CODING: Words stricken are deletions; words underlined are additions.
HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
CHAMBER ACTION
Senate House
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5 ORIGINAL STAMP BELOW
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11 Representative(s) Sublette offered the following:
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13 Amendment (with title amendment)
14 Remove from the bill: Everything after the enacting clause
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16 and insert in lieu thereof:
17 Section 1. Short title.--This act may be cited as the
18 "Florida Title Loan Act."
19 Section 2. Legislative intent.--It is the intent of
20 the Legislature that title loans shall be regulated by the
21 provisions of this act. The provisions of this act shall
22 supersede any other provisions of state law affecting title
23 loans to the extent of any conflict.
24 Section 3. Definitions.--As used in this act, unless
25 the context otherwise requires:
26 (1) "Commercially reasonable" has the same meaning as
27 used in Article 9, part V of ch. 679, Florida Statutes, in
28 addition, nonpublic sales or disposal of personal property
29 between title loan lenders and their business affiliates or
30 family members are sales and disposal that are presumed not to
31 be in a commercially reasonable fashion.
1
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 (2) "Department" means the Department of Banking and
2 Finance.
3 (3) "Executive officer" means the president, chief
4 executive officer, chief financial officer, chief operating
5 officer, executive vice president, senior vice president,
6 secretary, and treasurer.
7 (4) "Identification" means a government-issued
8 photographic identification.
9 (5) "Interest" means the cost of obtaining a title
10 loan and includes any profit or advantage of any kind
11 whatsoever that a title loan lender may charge, contract for,
12 collect, receive, or in any way obtain as a result of a title
13 loan.
14 (6) "License" means a permit issued under this act to
15 make or service title loans in accordance with this act at a
16 single title loan office.
17 (7) "Licensee" means a person who is licensed as a
18 title loan lender.
19 (8) "Loan property" means any motor vehicle
20 certificate of title that is deposited with a title loan
21 lender as a security for a title loan in the course of the
22 title loan lender's business.
23 (9) "Motor vehicle" means an automobile, motorcycle,
24 mobile home, truck, trailer, semitrailer, truck tractor and
25 semitrailer combination, or any other vehicle operated on the
26 public highways and streets of this state, used to transport
27 persons or property, and propelled by power other than
28 muscular power, but excluding a vehicle which runs only upon a
29 track and a mobile home that is the primary residence of the
30 owner.
31 (10) "Title loan" or "loan" means a loan of money
2
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 secured by bailment of a certificate of title to a motor
2 vehicle, except such loans made pursuant to licensees under
3 chapter 516, chapter 520 or chapter 655.
4 (11) "Title loan agreement" or "agreement" means a
5 written agreement in which a title loan lender agrees to make
6 a title loan to a borrower.
7 (12) "Title loan lender" or "lender" means any person
8 who engages in the business of making or servicing title
9 loans.
10 (13) "Title loan office" means the location at which,
11 or premises from which, a title loan lender regularly conducts
12 business under this chapter or any other location that is held
13 out to the public as a location at which a lender makes or
14 services title loans.
15 (14) "Titled personal property" means a motor vehicle
16 that has as evidence of ownership a state-issued certificate
17 of title except for a mobile home that is the primary
18 residence of the borrower.
19 (15) "Ultimate equitable owner" means a person who,
20 directly or indirectly, owns or controls an ownership interest
21 in a corporation, a foreign corporation, an alien business
22 organization, or any other form of business organization,
23 regardless of whether such person owns or controls such
24 ownership interest through one or more persons or one or more
25 proxies, powers of attorney, nominees, corporations,
26 associations, partnerships, trusts, joint stock companies, or
27 other entities or devices, or any combination thereof.
28 Section 4. License required; license fees.--
29 (1) A person may not act as a title loan lender or own
30 or operate a title loan office unless such person has an
31 active title loan lender license issued by the department
3
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 under this act. A title loan lender may not own or operate
2 more than one title loan office unless the lender obtains a
3 separate title loan lender license for each title loan office.
4 (2) A person applying for licensure as a title loan
5 lender shall file with the department an application, the bond
6 required by section 5(3), a nonrefundable application fee of
7 $1,200, a nonrefundable investigation fee of $200, and a
8 complete set of fingerprints taken by an authorized law
9 enforcement officer. The department shall submit such
10 fingerprints to the Department of Law Enforcement or the
11 Federal Bureau of Investigation for state and federal
12 processing. The department may waive, by rule, the requirement
13 that applicants must file a set of fingerprints or the
14 requirement that such fingerprints must be processed by the
15 Department of Law Enforcement or the Federal Bureau of
16 Investigation.
17 (3) If the department determines that an application
18 should be approved, the department shall issue a license for a
19 period not to exceed 2 years.
20 (4) A license shall be renewed biennially by filing a
21 renewal form and a nonrefundable renewal fee of $1,200. A
22 license that is not renewed by the end of the biennial period
23 shall automatically revert to inactive status. An inactive
24 license may be reactivated within 6 months after becoming
25 inactive by filing a reactivation form, payment of the
26 nonrefundable $1,200 renewal fee, and payment of a
27 nonrefundable reactivation fee of $600. A license that is not
28 reactivated within 6 months after becoming inactive may not be
29 reactivated and shall automatically expire. The department
30 shall establish by rule the procedures for renewal and
31 reactivation of a license and shall adopt a renewal form and a
4
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 reactivation form.
