as provided

29  in subsection (4).

30         (2)  A licensed viatical settlement broker may not use

31  any person to perform the functions of a viatical settlement

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  1  provider as defined in this act unless such person holds a

  2  current, valid license as a viatical settlement provider. A

  3  viatical settlement provider may not use any person to perform

  4  the functions of a viatical settlement sales agent unless the

  5  person holds a current, valid license as provided in

  6  subsection (4).

  7         (3)  A viatical settlement sales agent may not use any

  8  person to perform the functions of a viatical settlement

  9  broker unless such person holds a current, valid license as a

10  viatical settlement broker.

11         (4)  A person may not perform the functions of a

12  viatical settlement sales agent unless licensed as a life

13  agent as defined in s. 626.051 and as provided in this

14  chapter.

15         Section 5.  Section 626.9922, Florida Statutes, is

16  amended to read:

17         626.9922  Examination.--

18         (1)  The department may examine the business and

19  affairs of any licensee or applicant for a license.  The

20  department may order any licensee or applicant to produce any

21  records, books, files, advertising and solicitation materials,

22  or other information and may take statements under oath to

23  determine whether the licensee or applicant is in violation of

24  the law or is acting contrary to the public interest.  The

25  expenses incurred in conducting any examination or

26  investigation must be paid by the licensee or applicant.

27  Examinations and investigations must be conducted as provided

28  in chapter 624, and licensees are subject to all applicable

29  provisions of the insurance code.

30         (2)  All accounts, records, documents, files, and other

31  information relating to all transactions of viatical

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  1  settlement contracts or viatical settlement purchase

  2  agreements must be maintained by the licensee for a period of

  3  at least 3 years after the death of the insured viator and

  4  must be available to the department for inspection during

  5  reasonable business hours.

  6         Section 6.  Section 626.99235, Florida Statutes, 1998

  7  Settlement, is amended to read:

  8         626.99235  Disclosures to viatical settlement

  9  purchasers investors; misrepresentations.--

10         (1)  No person shall misrepresent the nature of the

11  return or the duration of time to obtain the return of any

12  investment related to one or more viatical settlements sold by

13  a viatical settlement provider or related provider trust.

14         (2)  The viatical settlement provider and the viatical

15  settlement sales agent, itself or through another person,

16  shall provide in writing the following disclosures to any

17  viatical settlement purchaser investor or purchaser investor

18  prospect:

19         (a)  That the return represented as being available

20  under the viatical settlement purchase agreement investment is

21  directly tied to the projected life span or date of death of

22  one or more viators.;

23         (b)  If a return is represented, the disclosure shall

24  indicate the projected life span or date of death of the

25  viator or viators whose life or lives are tied to the return.

26         (c)  If required by the terms of the viatical

27  settlement purchase agreement investment contract, that the

28  viatical settlement purchaser investor may be responsible for

29  the payment of insurance premiums on the life of the viator,

30  or late or surrender fees, or other costs related to the life

31

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  1  insurance policy on the life of the viator or viators which

  2  may reduce the return.

  3         (d)  The amount of any trust fees, commissions,

  4  deductions, or other expenses, if any, to be charged to the

  5  viatical settlement purchaser investor.

  6         (e)  The name and address of the person responsible for

  7  tracking the viator.

  8         (f)  That group policies may contain limitations or

  9  caps in the conversion rights, that additional premiums may

10  have to be paid if the policy is converted, and that the party

11  responsible for the payment of such additional premiums shall

12  be identified.

13         (g)  That the life expectancy and rate of return are

14  only estimates and cannot be guaranteed.

15         (h)  The basis for the assumption of life expectancy

16  utilized in the solicitation or advertisement.

17         (i)  The purchase of a viatical settlement contract

18  should not be considered a liquid purchase, since it is

19  impossible to predict the exact timing of its maturity and the

20  funds may not be available until the death of the viator.

21         (j)  The name and address of the person with the

22  responsibility for paying the premium until the death of the

23  insured.

24

25  The written disclosure required under this subsection shall be

26  conspicuously displayed in any viatical settlement purchase

27  investment agreement, and in any solicitation material

28  furnished to the viatical settlement purchaser investor by

29  such viatical settlement provider, related provider trust, or

30  person, and shall be in contrasting color and in not less than

31  10-point type or no smaller than the largest type on the page

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  1  if larger than 10-point type. The department is authorized to

  2  adopt by rule the disclosure form to be used. The disclosures

  3  need not be furnished in an invitation to inquire, the

  4  objective of which is to create a desire to inquire further

  5  about entering into a viatical settlement purchase agreement.

  6  The invitation to inquire may not quote rates of return, may

  7  not include material attendant to the execution of any

  8  specific viatical settlement purchase agreement, and may not

  9  relate to any specific viator.

10         Section 7.  Subsection (7) of section 626.9924, Florida

11  Statutes, is created to read:

12         626.9924  Viatical settlement contracts; procedures;

13  rescission.--

14         (7) Within 10 days after the expiration of the

15  rescission period of the viatical settlement contract as set

16  forth in this section, the viatical settlement provider must

17  give notice to the insurer that the policy has become subject

18  to a viatical settlement contract.

19         Section 8.  Section 626.9925, Florida Statutes, is

20  amended to read:

21         626.9925  Rules.--The department may adopt rules to

22  implement this act, including rules establishing standards for

23  evaluating advertising by licensees and rules providing for

24  the collection of data and recordkeeping requirements relating

25  to executed viatical settlement contracts and viatical

26  settlement purchase agreements.

27         Section 9.  Section 626.9926, Florida Statutes, is

28  amended to read:

29         626.9926  Rate regulation not authorized.--Nothing in

30  this act shall be construed to authorize the department to

31  directly or indirectly regulate the amount paid as

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  1  consideration for entry into a viatical settlement contract or

  2  viatical settlement purchase agreement.

  3         Section 10.  Subsection (1) of section 626.9927,

  4  Florida Statutes, is amended to read:

  5         626.9927  Unfair trade practices; cease and desist;

  6  injunctions; civil remedy.--

  7         (1)  A violation of this act is an unfair trade

  8  practice under ss. 626.9521 and 626.9541 and is subject to the

  9  penalties provided in the insurance code.  Part X of this

10  chapter applies to a licensee under this act or a transaction

11  subject to this act as if a viatical settlement contract and a

12  viatical settlement purchase agreement were an insurance

13  policy.

