Senate Bill 0760c1
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Florida Senate - 2000 CS for SB 760
By the Committee on Judiciary and Senator Laurent
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1 A bill to be entitled
2 An act relating to consumer collection
3 practices; amending s. 559.72, F.S.; revising
4 those practices prohibited in debt collection;
5 prohibiting certain communications with a
6 debtor's attorney; prohibiting the causing of
7 charges to be made to any debtor; providing
8 penalties; amending s. 559.77, F.S.; increasing
9 the maximum amount of civil penalties; amending
10 s. 559.78, F.S.; revising provisions relating
11 to judicial enforcement; providing
12 applicability; providing an effective date.
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14 Be It Enacted by the Legislature of the State of Florida:
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16 Section 1. Section 559.72, Florida Statutes, is
17 amended to read:
18 559.72 Prohibited practices generally.--In collecting
19 consumer debts, no debt collector person shall:
20 (1) Simulate in any manner a law enforcement officer
21 or a representative of any governmental agency;
22 (2) Use or threaten force or violence;
23 (3) Tell a debtor who disputes a consumer debt that
24 she or he or any person employing her or him will disclose to
25 another, orally or in writing, directly or indirectly,
26 information affecting the debtor's reputation for credit
27 worthiness without also informing the debtor that the
28 existence of the dispute will also be disclosed as required by
29 subsection (6);
30 (4) Communicate or threaten to communicate with a
31 debtor's employer prior to obtaining final judgment against
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1 the debtor, unless the debtor gives her or his permission in
2 writing to contact her or his employer or acknowledges in
3 writing the existence of the debt after the debt has been
4 placed for collection, but this shall not prohibit a debt
5 collector person from telling the debtor that her or his
6 employer will be contacted if a final judgment is obtained;
7 (5) Disclose to a person other than the debtor or her
8 or his family information affecting the debtor's reputation,
9 whether or not for credit worthiness, with knowledge or reason
10 to know that the other person does not have a legitimate
11 business need for the information or that the information is
12 false;
13 (6) Disclose information concerning the existence of a
14 debt known to be reasonably disputed by the debtor without
15 disclosing that fact. If a disclosure is made prior to such
16 reasonable dispute having been asserted and written notice is
17 received from the debtor that any part of the debt is disputed
18 and if such dispute is reasonable, the person who made the
19 original disclosure shall reveal upon the request of the
20 debtor within 30 days the details of the dispute to each
21 person to whom disclosure of the debt without notice of the
22 dispute was made within the preceding 90 days;
23 (7) Willfully communicate with the debtor or any
24 member of her or his family with such frequency as can
25 reasonably be expected to harass the debtor or her or his
26 family, or willfully engage in other conduct which can
27 reasonably be expected to abuse or harass the debtor or any
28 member of her or his family;
29 (8) Use profane, obscene, vulgar, or willfully abusive
30 language in communicating with the debtor or any member of her
31 or his family;
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1 (9) Claim, attempt, or threaten to enforce a debt when
2 such debt collector person knows that the debt is not
3 legitimate or assert the existence of some other legal right
4 when such debt collector person knows that the right does not
5 exist;
6 (10) Use a communication which simulates in any manner
7 legal or judicial process or which gives the appearance of
8 being authorized, issued or approved by a government,
9 governmental agency, or attorney at law, when it is not;
10 (11) Communicate with a debtor under the guise of an
11 attorney by using the stationery of an attorney or forms or
12 instruments which only attorneys are authorized to prepare;
13 (12) Orally communicate with a debtor in such a manner
14 as to give the false impression or appearance that such debt
15 collector person is or is associated with an attorney;
16 (13) Advertise or threaten to advertise for sale any
17 debt as a means to enforce payment except under court order or
18 when acting as an assignee for the benefit of a creditor;
19 (14) Publish or post, threaten to publish or post, or
20 cause to be published or posted before the general public
21 individual names or any list of names of debtors, commonly
22 known as a deadbeat list, for the purpose of enforcing or
23 attempting to enforce collection of consumer debts;
24 (15) Refuse to provide adequate identification of
25 herself or himself or her or his employer or other entity whom
26 she or he represents when requested to do so by a debtor from
27 whom she or he is collecting or attempting to collect a
28 consumer debt;
29 (16) Mail any communication to a debtor in an envelope
30 or postcard with words typed, written, or printed on the
31 outside of the envelope or postcard calculated to embarrass
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Florida Senate - 2000 CS for SB 760
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1 the debtor. An example of this would be an envelope addressed
2 to "Deadbeat, Jane Doe" or "Deadbeat, John Doe"; or
3 (17) Communicate with the debtor between the hours of
4 9 p.m. and 8 a.m. in the debtor's time zone without the prior
5 consent of the debtor;.