2 (5) Each license must be conspicuously displayed at
3 the title loan office. When a licensee wishes to move a title
4 loan office to another location, the licensee shall provide
5 prior written notice to the department.
6 (6) A license issued pursuant to this act is not
7 transferable or assignable.
8 (7) Each licensee shall designate and maintain a
9 registered agent in this state for service of process.
10 (8) Whenever a person or a group of persons, directly
11 or indirectly or acting by or through one or more persons,
12 proposes to purchase or acquire a 25 percent or more interest
13 in a licensee, such person or group shall submit an initial
14 application for licensure under this act prior to such
15 purchase or acquisition. The department shall adopt rules
16 providing for waiver of the application required by this
17 subsection when such purchase or acquisition of a licensee is
18 made by another licensee licensed under this act or when the
19 application is otherwise unnecessary in the public interest.
20 (9) The department may adopt rules to allow for
21 electronic filing of applications, fees, and forms required by
22 this act.
23 (10) All moneys collected by the department under this
24 act shall be deposited into the Regulatory Trust Fund of the
25 Department of Banking and Finance.
26 Section 5. Application for license.--
27 (1) A verified application for licensure under this
28 act, in the form prescribed by department rule, shall:
29 (a) Contain the name and the residence and business
30 address of the applicant. If the applicant is other than a
31 natural person, the application shall contain the name and the
5
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 residence and business address of each ultimate equitable
2 owner of 25 percent or more of such entity and each director,
3 general partner, and executive officer of such entity.
4 (b) State whether any individual identified in
5 paragraph (a) has, within the last 10 years, pleaded nolo
6 contendere to, or has been convicted or found guilty of, a
7 felony, regardless of whether adjudication was withheld.
8 (c) Identify the county and municipality with the
9 street and number or location where the business is to be
10 conducted.
11 (d) Contain additional information as the department
12 determines by rule to be necessary to ensure compliance with
13 this act.
14 (2) Notwithstanding subsection (1), the application
15 need not state the full name and address of each officer,
16 director, and shareholder if the applicant is owned directly
17 or beneficially by a person who as an issuer has a class of
18 securities registered pursuant to section 12 of the Securities
19 Exchange Act of 1934 or, pursuant to section 13 or section
20 15(d) of such act, is an issuer of securities which is
21 required to file reports with the Securities and Exchange
22 Commission, if the person files with the department any
23 information, documents, and reports required by such act to be
24 filed with the Securities and Exchange Commission.
25 (3) An applicant for licensure shall file with the
26 department a bond, in the amount of $100,000 for each license,
27 with a surety company qualified to do business in this state.
28 However, in no event shall the aggregate amount of the bond
29 required for a single title loan lender exceed $1 million. In
30 lieu of the bond, the applicant may establish a certificate of
31 deposit or an irrevocable letter of credit in a financial
6
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 institution, as defined in s. 655.005, Florida Statutes, in
2 the amount of the bond. The original bond, certificate of
3 deposit, or letter of credit shall be filed with the
4 department, and the department shall be the beneficiary to
5 that document. The bond, certificate of deposit, or letter of
6 credit shall be in favor of the department for the use and
7 benefit of any consumer who is injured pursuant to a title
8 loan transaction by the fraud, misrepresentation, breach of
9 contract, financial failure, or violation of any provision of
10 this act by the title loan lender. Such liability may be
11 enforced either by proceeding in an administrative action or
12 by filing a judicial suit at law in a court of competent
13 jurisdiction. However, in such court suit, the bond,
14 certificate of deposit, or letter of credit posted with the
15 department shall not be amenable or subject to any judgment or
16 other legal process issuing out of or from such court in
17 connection with such lawsuit, but such bond, certificate of
18 deposit, or letter of credit shall be amenable to and
19 enforceable only by and through administrative proceedings
20 before the department. It is the intent of the Legislature
21 that such bond, certificate of deposit, or letter of credit
22 shall be applicable and liable only for the payment of claims
23 duly adjudicated by order of the department. The bond,
24 certificate of deposit, or letter of credit shall be payable
25 on a pro rata basis as determined by the department, but the
26 aggregate amount may not exceed the amount of the bond,
27 certificate of deposit, or letter of credit.
28 (4) The department shall approve an application and
29 issue a license if the department determines that the
30 applicant satisfies the requirements of this act.
31 Section 6. Denial, suspension, or revocation of
7
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 license.--
2 (1) The following acts are violations of this act and
3 constitute grounds for the disciplinary actions specified in
4 subsection (2):
5 (a) Failure to comply with any provision of this act,
6 any rule or order adopted pursuant to this act, or any written
7 agreement entered into with the department.
8 (b) Fraud, misrepresentation, deceit, or gross
9 negligence in any title loan transaction, regardless of
10 reliance by or damage to the borrower.