14         Section 11.  Section 626.99272, Florida Statutes, is

15  created to read:

16         626.99272  Cease-and-desist orders and fines.--

17         (1)  The department may issue a cease-and-desist order

18  upon a person that violates any provision of this part, any

19  rule or order adopted by the department, or any written

20  agreement entered into with the department.

21         (2)  When the department finds that such an action

22  presents an immediate danger to the public which requires an

23  immediate final order, it may issue an emergency

24  cease-and-desist order reciting with particularity the facts

25  underlying such findings.  The emergency cease-and-desist

26  order is effective immediately upon service of a copy of the

27  order on the respondent and remains effective for 90 days.  If

28  the department begins nonemergency cease-and-desist

29  proceedings under subsection (1), the emergency

30  cease-and-desist order remains effective, absent an order by

31  an appellate court of competent jurisdiction pursuant to ss.

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  1  120.68, until the conclusion of proceedings under ss. 120.569

  2  and 120.57.

  3         (3)  The department may impose and collect an

  4  administrative fine not to exceed $10,000 for each nonwillful

  5  violation and $25,000 for each willful violation of any

  6  provision of this part.

  7         Section 12.  Section 626.99275, Florida Statutes, is

  8  created to read:

  9         626.99275  Prohibited practices.--It is unlawful for

10  any person:

11         (1)  To knowingly enter into a viatical settlement

12  contract the subject of which is a life insurance policy that

13  was obtained by means of a false, deceptive, or misleading

14  application for the life insurance policy.

15         (2)  In the solicitation or sale of a viatical

16  settlement purchase agreement:

17         (a)  To employ any device, scheme, or artifice to

18  defraud;

19         (b)  To obtain money or property by means of an untrue

20  statement of a material fact or by any omission to state a

21  material fact necessary in order to make the statements made,

22  in light of the circumstances under which they were made, not

23  misleading; or

24         (c)  To engage in any transaction, practice, or course

25  of business which operates or would operate as a fraud or

26  deceit upon a person.

27         Section 13.  Section 626.99277, Florida Statutes, is

28  created to read:

29         626.99277  False representations; deceptive words.--

30         (1)  It is unlawful for a person in the advertisement,

31  offer, or sale of a viatical settlement purchase agreement to

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  1  misrepresent that such an agreement has been guaranteed,

  2  sponsored, recommended, or approved by the state, or any

  3  agency or officer of the state or by the United States or any

  4  agency or officer of the United States.

  5         (2)  It is unlawful for a person in conjunction with

  6  the sale of a viatical settlement purchase agreement to

  7  directly or indirectly misrepresent that the person has been

  8  sponsored, recommended, or approved, or that his or her

  9  abilities or qualifications have in any respect been passed

10  upon, by this state or any other state, or any agency or

11  officer thereof, or by the United States or any agency or

12  officer thereof.

13         (3)  It is unlawful for a person in the offer or sale

14  of a viatical settlement purchase agreement to obtain money or

15  property by:

16         (a)  A misrepresentation that the viatical settlement

17  purchase agreement purchased, offered, or sold is guaranteed,

18  sponsored, recommended, or approved by this state or any other

19  state, or any agency or officer thereof, or by the United

20  States or any agency or officer thereof.

21         (b)  A misrepresentation that the person is sponsored,

22  recommended, or approved, or that the person's abilities or

23  qualifications have in any respect been passed upon, by this

24  state or any other state, or any agency or officer thereof, or

25  by the United States or any agency or officer thereof.

26         (4)  Neither subsection (1) nor subsection (2) may be

27  construed to prohibit a statement that the person is licensed

28  or appointed under this part if such a statement is required

29  by this part or rules adopted under this part, if the

30  statement is true in fact and if the effect of the statement

31  is not misrepresented.

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  1         (5)  A person may not represent that a viatical

  2  settlement purchase agreement is guaranteed by any insurance

  3  guaranty fund.

  4         (6)  A person may not represent that the investment in

  5  a viatical settlement purchase agreement is "guaranteed," that

  6  the principal is "safe," or that the investment is free of

  7  risk.

  8         Section 14.  Section 626.9929, Florida Statutes, is

  9  amended to read:

10         626.9929  Grace period.--A viatical settlement sales

11  agent provider or viatical settlement broker that was

12  transacting business in this state on June 30, 1999 1996, may

13  continue to transact such business, in the absence of any

14  orders by the department to the contrary, until the department

15  approves or disapproves the sales agent's provider's or

16  broker's application for licensure if the sales agent provider

17  or broker files with the department no later than November 1,

18  1999, an application for licensure and all forms currently in

19  use no later than November 1, 1996, and if the sales agent

20  provider or broker complies with all other provisions of this

21  act.

22         Section 15.  Part XII of chapter 626, Florida Statutes,

23  to be entitled "Life Settlement Contracts", consisting of ss.

24  626.994, 626.9941, 626.9942, 626.99421, 626.99422, 626.99423,

25  626.9943, 626.99431, 626.99432, 626.9944, 626.9945, 626.9946,

26  626.9947, 626.9948, 626.9949, 626.99495, 626.995, 626.9952,

27  626.9954, 626.996, 626.9965, 626.997, 626.9975, and 626.998,

28  Florida Statutes, is created to read:

29         626.994  Short Title.--This act may be cited as the

30  "Life Settlement Act."

31         626.9941  Definitions.--As used in this part, the term:

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  1         (1)  "Department" means the Department of Insurance.

  2         (2)  "Independent third-party trustee or escrow agent"

  3  means an attorney, certified public accountant, financial

  4  institution, or other person providing escrow services under

  5  the authority of a regulatory body. The term does not include

  6  any person associated, affiliated, or under common control

  7  with a viatical settlement provider or viatical settlement

  8  broker.

  9         (3)  "Life policy" means a life insurance policy or

10  certificate that has been acquired by a life settlement

11  provider pursuant to a life settlement contract.

12         (4)  "Life settlement broker" means a person who, on

13  behalf of an owner and for a fee, commission, or other

14  valuable consideration, offers or attempts to negotiate life

15  settlement contracts between an owner and one or more life

16  settlement providers.  Notwithstanding the manner in which the

17  life settlement broker is compensated, a life settlement

18  broker is considered to represent only the owner and owes a

19  fiduciary duty to the owner to act according to the owner's

20  instructions and in the best interest of the owner. The term

21  does not include an attorney, licensed Certified Public

22  Accountant, or investment adviser lawfully registered with the

23  Department of Banking and Finance under chapter 517, who is

24  retained to represent the viator and whose compensation is

25  paid directly by or at the direction and on behalf of the

26  viator.

