Senate Bill 0760c1

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    Florida Senate - 2000                            CS for SB 760

    By the Committee on Judiciary and Senator Laurent





    308-1720-00

  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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    Florida Senate - 2000                            CS for SB 760
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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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    Florida Senate - 2000                            CS for SB 760
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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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    Florida Senate - 2000                            CS for SB 760
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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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    Florida Senate - 2000                            CS for SB 760
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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
    308-1720-00




  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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