11 (c) Fraudulent misrepresentation, circumvention, or
12 concealment of any matter required to be stated or furnished
13 to a borrower pursuant to this act, regardless of reliance by
14 or damage to the borrower.
15 (d) Imposition of illegal or excessive charges in any
16 title loan transaction.
17 (e) False, deceptive, or misleading advertising by a
18 title loan lender.
19 (f) Failure to maintain, preserve, and keep available
20 for examination all books, accounts, or other documents
21 required by this act, by any rule or order adopted pursuant to
22 this act, or by any agreement entered into with the
23 department.
24 (g) Aiding, abetting, or conspiring by a title loan
25 lender with a person to circumvent or violate any of the
26 requirements of this act.
27 (h) Refusal to provide information upon request of the
28 department, to permit inspection of books and records in an
29 investigation or examination by the department, or to comply
30 with a subpoena issued by the department.
31 (i) Having been convicted of a crime involving fraud,
8
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 dishonest dealing, or any act of moral turpitude or acting as
2 an ultimate equitable owner of 10 percent or more of a
3 licensee who has been convicted of a crime involving fraud,
4 dishonest dealing, or any act of moral turpitude.
5 (j) Making or having made material misstatement of
6 fact in an initial or renewal application for a license.
7 (k) Having been the subject of any decision, finding,
8 injunction, suspension, prohibition, revocation, denial,
9 judgment, or administrative order by any court of competent
10 jurisdiction or administrative law judge, or by any state or
11 federal agency, involving a violation of any federal or state
12 law relating to title loans or any rule or regulation adopted
13 under such law, or has been the subject of any injunction or
14 adverse administrative order by a state or federal agency
15 regulating banking, insurance, finance or small loan
16 companies, real estate, mortgage brokers, or other related or
17 similar industries for acts involving fraud, dishonest
18 dealing, or any act of moral turpitude.
19 (l) Pleading nolo contendere to, or being convicted or
20 found guilty of, a crime involving fraud, dishonest dealing,
21 or any act of moral turpitude, regardless of whether
22 adjudication was withheld.
23 (m) Failing to continuously maintain the bond required
24 by section 5(3).
25 (n) Failing to timely pay any fee, charge, or fine
26 imposed or assessed pursuant to this act or rules adopted
27 under this act.
28 (o) Having a license or registration, or the
29 equivalent, to practice any profession or occupation denied,
30 suspended, revoked, or otherwise acted against by a licensing
31 authority in any jurisdiction for fraud, dishonest dealing, or
9
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 any act of moral turpitude.
2 (p) Having demonstrated unworthiness, as defined by
3 department rule, to transact the business of a title loan
4 lender.
5 (2) Upon a finding by the department that any person
6 has committed any of the acts set forth in subsection (1), the
7 department may enter an order taking one or more of the
8 following actions:
9 (a) Denying an application for licensure under this
10 act.
11 (b) Revoking or suspending a license previously
12 granted pursuant to this act.
13 (c) Placing a licensee or an applicant for a license
14 on probation for a period of time and subject to such
15 conditions as the department specifies.
16 (d) Issuing a reprimand.
17 (e) Imposing an administrative fine not to exceed
18 $5,000 for each separate act or violation.
19 (3) If a person seeking licensure is anything other
20 than a natural person, the eligibility requirements of this
21 section apply to each direct or ultimate equitable owner of 10
22 percent or more of the outstanding equity interest of such
23 entity and to each director, general partner, and executive
24 officer.
25 (4) It is sufficient cause for the department to take
26 any of the actions specified in subsection (2), as to any
27 entity other than a natural person, if the department finds
28 grounds for such action as to any member of such entity, as to
29 any executive officer or director of the entity, or as to any
30 person with power to direct the management or policies of the
31 entity.
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 (5) Each licensee is subject to the provisions of
2 subsection (2) for the acts of employees and agents of the
3 licensee if the licensee knew or should have known about such
4 acts.
5 (6) Licensure under this act may be denied or any
6 license issued under this act may be suspended or restricted
7 if an applicant or licensee is charged, in a pending
8 enforcement action or pending criminal prosecution, with any
9 conduct that would authorize denial or revocation under this
10 section.
11 Section 7. Remedies for title loans made without
12 licensure.--Any title loan made without benefit of a license
13 is void, in which case the person making the title loan
14 forfeits the right to collect any moneys, including principal
15 and interest charged on the title loan, from the borrower in
16 connection with such agreement. The person making the title
17 loan shall return to the borrower the loan property, the
18 titled personal property pledged or the fair market value of
19 such titled personal property, and all principal and interest
20 paid by the borrower. The borrower is entitled to receive
21 reasonable attorney's fees and costs in any action brought by
22 the borrower to recover from the person making the title loan
23 the loan property, the titled personal property, or the
24 principal and interest paid by the borrower.
25 Section 8. Title loan agreement.--
26 (1) At the time a title loan lender makes a title
27 loan, the lender and the borrower shall execute a title loan
28 agreement, which shall be legibly typed or written in
29 indelible ink and completed as to all essential provisions
30 prior to execution by the borrower and lender. The title loan
31 agreement shall include the following information:
11
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 (a) The make, model, and year of the titled personal
2 property to which the loan property relates.