27         (5)  "Life settlement contract" means a written

28  agreement entered into between a life settlement provider and

29  an owner.  The agreement must establish the terms under which

30  the life settlement provider will pay compensation or anything

31  of value, which compensation or value is less than the

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  1  expected death benefit of the insurance policy or certificate,

  2  in return for the owner's assignment, transfer, sale, devise,

  3  or bequest of the death benefit or ownership of all or a

  4  portion of the insurance policy or certificate of insurance to

  5  the life settlement provider.  A life settlement contract also

  6  includes a contract for a loan or other financial transaction

  7  secured primarily by an individual or a group life insurance

  8  policy, other than a loan by a life insurance company pursuant

  9  to the terms of the life insurance contract or a loan secured

10  by the cash value of a policy.

11         (6)  "Life settlement provider" means a person, other

12  than an owner, who, in this state, from this state, or with a

13  resident of this state, effectuates a life settlement

14  contract.  The term does not include:

15         (a)  Any bank, savings bank, savings and loan

16  association, credit union, or other licensed lending

17  institution that takes an assignment of a life insurance

18  policy as collateral for a loan;

19         (b)  A life and health insurer that has lawfully issued

20  a life insurance policy that provides accelerated benefits to

21  terminally ill policyholders or certificateholders; or

22         (c)  Any natural person who enters into no more than

23  one life settlement contract with an owner in one calendar

24  year, unless the natural person has previously been licensed

25  under this act or is currently licensed under this act.

26         (d)  A trust that meets the definition of the term

27  "related provider trust."

28         (7)  "Life settlement purchase agreement" means a

29  contract or agreement, entered into by a life settlement

30  purchaser and a life settlement provider, to which the owner

31  is not a party, to purchase a life insurance policy or an

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  1  interest in a life insurance policy, which is entered into for

  2  the purpose of deriving an economic benefit.

  3         (8)  "Life settlement purchaser" means a person, other

  4  than a licensee under part XI or part XII of this chapter, an

  5  accredited investor as defined in Rule 501, Regulation D of

  6  the Securities Act Rules, or a qualified institutional buyer

  7  under Rule 144(a) of the 1933 Securities Act, who gives a sum

  8  of money as consideration for a life insurance policy or an

  9  interest in a life insurance policy which has been or will be

10  the subject of a life settlement agreement, for the purpose of

11  deriving an economic benefit.

12         (9)  "Life settlement sales agent" means a person or

13  entity other than a licensed life settlement provider which

14  arranges the purchase through a life settlement purchase

15  agreement of a life insurance policy or an interest in a life

16  insurance policy.

17         (10)  "Owner" means the individual or entity who is the

18  original owner or subsequent assignee or transferee, who has

19  or had a bona fide insurable interest in a life insurance

20  policy insuring the life of a person who does not have a

21  catastrophic or life-threatening or chronic illness or

22  condition, who has the right to assign, transfer, sell,

23  devise, or bequeath the benefits of the life insurance policy,

24  and who enters or seeks to enter into a life settlement

25  contract.  The term does not include a life settlement

26  purchaser, a life settlement provider, or any person acquiring

27  a policy or interest in a policy from a life settlement

28  provider, nor does it include an independent third-party

29  trustee or escrow agent.

30         (11)  "Person" has the meaning specified in s. 1.01.

31

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  1         (12)  "Related provider trust" means a trust

  2  established by a life settlement provider for the sole purpose

  3  of entering into or owning viatical or life settlement

  4  contracts. This term does not include a trust that does not

  5  enter into agreements with a life settlement purchaser, nor

  6  does it include an independent third-party trustee or escrow

  7  agent. A related provider trust is subject to all provisions

  8  of this part which apply to the life settlement provider who

  9  established the related provider trust except s. 626.9942,

10  which is inapplicable. A life settlement provider may

11  establish no more than one related provider trust, and the

12  sole trustee of the related provider trust must be the life

13  settlement provider licensed under s. 626.9942. The name of

14  the licensed life settlement provider must be included within

15  the name of the related provider trust.

16         626.9942  Life settlement provider license required;

17  application for license.--

18         (1)  After July 1, 1999, a person may not perform the

19  functions of a life settlement provider as defined in this

20  part nor enter into or solicit a life settlement contract

21  without first having obtained a license from the department

22  either as a viatical settlement provider as provided for in

23  part XI of this chapter or as a life settlement provider under

24  this section.

25         (2)  Application for a life settlement provider license

26  must be made to the department by the applicant, under oath,

27  on a form prescribed by the department and signed by the

28  applicant.  The application must be accompanied by a fee of

29  $500. If the applicant is a corporation, the application must

30  be under oath and signed by the president and the secretary of

31  the corporation.

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  1         (3)  In the application, the applicant must provide all

  2  of the following:

  3         (a)  The applicant's full name, age, residence address,

  4  and business address and all occupations engaged in by the

  5  applicant during the 5 years preceding the date of the

  6  application.

  7         (b)  A copy of the applicant's basic organizational

  8  documents, if any, including the articles of incorporation,

  9  articles of association, partnership agreement, trust

10  agreement, or other similar documents, together with all

11  amendments to such documents.

12         (c)  Copies of all bylaws, rules, regulations, or

13  similar documents regulating the conduct of the applicant's

14  internal affairs.

15         (d)  A list showing the name, business and residence

16  addresses, and official position of each individual who is

17  responsible for conduct of the applicant's affairs, including,

18  but not limited to, any member of the applicant's board of

19  directors, board of trustees, executive committee, or other

20  governing board or committee and any other person or entity

21  owning or having the right to acquire 10 percent or more of

22  the voting securities of the applicant.

23         (e)  With respect to each individual identified under

24  paragraph (d):

25         1.  A sworn biographical statement on forms supplied by

26  the department.

27         2.  A set of fingerprints on forms prescribed by the

28  department, certified by a law enforcement officer, and

29  accompanied by the fingerprinting fee specified in s. 624.501.

30         3.  Authority for release of information relating to

31  the investigation of the individual's background.

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  1         (f)  All applications, life settlement contract forms,

  2  and other related forms proposed to be used by the applicant.

  3         (g)  Such other information as the department considers

  4  necessary to determine that the applicant and the individuals

  5  identified under paragraph (d) are competent and trustworthy

  6  and can lawfully and successfully act as a life settlement

  7  provider.