6 (18) Communicate with a debtor if the debt collector
7 knows the debtor is represented by an attorney with respect to
8 such debt and has knowledge of, or can readily ascertain, such
9 attorney's name and address, unless the debtor's attorney
10 fails to respond within a reasonable period of time to a
11 communication from the debt collector or unless the debtor's
12 attorney consents to direct communication with the debtor; or
13 (19) Cause charges to be made to any debtor for
14 communications by concealment of the true purpose of the
15 communication, including collect telephone calls and telegram
16 fees.
17 Section 2. Section 559.77, Florida Statutes, is
18 amended to read:
19 559.77 Civil remedies.--
20 (1) A debtor may bring a civil action against a debt
21 collector person violating the provisions of s. 559.72 in a
22 court of competent jurisdiction of the county in which the
23 alleged violator resides or has his or her principal place of
24 business or in the county wherein the alleged violation
25 occurred.
26 (2) Upon adverse adjudication, the defendant shall be
27 liable for actual damages and for additional statutory damages
28 of up to $1,000 or $500, whichever is greater, together with
29 court costs and reasonable attorney's fees incurred by the
30 plaintiff. In determining the defendant's liability for any
31 additional statutory damages, the court shall consider the
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1 nature of the defendant's noncompliance with s. 559.72, the
2 frequency and persistence of such noncompliance, and the
3 extent to which such noncompliance was intentional. In any
4 class action lawsuit brought under this section, the court may
5 award additional statutory damages of up to $1,000 for each
6 named plaintiff, and an aggregate award of additional
7 statutory damages not to exceed the lesser of $500,000 or 1
8 percent of the defendant's net worth for all remaining class
9 members. The court may not, in its discretion, award punitive
10 damages, but and may provide such equitable relief as it deems
11 necessary or proper, including enjoining the defendant from
12 further violations of this part. If the court finds that the
13 suit fails to raise a justiciable issue of law or fact, the
14 plaintiff shall be liable for court costs and reasonable
15 attorney's fees incurred by the defendant.
16 (3) A debt collector shall not be held liable in any
17 action brought under this section if the debt collector shows
18 by a preponderance of the evidence that the violation was not
19 intentional and resulted from a bona fide error
20 notwithstanding the maintenance of procedures reasonably
21 adapted to avoid any such error.
22 (4) An action brought under this section must be
23 commenced within 1 year after the date on which the alleged
24 violation occurred.
25 Section 3. Section 559.78, Florida Statutes, is
26 amended to read:
27 559.78 Judicial enforcement.--In addition to other
28 penalties provided in this part, state attorneys and their
29 assistants are authorized to apply to the court of competent
30 jurisdiction within their respective jurisdictions, upon the
31 sworn affidavit of any person alleging a violation of any of
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1 the provisions of this part. Such court shall have
2 jurisdiction, upon hearing and for cause shown, to grant a
3 temporary or permanent injunction restraining any debt
4 collector person from violating any provision of this part,
5 whether or not there exists an adequate remedy at law; and
6 such injunction, suspension, or revocation shall issue without
7 bond.
8 Section 4. This act shall take effect July 1, 2000,
9 and applies to any cause of action accruing on or after that
10 date.
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Florida Senate - 2000 CS for SB 760
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 SB 760
3
4 Deletes from the bill the creation of new s. 702.11, F.S.,
which would have provided for a mortgagor's right to receive a
5 written reinstatement of payoff quote after a complaint
initiating mortgage foreclosure proceedings had been filed and
6 would have exempted the mortgagee's attorney from the
provisions of part VI of chapter 559, the Florida Consumer
7 Collection Practices Act.
8 Amends s. 559.72, F.S., which pertains to prohibited practices
under the Florida Consumer Collection Practices Act (FCCPA).
9 The term "debt collector" is substituted for the word "person"
throughout the section. Additionally, paragraphs (18) and (19)
10 are added to the list of activities which debt collectors
cannot perform. Paragraph (18) prohibits communication with a
11 debtor if the debt collector knows the debtor is represented
by an attorney. Paragraph (19) prohibits charging debtors for
12 communications, such as collect calls and telegrams, in which
the true purpose of the communication is concealed.
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Amends s. 559.77, F.S., which provides for civil remedies
14 under the FCCPA. Upon adverse adjudication, the defendant will
be liable for actual damages and additional statutory damages
15 of up to $1,000. Punitive damages may not be awarded. In a
class action, additional statutory damages of up to $1,000 may
16 be awarded to each named plaintiff, and an aggregate award of
additional statutory damages not to exceed the lesser of
17 $500,000 or 1 percent of the defendant's net worth for all
remaining class members may be awarded.
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Amends s. 559.77, F.S., by adding new paragraphs (3) and (4).
19 Paragraph (3) provides a debt collector with a bona fide error
affirmative defense. Paragraph (4) provides for a 1 year
20 statute of limitations for claims brought under s. 559.72,
F.S.
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Amends s. 559.78, F.S., which provides judicial enforcement
22 penalties under the FCCPA, to substitute the term "debt
collector" for the word "person."
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