3 (b) The vehicle identification number, or other
4 comparable identification number, along with the license plate
5 number, if applicable, of the titled personal property to
6 which the loan property relates.
7 (c) The name, residential address, date of birth,
8 physical description, and social security number of the
9 borrower.
10 (d) The date the title loan agreement is executed by
11 the title loan lender and the borrower.
12 (e) The identification number and the type of
13 identification, including the issuing agency, accepted from
14 the borrower.
15 (f) The amount of money advanced, designated as the
16 "amount financed."
17 (g) The maturity date of the title loan agreement,
18 which shall be 30 days after the date the title loan agreement
19 is executed by the title loan lender and the borrower.
20 (h) The total title loan interest payable on the
21 maturity date, designated as the "finance charge."
22 (i) The amount financed plus finance charge, which
23 must be paid to reclaim the loan property on the maturity
24 date, designated as the "total amount of all payments."
25 (j) The interest rate, computed in accordance with the
26 regulations adopted by the Federal Reserve Board pursuant to
27 the Federal Truth-in-Lending Act, designated as the "annual
28 percentage rate."
29 (2) The following information shall also be printed on
30 all title loan agreements:
31 (a) The name and physical address of the title loan
12
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 office.
2 (b) The name and address of the department as well as
3 a telephone number to which consumers may address complaints.
4 (c) The following statement in not less than 12-point
5 type that:
6 1. If the borrower fails to repay the full amount of
7 the title loan on or before the end of the maturity date or
8 any extension thereof and fails to make a payment on the title
9 loan within 30 days after the end of the maturity date or any
10 extension thereof, whichever is later, the title loan lender
11 may take possession of the borrower's motor vehicle and sell
12 it in the manner provided by law. Should the vehicle be sold,
13 the borrower is entitled to any proceeds of the sale in excess
14 of the amount owed on the title loan and the reasonable
15 expenses of repossession and sale.
16 2. If the title loan agreement is lost, destroyed, or
17 stolen, the borrower should immediately so advise the issuing
18 title loan lender in writing.
19 (d) The statement that "The borrower represents and
20 warrants that the titled personal property to which the loan
21 property relates is not stolen and has no liens or
22 encumbrances against it, the borrower has the right to enter
23 into this transaction, and the borrower will not apply for a
24 duplicate certificate of title while the title loan agreement
25 is in effect."
26 (e) A blank line for the signature of the borrower and
27 the title loan lender or the lender's agent.
28 (3) At the time of the transaction, the title loan
29 lender shall deliver to the borrower an exact copy of the
30 executed title loan agreement.
31 (4) Upon execution of a title loan agreement, the
13
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 title loan lender may take possession of the loan property and
2 retain possession of it until the loan property is redeemed.
3 The borrower shall have the exclusive right to redeem the loan
4 property by repaying all amounts legally due under the
5 agreement. When the loan property is redeemed, the lender
6 shall immediately return the loan property and commence action
7 to release any security interest in the titled personal
8 property. During the term of the agreement or any extension
9 thereof, a title loan lender may retain physical possession of
10 the loan property only. A title loan lender shall not require
11 a borrower to provide any additional security or guaranty as a
12 condition of entering into a title loan transaction.
13 Section 9. Recordkeeping; reporting; safekeeping of
14 property.--
15 (1) Every title loan lender shall maintain, at the
16 lender's title loan office, such books, accounts, and records
17 of the business conducted under the license issued for such
18 place of business as will enable the department to determine
19 the licensee's compliance with this act.
20 (2) The department may authorize the maintenance of
21 books, accounts, and records at a location other than the
22 lender's title loan office. The department may require books,
23 accounts, and records to be produced and available at a
24 reasonable and convenient location in this state within a
25 reasonable period of time after such a request.
26 (3) The title loan lender shall maintain the original
27 copy of each completed title loan agreement on the title loan
28 office premises, and shall not obliterate, discard, or destroy
29 any such original copy, for a period of at least 2 years after
30 making the final entry on any loan recorded in such office.
31 (4) Loan property which is delivered to a title loan
14
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 lender shall be securely stored and maintained at the title
2 loan office unless the loan property has been forwarded to the
3 appropriate state agency for the purpose of having a lien
4 recorded or deleted.
5 (5) The department may prescribe by rule the books,
6 accounts, and records, and the minimum information to be shown
7 in the books, accounts, and records, of licensees so that such
8 records will enable the department to determine compliance
9 with the provisions of this act.
10 Section 10. Title loan charges.--
11 (1) A title loan lender may charge a maximum interest
12 rate of 30 percent per annum computed on the first $2,000 of
13 the principal amount, 24 percent per annum on that part of the
14 principal amount exceeding $2,000 and not exceeding $3,000,
15 and 18 percent per annum on that part of the principal amount
16 exceeding $3,000. The original principal amount is the same
17 amount as the amount financed, as defined by the federal Truth
18 in Lending Act and Regulation Z of the Board of Governors of
19 the Federal Reserve System. In determining compliance with the
20 statutory maximum interest, the computations must be simple
21 interest and not add-on interest or any other computations.