  8         (4)  The department may not issue a license to an

  9  entity other than a natural person if it is not satisfied that

10  all officers, directors, employees, stockholders, and partners

11  who exercise or have the ability to exercise effective control

12  of the entity or who have the ability to influence the

13  transaction of business by the entity meet the standards of

14  this part and have not violated any provision of this part or

15  rules of the department related to the business of life

16  settlement contracts.

17         (5)  Upon the filing of a sworn application and the

18  payment of the license fee, the department shall investigate

19  each applicant and may issue the applicant a license if the

20  department finds that the applicant:

21         (a)  Has provided a detailed plan of operation.

22         (b)  Is competent and trustworthy and intends to act in

23  good faith in the business authorized by the license applied

24  for; however, for purposes of this act, including this

25  paragraph, a person may not be considered incompetent and

26  untrustworthy solely for any felony committed more than 5

27  years before licensure if the person has had his or her civil

28  rights restored by the Governor and Cabinet with respect to

29  the felony.

30         (c)  Has a good business reputation and has had

31  experience, training, or education that qualifies the

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  1  applicant to conduct the business authorized by the license

  2  applied for.

  3         (d)  If the applicant is a corporation, is a

  4  corporation incorporated under the laws of this state, or is a

  5  foreign corporation authorized to transact business in this

  6  state.

  7         (e)  Has designated the Insurance Commissioner and

  8  Treasurer as its agent for service of process.

  9         (f)  Has made the deposit required by s. 626.99421(3).

10         626.99421  Life settlement provider license

11  continuance; annual report; fees; deposit.--

12         (1)  A life settlement provider license continues in

13  force until suspended or revoked.

14         (2)  Annually, on or before March 1, the life

15  settlement provider licensee shall file a statement containing

16  information the department requires and shall pay to the

17  department a license fee in the amount of $500. A life

18  settlement provider shall include in all statements filed with

19  the department all information requested by the department

20  regarding a related provider trust established by the life

21  settlement provider. The department may require more frequent

22  reporting.  Failure to timely file the annual statement or to

23  timely pay the license fee is grounds for immediate suspension

24  of the license.

25         (3)  A life settlement provider licensee must deposit

26  and maintain deposited in trust with the department securities

27  eligible for deposit under s. 625.52, having at all times a

28  value of not less than $100,000.  As an alternative to meeting

29  the $100,000 deposit requirement, the provider may deposit and

30  maintain deposited in trust with the department such

31  securities in the amount of $25,000 and post with the

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  1  department a surety bond acceptable to the department in the

  2  amount of $75,000.

  3         (4)  There shall be no additional annual license fee or

  4  deposit requirements under this act for a related provider

  5  trust established by a life settlement provider.

  6         626.99422  Suspension, revocation, or nonrenewal of

  7  life settlement provider license; grounds; administrative

  8  fine.--

  9         (1)  The department shall suspend, revoke, or refuse to

10  renew the license of any life settlement provider if the

11  department finds that the licensee:

12         (a)  Has made a misrepresentation in the application

13  for the license;

14         (b)  Has engaged in fraudulent or dishonest practices,

15  or otherwise has been shown to be untrustworthy or incompetent

16  to act as a life settlement provider;

17         (c)  Demonstrates a pattern of unreasonable payments to

18  viators or owners;

19         (d)  Has been found guilty of, or has pleaded guilty or

20  nolo contendere to, any felony, or a misdemeanor involving

21  fraud or moral turpitude, regardless of whether a judgment of

22  conviction has been entered by the court;

23         (e)  Has issued life settlement contracts or viatical

24  settlement contracts that have not been approved pursuant to

25  this part or part XI;

26         (f)  Has failed to honor contractual obligations

27  related to the business of life settlement contracts;

28         (g)  Deals in bad faith with viators, purchasers, or

29  owners;

30         (h)  Has violated any provision of the insurance code

31  or this part;

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  1         (i)  Employs any person who materially influences the

  2  licensee's conduct and who fails to meet the requirements of

  3  this part; or

  4         (j)  No longer meets the requirements for initial

  5  licensure.

  6         (2)  The department may, in lieu of or in addition to

  7  any suspension or revocation, assess an administrative fine

  8  not to exceed $2,500 for each nonwillful violation or $10,000

  9  for each willful violation by a life settlement provider

10  licensee.  The department may also place a life settlement

11  provider licensee on probation for a period not to exceed 2

12  years.

13         (3)  If an employee of a life settlement provider

14  violates any provision of this part, the department may take

15  disciplinary action against the employee as if the employee

16  were licensed under this part, including suspending or

17  otherwise prohibiting the employee from performing the

18  functions of a life settlement provider or life settlement

19  broker as defined in this part.

20         (4)  If a life settlement provider establishes a

21  related provider trust as permitted by this part, the life

22  settlement provider is liable and responsible for the

23  performance of all obligations of the related provider trust

24  under all life settlement contracts entered into by the

25  related provider trust and for the compliance of the related

26  provider trust with all provisions of this part. Any violation

27  of this part by the related provider trust is considered to be

28  a violation of this part by the life settlement provider as

29  well as by the related provider trust. If the related provider

30  trust violates any provisions of this part, the department may

31  exercise all remedies set forth in this part for such

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  1  violations against the life settlement provider, as well as

  2  against the related provider trust.

  3         626.99423  Effect of suspension or revocation of life

  4  settlement provider license; duration of suspension;

  5  reinstatement.--

  6         (1)  When its license is suspended or revoked, the

  7  provider must proceed, immediately following the effective

  8  date of the suspension or revocation, to conclude the affairs

  9  it is transacting under its license. The life settlement

10  provider may not solicit, negotiate, advertise, or effectuate

11  new contracts. The department retains jurisdiction over the

12  life settlement provider until all contracts have been

13  fulfilled or canceled or have expired.

14         (2)  The suspension of the license of a life settlement

15  provider licensee may be for a period, not to exceed 2 years,

16  which is determined by the department.  The department may

17  shorten, rescind, or modify the suspension.

18         (3)  During the period of suspension, the licensee

19  shall file its annual statement and pay license fees as if the

20  license had continued in full force.

21         (4)  If, upon expiration of the suspension order, the

22  license has not otherwise been terminated, the department must

23  reinstate the license only upon written request by the

24  suspended licensee unless the department finds that the

25  grounds giving rise to the suspension have not been removed or

26  that the licensee is otherwise not in compliance with this

27  part. The department must give the licensee notice of its

28  findings no later than 90 days after receipt of the request or

29  upon expiration of the suspension order, whichever occurs

30  later.  If a license is not reinstated in accordance with the

31  procedures set forth in this subsection, it expires at the end

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  1  of the suspension or on the date it otherwise would have

  2  expired, whichever is sooner.