22 When two or more interest rates are to be applied to the
23 principal amount, the lender may charge interest at that
24 single annual percentage rate which, if applied according to
25 the actuarial method to each of the scheduled periodic
26 balances of principal, would produce at maturity the same
27 total amount of interest as would result from the application
28 of the two or more rates otherwise permitted, based upon the
29 assumption that all payments are made as agreed.
30 (2) The annual percentage rate that may be charged for
31 a title loan may equal, but not exceed, the annual percentage
15
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 rate that must be computed and disclosed as required by the
2 federal Truth in Lending Act and Regulation Z of the Board of
3 Governors of the Federal Reserve System. The maximum annual
4 percentage rate of interest that may be charged is 12 times
5 the maximum monthly rate, and the maximum monthly rate must be
6 computed on the basis of one-twelfth of the annual rate for
7 each full month. The Department of Banking and Finance shall
8 establish by rule the rate for each day in a fraction of a
9 month when the period for which the charge is computed is more
10 or less than 1 month.
11 (3) A title loan agreement may be extended for one or
12 more 30-day periods by mutual consent of the title loan lender
13 and the borrower. Each extension of a title loan agreement
14 shall be executed in a separate extension agreement each of
15 which shall comply with the requirements for executing a title
16 loan agreement as provided in this act. The interest rate
17 charged in any title loan extension agreement shall not exceed
18 the interest rate charged in the related title loan agreement.
19 A title loan lender may not capitalize in any title loan
20 extension agreement any unpaid interest due on the related
21 title loan agreement or any subsequent extensions to that
22 title loan agreement.
23 (4) Any interest contracted for or received, directly
24 or indirectly, by a title loan lender, or an agent of the
25 title loan lender, in excess of the amounts authorized under
26 this chapter are prohibited and may not be collected by the
27 title loan lender or an agent of the title loan lender.
28 (a) If such excess interest resulted from a bona fide
29 error by the title loan lender, or an agent of the title loan
30 lender, the title loan agreement shall be voidable and the
31 lender shall refund the excess interest to the borrower within
16
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 20 days after discovery by the lender or borrower of the bona
2 fide error, whichever occurs first.
3 (b) If such excess interest resulted from an act by
4 the title loan lender, or an agent of the title loan lender,
5 to circumvent the maximum title loan interest allowed by this
6 act, the title loan agreement is void. The lender shall refund
7 to the borrower any interest paid on the title loan and return
8 to the borrower the loan property. The title loan lender
9 forfeits the lender's right to collect any principal owed by
10 the borrower on the title loan.
11 (c) The department may order a title loan lender, or
12 an agent of the title loan lender, to comply with the
13 provisions of paragraphs (a) and (b).
14 (5) Any interest contracted for or received, directly
15 or indirectly, by a title loan lender, or an agent of the
16 title loan lender, in excess of the amount allowed by this act
17 constitutes a violation of chapter 687, Florida Statutes,
18 governing interest and usury, and the penalties of that
19 chapter apply.
20 Section 11. Repossession, disposal of pledged
21 property; excess proceeds.--
22 (1) If a borrower fails to repay all amounts legally
23 due under the title loan agreement on or before the end of the
24 title loan's maturity date or any extension thereof and fails
25 to make a payment on the loan within 30 days after the end of
26 the loan's maturity date or any extension thereof, whichever
27 is later, the title loan lender may take possession of the
28 titled personal property. A lender may take possession of the
29 titled personal property only through an agent who is licensed
30 by the state to repossess motor vehicles.
31 (2) Prior to engaging a repossession agent, the lender
17
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 shall afford the debtor an opportunity to make the titled
2 personal property available to the lender at a place, date,
3 and time reasonably convenient to the lender and the borrower.
4 Prior to taking possession of titled personal property, the
5 lender shall afford the borrower a reasonable opportunity to
6 remove from the titled personal property any personal
7 belongings without charge or additional cost to the borrower.
8 Once the lender takes possession of the titled personal
9 property, the lender, at the lender's sole expense and risk,
10 may authorize a third party to retain physical possession of
11 the titled personal property.
12 (3) Upon taking possession of titled personal
13 property, the lender may dispose of the titled personal
14 property by sale but may do so only through a motor vehicle
15 dealer licensed under s. 320.27. At least 10 days prior to
16 sale, the lender shall notify the borrower of the date, time,
17 and place of the sale and provide the borrower with a written
18 accounting of the principle amount due on the title loan,
19 interest accrued through the date of the lender taking
20 possession of the titled personal property, and any reasonable
21 expenses incurred to date by the lender in taking possession
22 of, preparing for sale, and selling the titled personal
23 property. At any time prior to sale, the lender shall permit
24 the borrower to redeem the titled personal property by
25 tendering a money order or certified check for the principal
26 amount of the title loan, interest accrued through the date of
27 the lender taking possession, and any reasonable expenses
28 incurred to date by the lender in taking possession of,
29 preparing for sale, and selling the titled personal property.