  3         626.9943  Life settlement broker license required;

  4  application for license.--

  5         (1)  After July 1, 1999, a person other than a life

  6  agent licensed under this chapter may not perform the

  7  functions of a life settlement broker as defined in this part

  8  without first having obtained a license from the department as

  9  a viatical settlement broker under part XI of this chapter or

10  as a life settlement broker under this section.

11         (2)  Application for a life settlement broker license

12  must be made to the department by the applicant on a form

13  prescribed by the department, under oath, and signed by the

14  applicant.  The application must be accompanied by a $50

15  filing fee.  If the applicant is a corporation, the

16  application must be under oath and signed by the president and

17  the secretary of the corporation.

18         (3)  In the application, the applicant must provide all

19  of the following:

20         (a)  The applicant's full name, age, residence address,

21  and business address, and all occupations engaged in by the

22  applicant during the 5 years preceding the date of the

23  application; if the applicant is not a natural person, the

24  applicant must provide the information required by this

25  paragraph with respect to all officers, directors, or

26  partners.

27         (b)  A copy of the applicant's basic organizational

28  documents, if any, including the articles of incorporation,

29  articles of association, partnership agreement, trust

30  agreement, or other similar documents, together with all

31  amendments to such documents.

                                  27

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  1         (c)  If the applicant is not a natural person, a list

  2  showing the name, business and residence addresses, and

  3  official position of each individual who is responsible for

  4  conduct of the applicant's affairs, including, but not limited

  5  to, any member of the applicant's board of directors, board of

  6  trustees, executive committee, or other governing board or

  7  committee and any other person or entity owning or having the

  8  right to acquire 10 percent or more of the voting securities

  9  of the applicant.

10         (d)  With respect to an individual applicant and with

11  respect to each individual identified under paragraph (c):

12         1.  A sworn biographical statement on forms supplied by

13  the department.

14         2.  A set of fingerprints on forms prescribed by the

15  department, certified by a law enforcement officer, and

16  accompanied by the fingerprinting fee specified in s. 624.501.

17         3.  Authority, if required by the department, for

18  release of information relating to the investigation of the

19  individual's background.

20         (e)  Such other information as the department considers

21  necessary to determine that the individual applicant and the

22  individuals identified under paragraph (c) are competent and

23  trustworthy and can lawfully and successfully act as a life

24  settlement broker.

25         (4)  Any natural person who is employed by or otherwise

26  represents a life settlement broker licensee, which broker

27  licensee is not a natural person, must also be licensed as a

28  life settlement broker if the employee or other representative

29  performs the functions of a life settlement broker as defined

30  in this part.

31

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  1         (5)  The department may not issue a license to an

  2  applicant if it is not satisfied that the applicant, if a

  3  natural person, or all officers, directors, employees,

  4  stockholders, and partners who exercise or have the ability to

  5  exercise effective control of the applicant or who have the

  6  ability to influence the transaction of business by the

  7  applicant, if the applicant is not a natural person, meet the

  8  standards of this part and have not violated any provision of

  9  this part or rules of the department related to the business

10  of life settlement contracts.

11         (6)  The department may specify the form of the license

12  and may require photographing of the applicant as part of the

13  application process.

14         (7)  Upon the filing of a sworn application and the

15  payment of the license fee and all other applicable fees under

16  this part, the department shall investigate each applicant and

17  may issue the applicant a license if the department finds that

18  the applicant:

19         (a)  Is competent and trustworthy and intends to act in

20  good faith in the business authorized by the license applied

21  for.

22         (b)  Has a good business reputation and has had

23  experience, training, or education that qualifies the

24  applicant to conduct the business authorized by the license

25  applied for.

26         (c)  Except with respect to applicants for nonresident

27  licenses, is a bona fide resident of this state and actually

28  resides in this state at least 180 days a year.  If an

29  applicant holds a similar license or an insurance agent's or

30  broker's license in another state at the time of applying for

31  a license under this section, the applicant may be found to

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  1  meet the residency requirement of this paragraph only after he

  2  or she furnishes a letter of clearance satisfactory to the

  3  department or other proof that the applicant's resident

  4  licenses have been canceled or changed to nonresident status

  5  and that the applicant is in good standing with the licensing

  6  authority.

  7         (d)  If a corporation, is incorporated under the laws

  8  of this state or is a foreign corporation authorized to

  9  transact business in this state.

10         (e)  Has designated the Insurance Commissioner and

11  Treasurer as its agent for service of process.

12         (8)  An applicant for a nonresident life settlement

13  broker license must, in addition to designating the Insurance

14  Commissioner and Treasurer as its agent for service of process

15  as required by this section, also furnish the department with

16  the name and address of a resident of this state upon whom

17  notices or orders of the department or process affecting the

18  applicant or licensee may be served.  After issuance of the

19  license, the licensee must also notify the department of

20  change of the person to receive such notices, orders, or

21  process, and such a change is ineffective until acknowledged

22  by the department.

23         (9)  Beginning July 1, 1999, the department may, by

24  rule, specify experience, educational, or other training

25  standards required for licensure under this section.

26         (10)  Except as otherwise provided in this section,

27  life settlement brokers must be licensed, appointed, renewed,

28  continued, reinstated, and terminated in the manner specified

29  in this chapter for insurance representatives generally;

30  however, life settlement brokers are not subject to continuing

31  education requirements.

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  1         626.99431  Denial, suspension, revocation, or

  2  nonrenewal of life settlement broker license; grounds;

  3  administrative fine.--

  4         (1)  The department shall deny an application for,

  5  suspend, revoke, or refuse to renew the license of any life

  6  settlement broker if the department finds that the licensee:

  7         (a)  Has made a misrepresentation in the application

  8  for the license;

  9         (b)  Has engaged in fraudulent or dishonest practices,

10  or otherwise has been shown to be untrustworthy or incompetent

11  to act as a life settlement broker;

12         (c)  Has been found guilty of, or has pleaded guilty or

13  nolo contendere to, any felony, or a misdemeanor involving

14  fraud or moral turpitude, regardless of whether a judgment of

15  conviction has been entered by the court;

16         (d)  Deals in bad faith with viators, purchasers, or

17  owners;

18         (e)  Has violated any provision of the insurance code

19  or of this part;

20         (f)  Employs any person who materially influences the

21  licensee's conduct and who fails to meet the requirements of

22  this part;

23         (g)  No longer meets the requirements for initial

24  licensure; or

25         (h)  Has received a fee, commission, or other valuable

26  consideration for his or her services involving unlicensed

27  providers with respect to life settlements.

28         (2)  The department may, in lieu of or in addition to

29  any suspension or revocation, assess an administrative fine

30  not to exceed $2,500 for each nonwillful violation or $10,000

31  for each willful violation by a life settlement broker

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  1  licensee.  The department may also place a life settlement

  2  broker licensee on probation for a period not to exceed 2

  3  years.

  4         626.99432  Effect of suspension or revocation of life

  5  settlement broker license; duration of suspension;

  6  reinstatement.--

  7         (1)  When its license is suspended or revoked, the

  8  broker must proceed, immediately following the effective date

  9  of the suspension or revocation, to conclude the affairs it is

10  transacting under its license.  The broker may not perform any

11  of the functions of a life settlement broker as defined in

12  this part.  The department retains jurisdiction over the

13  broker until all contracts have been fulfilled or canceled or

14  have expired.

15         (2)  The suspension of the license of a life settlement

16  broker licensee may be for a period, not to exceed 2 years,

17  which is determined by the department.  The department may

18  shorten, rescind, or modify the suspension.

19         (3)  During the period of suspension, the licensee

20  shall pay license fees, as required by the department, as if

21  the license had continued in full force.

22         (4)  If, upon expiration of the suspension order, the

23  license has not otherwise been terminated, the department must

24  reinstate the license only upon written request by the

25  suspended licensee unless the department finds that the

26  grounds giving rise to the suspension have not been removed or

27  that the licensee is otherwise not in compliance with the

28  requirements of this part.  The department shall give the

29  licensee notice of its findings no later than 90 days after

30  receipt of the request or upon expiration of the suspension

31  order, whichever occurs later.  If a license is not reinstated

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  1  pursuant to the procedures set forth in this subsection, it

  2  expires at the end of the suspension or on the date it

  3  otherwise would have expired, whichever is sooner.

  4         626.9944  Life settlement sales agent; license

  5  required.--A person may not perform the functions of a life

  6  settlement sales agent unless licensed as a life insurance

  7  agent as defined in s. 626.051 and as provided in chapter 626.

  8         626.9945  Notice of change of address or name; life

  9  settlement provider licensees, life settlement broker

10  licensees, and life settlement sales agent licensees.--Each

11  life settlement provider licensee, life settlement broker

12  licensee, and life settlement sales agent licensee must

13  provide the department at least 30 days' advance notice of any

14  change in the licensee's name, residence address, principal

15  business address, or mailing address.

16         626.9946  Use of life settlement brokers, life

17  settlement providers, and life settlement sales agents

18  required.--

19         (1)  A life settlement provider may not use any person

20  to perform the functions of a life settlement broker unless

21  the person holds a current, valid license as a life settlement

22  broker or viatical settlement broker.  Salaried individuals

23  employed by life settlement providers shall engage in life

24  settlement broker activities only when accompanied by a life

25  settlement broker who holds a current valid license.

26         (2)  A life settlement provider may not use any person

27  to perform the functions of a life settlement sales agent

28  unless the person is licensed as set forth in subsection (4).

29         (3)  A life settlement broker may not use any person to

30  perform the functions of a life settlement provider unless the

31  person holds a current, valid license as a life settlement

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  1  provider or a viatical settlement provider.  A licensed life

  2  settlement broker may not use any person to perform the

  3  functions of a life settlement sales agent unless the person

  4  holds a current, valid license as provided in s. 626.9944.

  5         (4)  A life settlement sales agent may not use any

  6  person to perform the functions of a life settlement broker

  7  unless the person holds a current, valid license as a life

  8  settlement broker or a viatical settlement broker.

  9         626.9947  Filing of forms; required procedure;

10  approval.--

11         (1)  A life settlement contract form or related form

12  may be used in this state only after the life settlement

13  provider or related provider trust has filed the form with the

14  department and only after the form has been approved by the

15  department.

16         (2)  The contract form or related form must be filed

17  with the department at least 60 days before its use.  A

18  contract form or related form is considered approved on the

19  60th day after its date of filing unless it has been

20  previously disapproved by the department. The department must

21  disapprove a life settlement contract form or related form

22  that is unreasonable, contrary to the public interest,

23  discriminatory, or misleading or unfair to the owner or

24  insured.

25         (3)  If a life settlement provider elects to use a

26  related provider trust in accordance with this part, the life

27  settlement provider shall file notice of its intention to use

28  a related provider trust with the department, including a copy

29  of the trust agreement of the related provider trust.

30         626.9948  Examination.--

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  1         (1)  The department may examine the business and

  2  affairs of any licensee or applicant for a license. The

  3  department may order any licensee or applicant to produce any

  4  records, books, files, advertising and solicitation materials,

  5  or other information and may take statements under oath to

  6  determine whether the licensee or applicant is in violation of

  7  the law or is acting contrary to the public interest.  The

  8  expenses incurred in conducting any examination or

  9  investigation must be paid by the licensee or applicant.

10  Examinations and investigations must be conducted as provided

11  in chapter 624, and licensees are subject to all applicable

12  provisions of the Insurance Code.

13         (2)  All accounts, records, documents, files, and other

14  information relating to all transactions of life settlement

15  contracts or life settlement purchase agreements must be

16  maintained by the licensee for a period of at least 3 years

17  after the death of the insured and must be available to the

18  department for inspection during reasonable business hours.

19         626.9949  Life settlement contracts; required

20  disclosures to owners.--The life settlement broker, or the

21  life settlement provider in transactions in which no broker is

22  used, must inform the owner by the date of application for a

23  life settlement contract:

24         (1)  That there are possible alternatives to life

25  settlement contracts for persons who do not have a

26  catastrophic or life-threatening illness, including, but not

27  limited to, borrowing against the cash value of the life

28  policy or surrendering the policy.  Information on these

29  alternatives should be obtained directly from the insurer that

30  issued the policy.

31

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  1         (2)  That proceeds of the life settlement could be

  2  taxable, and assistance should be sought from a personal tax

  3  adviser.

  4         (3)  That life settlement proceeds could be subject to

  5  the claims of creditors.

  6         (4)  That receipt of life settlement proceeds could

  7  adversely affect the recipient's eligibility for Medicaid or

  8  other government benefits or entitlements, and advice should

  9  be obtained from the appropriate agencies.