30 Nothing in this act nor in any title loan agreement shall
31 preclude a borrower from purchasing the titled personal
18
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 property at any sale.
2 (4) Any such sale or disposal shall vest in the
3 purchaser the right, title, and interest of the owner and the
4 title loan lender.
5 (5) Within 30 days after the sale of the titled
6 personal property, the borrower is entitled to receive all
7 proceeds from the sale of the motor vehicle in excess of the
8 principal amount due on the loan, interest on the loan up to
9 the date of the lender taking possession, and the reasonable
10 expenses incurred by the lender in taking possession of,
11 preparing for sale, and selling the titled personal property.
12 The borrower is entitled to reasonable attorney fees and costs
13 incurred in any action brought to recover such proceeds that
14 results the title loan lender being ordered to return all or
15 part of such amount.
16 (6) The borrower shall not be personally liable to the
17 lender for any balance due on the title loan remaining after
18 applying the proceeds of the sale of the titled personal
19 property to the principal amount due on the title loan,
20 interest accrued through the date of the lender taking
21 possession, and any reasonable expenses incurred by the lender
22 in taking possession of, preparing for sale, and selling the
23 titled personal property unless such balance exceeds $2,000.
24 If such balance exceeds $2,000, the lender shall be entitled
25 to reasonable attorney fees and costs incurred in any action
26 brought to recover such balance that results in a judgment in
27 favor of the lender.
28 (7) The rights and remedies referred to in this
29 section are cumulative. Except as otherwise provided in this
30 section, the disposal of titled personal property is subject
31 to the provisions of ch. 679, Florida Statutes.
19
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 (8) In taking possession and disposing of titled
2 personal property by sale or otherwise, the title loan lender
3 shall at all times proceed in a commercially reasonable
4 manner.
5 Section 12. Prohibited acts.--
6 (1) A title loan lender, or any agent or employee of a
7 title loan lender, shall not:
8 (a) Falsify or fail to make an entry of any material
9 matter in a title loan agreement or any extension of such
10 agreement.
11 (b) Refuse to allow the department to inspect
12 completed title loan agreements, extensions of such
13 agreements, or loan property during the ordinary operating
14 hours of the title loan lender's business or other times
15 acceptable to both parties.
16 (c) Enter into a title loan agreement with a person
17 under the age of 18 years.
18 (d) Make any agreement requiring or allowing for the
19 personal liability of a borrower or the waiver of any of the
20 provisions of this act.
21 (e) Knowingly enter into a title loan agreement with
22 any person who is under the influence of drugs or alcohol when
23 such condition is visible or apparent, or with any person
24 using a name other than such person's own name or the
25 registered name of the person's business.
26 (f) Fail to exercise reasonable care, as defined by
27 department rule, in the safekeeping of loan property or of
28 titled personal property repossessed pursuant to this act.
29 (g) Fail to return loan property or repossessed titled
30 personal property to a borrower, with any and all of the title
31 loan lender's liens on the property properly released, upon
20
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 payment of the full amount due the title loan lender, unless
2 the property has been seized or impounded by an authorized law
3 enforcement agency, taken into custody by a court, or
4 otherwise disposed of by court order.
5 (h) Sell or otherwise charge for any type of insurance
6 in connection with a title loan agreement.
7 (i) Charge or receive any finance charge, interest, or
8 fees which are not authorized pursuant to this act.
9 (j) Act as a title loan lender without an active
10 license issued under this act.
11 (k) Refuse to accept partial payments toward
12 satisfying any obligation owed under a title loan agreement or
13 extension of such agreement.
14 (l) Charge a prepayment penalty.
15 (m) Engage in the business of selling new or used
16 motor vehicles, or parts for motor vehicles.
17 (n) Act as a title loan lender under this act within a
18 place of business in which the licensee solicits or engages in
19 business outside the scope of this act if the department
20 determines that the licensee's operation of and conduct
21 pertaining to such other business results in an evasion of
22 this act. Upon making such a determination, the department
23 shall order the licensee to cease and desist from such
24 evasion, provided, no licensee shall engage in the pawnbroker
25 business.
26 (2) Title loan companies may not advertise using the
27 words "interest free loans" or "no finance charges."
28 Section 13. Right to reclaim; lost title loan
29 agreement.--
30 (1) Any person presenting identification of such
31 person as the borrower and presenting the borrower's copy of
21
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 the title loan agreement to the title loan lender is presumed
2 to be entitled to reclaim the loan property described in the
3 title loan agreement. However, if the title loan lender
4 determines that the person is not the borrower, the title loan
5 lender is not required to allow the redemption of the loan
6 property by such person. The person reclaiming the loan
7 property must sign the borrower's copy of the title loan
8 agreement which the title loan lender may retain to evidence
9 such person's receipt of the loan property. A person
10 reclaiming the loan property who is not the borrower must show
11 identification to the title loan lender, together with
12 notarized written authorization from the borrower, and the
13 title loan lender shall record that person's name and address
14 on the title loan agreement retained by the title loan lender.
15 In such case, the person reclaiming the borrower's copy of the
16 title loan agreement shall be provided a copy of such signed
17 form as evidence of such agreement.