10         (5)  That all life settlement contracts entered into in

11  this state must contain an unconditional rescission provision

12  that allows the owner to rescind the contract within 15 days

13  after the owner receives the life settlement proceeds,

14  conditioned on the return of the proceeds.

15         (6)  The name, business address, and telephone number

16  of the independent third-party escrow agent and the fact that

17  the owner may inspect or receive copies of the relevant escrow

18  or trust agreements or documents.

19         626.99495  Disclosures to life settlement purchasers;

20  misrepresentations.--

21         (1)  A person may not misrepresent or fail to clearly

22  and affirmatively disclose the nature of the return or the

23  duration of time to obtain the return of any investment

24  related to one or more life settlements sold by a life

25  settlement provider or related provider trust.

26         (2)  The life settlement provider and the life

27  settlement sales agent, themselves or through another person

28  or persons, shall provide in writing the following disclosures

29  to any life settlement purchaser or purchaser prospect:

30         (a)  The return available under the life settlement

31  purchase agreement is directly tied to the expected life span

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  1  of one or more persons insured under the policy and other

  2  factors, including, but not limited to, future premiums,

  3  policy loans, cash value, or interest rates;

  4         (b)  That the expected life span is a projection, not

  5  based solely upon the age of the person insured under the

  6  policy.

  7         (c)  That the life expectancy and rate of return are

  8  only estimates, and cannot be guaranteed.

  9         (d)  The basis for the life expectancy used in the

10  solicitation or advertisement.

11         (e)  If required by the terms of the life settlement

12  purchase agreement, that the life settlement purchaser may be

13  responsible for the payment of future insurance premiums on

14  the policy, late or surrender fees, or other costs related to

15  the life insurance policy which may reduce the return, and any

16  such obligations must be clearly set forth in this written

17  disclosure.

18         (f)  The amount of any trust fees, commissions,

19  deductions, or other expenses, if any, to be charged to the

20  life settlement purchaser.

21         (g)  That group policies may contain limitations or

22  caps in the conversion rights, that additional premiums may

23  have to be paid if the policy is converted, and that the party

24  responsible for the payment of such additional premiums shall

25  be identified.

26         (h)  The name and address of the person responsible for

27  tracking the person insured under the policy.

28         (i)  The purchase of a life settlement should not be

29  considered a liquid purchase, since it is impossible to

30  predict the exact timing of its maturity and the funds may not

31

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  1  be available until the death of the person insured under the

  2  policy.

  3         (j)  The name and address of the person responsible for

  4  paying the premium until the death of the person insured under

  5  the policy. The written disclosure required under this

  6  subsection must be conspicuously displayed in any life

  7  settlement purchase agreement, and in any solicitation

  8  material furnished to the life settlement purchaser by the

  9  provider, trust or person, and must be in contrasting color

10  and in not less than 10-point type. The department may by rule

11  adopt the disclosure form to be used. The disclosures need not

12  be furnished in an invitation to inquire, the objective of

13  which is to create a desire to inquire further about entering

14  into a life settlement purchase agreement.  Such an invitation

15  to inquire may not quote rates of return, may not exaggerate

16  the benefits of the purchase, may not include material

17  attendant to the execution of any specific life settlement

18  purchase agreement, and may not relate to any specific owner.

19         626.995  Life settlement contract; procedure;

20  rescission.--

21         (1)  A life settlement provider entering into a life

22  settlement contract with any owner must first obtain a

23  witnessed document in which the owner consents to the life

24  settlement contract, acknowledges that no catastrophic,

25  life-threatening, or chronic illness or condition, as provided

26  in s. 626.9911(7), exists, represents that he or she has a

27  full and complete understanding of the life settlement

28  contract and the benefits of the life insurance policy,

29  releases his or her medical records, and acknowledges that he

30  or she has entered into the life settlement contract freely

31  and voluntarily.

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  1         (2)  All life settlement contracts subject to this part

  2  must contain an unconditional rescission provision that allows

  3  the owner to rescind the contract within 15 days after the

  4  owner receives the life settlement proceeds, conditioned on

  5  the return of the proceeds.

  6         (3)  A life settlement transaction may be completed

  7  only through the use of an independent third-party trustee or

  8  escrow agent.  Immediately upon receipt by the independent

  9  third-party trustee or escrow agent of documents from the

10  owner to effect the transfer of the insurance policy, the life

11  settlement provider must pay the proceeds of the settlement to

12  an escrow or trust account managed by the independent

13  third-party trustee or escrow agent in a financial institution

14  licensed under the laws of this state or a federally chartered

15  financial institution that is a member of the Federal Reserve

16  System, pending acknowledgement of the transfer by the issuer

17  of the policy.  An advance or partial payment of the proceeds

18  due under a life settlement contract may not be used to effect

19  transfer of the subject policy, and any such advance or

20  partial payment is made at the sole discretion and risk of the

21  life settlement provider.

22         (4)  Upon receipt of all life settlement contract

23  proceeds, the independent third-party trustee or escrow agent

24  must release to the life settlement provider all documents

25  necessary to complete the transfer of the insurance policy or

26  certificate of insurance so that the transfer, assignment,

27  sale, bequest, or devise may be effected.

28         (5)  The independent third-party trustee or escrow

29  agent must transfer all proceeds of the life settlement

30  contract to the owner within 3 business days after receiving

31  from the issuer of the subject policy acknowledgment of the

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  1  transfer, assignment, bequest, sale, or devise.  Failure to

  2  transfer proceeds as required by this subsection renders the

  3  life settlement contract and the transfer, assignment,

  4  bequest, sale, or devise voidable.

  5         (6)  Within 10 days after the expiration of the

  6  rescission period of the life settlement contract as set forth

  7  in this section, the provider must give notice to the insurer

  8  that the policy has become subject to a life settlement

  9  contract.

10         626.9952  Rules.--The department may adopt rules to

11  implement this part, including rules establishing standards

12  for evaluating advertising by licensees and rules providing

13  for the collection of data and recordkeeping requirements

14  relating to executed life settlement contracts and life

15  settlement purchase agreements.

16         626.9954  Rate regulation not authorized.--This part

17  does not authorize the department to directly or indirectly

18  regulate the amount paid as consideration for entry into a

19  life settlement contract or life settlement purchase

20  agreement.

21         626.996  Unfair trade practices; cease and desist;

22  injunction; civil remedy; fines.--

23         (1)  A violation of this part is an unfair trade

24  practice under ss. 626.9521 and 626.9541 and is subject to the

25  penalties provided in the insurance code.  Part X of this

26  chapter applies to a licensee under this part or a transaction

27  subject to this part as if a life settlement contract and a

28  life settlement purchase agreement were insurance policies.