18 (2) If the borrower's copy of the title loan agreement
19 is lost, destroyed, or stolen, the borrower must notify the
20 title loan lender, in writing by certified or registered mail,
21 return receipt requested, or in person evidenced by a signed
22 receipt, and receipt of such notice shall invalidate such
23 title loan agreement if the loan property has not previously
24 been reclaimed. Before delivering the loan property or issuing
25 a new title loan agreement, the title loan lender shall
26 require the borrower to make a written statement of the loss,
27 destruction, or theft of the borrower's copy of the title loan
28 agreement. The title loan lender shall record on the written
29 statement the type of identification and the identification
30 number accepted from the borrower, the date the statement is
31 given, and the number or date of the title loan agreement
22
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 lost, destroyed, or stolen. The statement shall be signed by
2 the title loan lender or the title loan office employee who
3 accepts the statement from the borrower. The title loan
4 lender shall not impose any type of fee for providing the
5 borrower with a copy of the title loan agreement.
6 Section 14. Criminal penalties.--
7 (1) Any person who acts as a title loan lender without
8 first securing the license prescribed by this act commits a
9 felony of the third degree, punishable as provided in s.
10 775.082, s. 775.083, or s. 775.084, Florida Statutes.
11 (2) In addition to any other applicable penalty, any
12 person who willfully violates any provision of this act or who
13 willfully makes a false entry in any record specifically
14 required by this act commits a misdemeanor of the first
15 degree, punishable as provided in s. 775.082 or s. 775.083,
16 Florida Statutes.
17 Section 15. Subpoenas; enforcement actions; rules.--
18 (1) The department may issue and serve subpoenas to
19 compel the attendance of witnesses and the production of
20 documents, papers, books, records, and other evidence before
21 the department in any matter pertaining to this act. The
22 department may administer oaths and affirmations to any person
23 whose testimony is required. If any person refuses to testify,
24 produce books, records, and documents, or otherwise refuses to
25 obey a subpoena issued under this section, the department may
26 enforce the subpoena in the same manner as subpoenas issued
27 under the Administrative Procedure Act are enforced. Witnesses
28 are entitled to the same fees and mileage as they are entitled
29 to by law for attending as witnesses in the circuit court,
30 unless such examination or investigation is held at the place
31 of business or residence of the witness.
23
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 (2) In addition to any other powers conferred upon the
2 department to enforce or administer this act, the department
3 may:
4 (a) Bring an action in any court of competent
5 jurisdiction to enforce or administer this act, any rule or
6 order adopted under this act, or any written agreement entered
7 into with the department. In such action, the department may
8 seek any relief at law or equity, including a temporary or
9 permanent injunction, appointment of a receiver or
10 administrator, or an order of restitution.
11 (b) Issue and serve upon a person an order requiring
12 such person to cease and desist and take corrective action
13 whenever the department finds that such person is violating,
14 has violated, or is about to violate any provision of this
15 act, any rule or order adopted under this act, or any written
16 agreement entered into with the department.
17 (c) Whenever the department finds that conduct
18 described in paragraph (b) presents an immediate danger to the
19 public health, safety, or welfare requiring an immediate final
20 order, the department may issue an emergency cease and desist
21 order reciting with particularity the facts underlying such
22 findings. The emergency cease and desist order is effective
23 immediately upon service of a copy of the order on the
24 respondent named in the order and shall remain effective for
25 90 days. If the department begins nonemergency proceedings
26 under paragraph (b), the emergency cease and desist order
27 remains effective until the conclusion of the proceedings
28 under ss. 120.569 and 120.57, Florida Statutes.
29 (3) The department may adopt rules pursuant to ss.
30 120.54 and 120.536(1) to implement this act.
31 Section 16. Investigations and complaints.--
24
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 (1) The department may make any investigation and
2 examination of any licensee or other person the department
3 deems necessary to determine compliance with this act. For
4 such purposes, the department may examine the books, accounts,
5 records, and other documents or matters of any licensee or
6 other person. The department may compel the production of all
7 relevant books, records, and other documents and materials
8 relative to an examination or investigation. Examinations
9 shall not be made more often than once during any 12-month
10 period unless the department has reason to believe the
11 licensee is not complying with the provisions of this act.
12 (2) The department shall conduct all examinations at a
13 convenient location in this state unless the department
14 determines that it is more effective or cost-efficient to
15 perform an examination at the licensee's out-of-state
16 location. For an examination performed at the licensee's
17 out-of-state location, the licensee shall pay the travel
18 expense and per diem subsistence at the rate provided by law
19 for up to 30 8-hour days per year for each department examiner
20 who participates in such an examination. However, if the
21 examination involves or reveals possible fraudulent conduct by
22 the licensee, the licensee shall pay the travel expenses and
23 per diem subsistence provided by law, without limitation, for
24 each participating examiner.
25 (3) Any person having reason to believe that any
26 provision of this act has been violated may file with the
27 department a written complaint setting forth the details of
28 such alleged violation and the department may investigate such
29 complaint.