29         (2)  The department may issue a cease-and-desist order

30  upon a person that violates any provision of this part, any

31

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  1  rule or order adopted by the department, or any written

  2  agreement entered into with the department.

  3         (3)  When the department finds that such action

  4  presents an immediate danger to the public which requires an

  5  immediate final order, it may issue an emergency

  6  cease-and-desist order reciting with particularity the facts

  7  underlying such findings. The emergency cease-and-desist order

  8  is effective immediately upon service of a copy of the order

  9  on the respondent, and remains effective for 90 days, absent

10  an order by an appellate court of competent jurisdiction under

11  s. 120.68. If the department begins nonemergency

12  cease-and-desist proceedings under subsection (2), the

13  emergency cease-and-desist order remains effective until

14  conclusions of proceedings under ss. 120.569 and 120.57.

15         (4)  In addition to the penalties and other enforcement

16  provisions of this part, if any person violates this part or

17  any rule implementing this part, the department may seek an

18  injunction in the circuit court of the county where the person

19  resides or has a principal place of business and may apply for

20  temporary and permanent orders that the department determines

21  necessary to restrain the person from committing the

22  violation.

23         (5)  The department may impose and collect an

24  administrative fine not to exceed $10,000 for each nonwillful

25  violation and $25,000 for each willful violation of any

26  provision of this part.

27         (6)  Any person damaged by the acts of a person in

28  violation of this part may bring a civil action against the

29  person committing the violation in the circuit court of the

30  county in which the alleged violator resides or has a

31  principal place of business or in the county wherein the

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  1  alleged violation occurred. Upon an adverse adjudication, the

  2  defendant is liable for damages, together with court costs.

  3  The prevailing party is entitled to recover reasonable

  4  attorney's fees incurred by the plaintiff.  When so awarded,

  5  court costs and attorney's fees must be included in the

  6  judgment or decree rendered in the case. If it appears to the

  7  court that the suit brought by the plaintiff was frivolous or

  8  brought for purposes of harassment, the plaintiff is liable

  9  for court costs and reasonable attorney's fees incurred by the

10  defendant.

11         626.9965  Prohibited practices.--It is unlawful for any

12  person:

13         (1)  To knowingly enter into a life settlement

14  contract, the subject of which is a life insurance policy that

15  was obtained by means of a false, deceptive, or misleading

16  application for the life insurance policy.

17         (2)  In the solicitation or sale of a life settlement

18  purchase agreement:

19         (a)  To employ any device, scheme, or artifice to

20  defraud;

21         (b)  To obtain money or property by means of an untrue

22  statement of a material fact or any omission to state a

23  material fact necessary in order to make the statements made,

24  in light of the circumstances under which they were made, not

25  misleading;

26         (c)  To engage in any transaction, practice, or course

27  of business which operates or would operate as a fraud or

28  deceit upon a person.

29         626.997  False representations; deceptive words.--

30         (1)  It is unlawful for a person in the advertisement,

31  offer, or sale of a life settlement purchase agreement to

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  1  misrepresent that the agreement has been guaranteed,

  2  sponsored, recommended, or approved by this or any other

  3  state, or any agency or officer thereof, or by the United

  4  States or any agency or officer thereof.

  5         (2)  It is unlawful for a person in conjunction with

  6  the sale of a life settlement purchase agreement to directly

  7  or indirectly misrepresent that the person has been sponsored,

  8  recommended, or approved, or that his or her abilities or

  9  qualifications have in any respect been passed upon, by this

10  or any other state, or any agency or officer thereof, or by

11  the United States or any agency or officer thereof.

12         (3)  It is unlawful for a person in the offer or sale

13  of any life settlement purchase agreement to obtain money or

14  property by:

15         (a)  A misrepresentation that the life settlement

16  purchase agreement purchased, offered, or sold is guaranteed,

17  sponsored, recommended, or approved by this or any other

18  state, or any agency or officer thereof, or by the United

19  States or any agency or officer thereof.

20         (b)  A misrepresentation that the person is sponsored,

21  recommended, or approved, or that the person's abilities or

22  qualifications have in any respect been passed upon, by this

23  or any other state, or any agency or officer thereof, or by

24  the United States or any agency or officer thereof.

25         (4)  Neither subsection (1) or subsection (2) may be

26  construed to prohibit a statement that the person is licensed

27  or appointed under this part if such a statement is required

28  by this part or rules adopted thereunder, if the statement is

29  true in fact, and if the effect of the statement is not

30  misrepresented.

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  1         (5)  A person may not represent that a life settlement

  2  purchase agreement is guaranteed by any insurance guaranty

  3  fund.

  4         (6)  A person may not represent that the investment in

  5  a life settlement purchase agreement is "guaranteed," that the

  6  principal is "safe," or that the investment is free of risk.

  7         626.9975  Life settlement broker's compensation.--A

  8  life settlement broker shall disclose to a prospective owner

  9  the amount and method of calculating the broker's compensation

10  and may not receive compensation from anyone other than that

11  disclosed to the owner. The term "compensation" includes

12  anything of value paid or given to a life settlement broker

13  for the placement of a policy.

14         626.998  Grace period.--A life settlement provider,

15  life settlement broker, or life settlement sales agent that

16  was transacting business in this state on June 30, 1999, may

17  continue to transact such business until the department

18  approves or disapproves the provider's, broker's, or sales

19  agent's application for licensure, if the provider, broker, or

20  sales agent files with the department an application for

21  licensure and all forms currently in use no later than

22  November 1, 1999, and if the provider, broker, or sales agent

23  complies with all other provisions of this part.

24         Section 16.  This act shall take effect upon becoming a

25  law.

26

27

28

29

30

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                            CS/SB 1242

  3

  4  Clarifies that the term "chronic" in s. 626.9911, F.S., 1998
    Supplement, is to be given the same meaning as that provided
  5  in the Internal Revenue Code.

  6  Conforms s. 626.995, F.S., which pertains to life settlement
    contract procedures, so that the reference to an owner's
  7  acknowledgement regarding his or her medical condition as not
    being life-threatening or catastrophic also includes chronic
  8  as defined in s. 626.9911, F.S.

  9  A technical change to correct the date in s. 626.998, F.S.,
    which provides a grace period in licensure proceedings for
10  life settlement brokers, agents and providers, from June 30,
    1998 to June 30, 1999.
11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

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