30 Section 17. Paragraphs (a) and (h) of subsection (1)
31 of section 538.03, Florida Statutes, 1998 Supplement, are
25
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 amended to read:
2 538.03 Definitions; applicability.--
3 (1) As used in this part, the term:
4 (a) "Secondhand dealer" means any person, corporation,
5 or other business organization or entity which is not a
6 secondary metals recycler subject to part II and which is
7 engaged in the business of purchasing, consigning, or pawning
8 secondhand goods or entering into title loan transactions.
9 However, secondhand dealers are not limited to dealing only in
10 items defined as secondhand goods in paragraph (g). Except as
11 provided in subsection (2), the term means pawnbrokers,
12 jewelers, precious metals dealers, garage sale operators,
13 secondhand stores, and consignment shops.
14 (h) "Transaction" means any title loan, purchase,
15 consignment, or pawn of secondhand goods by a secondhand
16 dealer.
17 Section 18. Subsection (1) of section 538.16, Florida
18 Statutes, is amended to read:
19 538.16 Secondhand dealers; disposal of property.--
20 (1) Any personal property pawned with a pawnbroker,
21 whether the pawn is a loan of money or a buy-sell agreement or
22 a motor vehicle which is security for a title loan, is subject
23 to sale or disposal if the pawn is a loan of money and the
24 property has not been redeemed or there has been no payment on
25 account made for a period of 90 days, or if the pawn is a
26 buy-sell agreement or if it is a title loan and the property
27 has not been repurchased from the pawnbroker or the title
28 redeemed from the title lender or there has been no payment
29 made on account within 60 days.
30 Section 19. Nothing in this act precludes a county or
31 municipality from adopting ordinances more restrictive than
26
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 the provisions of this act.
2 Section 20. Effective July 1, 1999, the sum of
3 $500,000 is hereby appropriated for the 1999-2000 fiscal year
4 from the Regulatory Trust Fund of the Department of Banking
5 and Finance to the department to fund eight positions for the
6 purpose of carrying out the provisions of this act.
7 Section 21. Paragraph (i) of subsection (1) of section
8 538.03, Florida Statutes, 1998 Supplement, subsection (5) of
9 section 538.06, Florida Statutes, and subsections (4) and (5)
10 of section 538.15, Florida Statutes, are repealed.
11 Section 22. If any provision of this act or the
12 application thereof to any person or circumstance is held
13 invalid, the invalidity shall not affect other provisions or
14 applications of the act which can be given effect without the
15 invalid provision or application, and to this end the
16 provisions of this act are declared severable.
17 Section 23. Except as otherwise provided in this act,
18 this act shall take effect October 1, 1999.
19
20
21 ================ T I T L E A M E N D M E N T ===============
22 And the title is amended as follows:
23 On page 1, line 2, through page 2, line 7,
24 remove from the title of the bill: all of said lines
25
26 and insert in lieu thereof:
27 An act relating to title loan transactions;
28 creating the "Florida Title Loan Act";
29 providing legislative intent; providing
30 definitions; requiring licensure by the
31 Department of Banking and Finance to act as a
27
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 title loan lender; providing for application
2 for licensure; requiring a bond, a
3 nonrefundable application fee, a nonrefundable
4 investigation fee, and fingerprinting;
5 providing for waiver of fingerprinting;
6 providing for inactive licenses; providing for
7 renewal and reactivation of licenses; providing
8 for a renewal fee and a reactivation fee;
9 providing for disposition of certain moneys;
10 providing for acquisition of an interest in a
11 licensee under certain circumstance; providing
12 for denial, suspension, or revocation of
13 license; specifying acts which constitute
14 violations for which certain disciplinary
15 actions may be taken; providing a fine;
16 providing remedies for title loans made or
17 serviced without licensure; providing for a
18 title loan agreement; providing requirements;
19 providing for reclaiming a repossessed motor
20 vehicle under certain circumstances; providing
21 entitlement to certain excess proceeds of a
22 sale or disposal of a motor vehicle; providing
23 for recordkeeping and reporting and safekeeping
24 of property; providing for title loan interest
25 rates; providing requirements and limitations;
26 providing for extensions; providing for return
27 of principal and interest to the borrower under
28 certain circumstance; providing a holding
29 period when there is a failure to reclaim;
30 providing for the disposal of pledged property;
31 providing for disposition of excess proceeds;
28
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HOUSE AMENDMENT
Bill No. HB 299
Amendment No. 01 (for drafter's use only)
1 prohibiting certain acts; providing for the
2 right to reclaim; providing for lost title loan
3 agreements; providing for a title loan lenders
4 lien; providing for criminal penalties;
5 providing for subpoenas, enforcement of
6 actions, and rules; providing for
7 investigations and complaints; authorizing the
8 department to adopt rules; amending ss. 538.03
9 and 538.16, F.S.; deleting provisions relating
10 to title loan transactions; providing for more
11 restrictive local ordinances; providing an
12 appropriation; repealing ss. 538.03(1)(i),
13 538.06(5), and 538.15(4) and (5), F.S.,
14 relating to title loan transactions by
15 secondhand dealers; providing effective dates.
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