Senate Bill sb2582

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    Florida Senate - 2002                                  SB 2582

    By Senator Silver





    38-1612-02

  1                      A bill to be entitled

  2         An act creating the "Debt Management Services

  3         Act"; defining terms; providing for licensure

  4         by the Department of Banking and Finance;

  5         providing license fees; providing restrictions

  6         on marketing, promotion, and advertising;

  7         providing for pre-contract information and for

  8         contract terms; providing standards for advice

  9         to be given by debt management companies;

10         providing criteria for debt management

11         services; providing penalties; providing an

12         effective date.

13

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

15

16         Section 1.  Short title.--This act may be cited as the

17  "Debt Management Services Act."

18         Section 2.  Definitions.--As used in this act, the

19  term:

20         (1)  "Debt management services" means any of the

21  following when provided to debtors who are consumers under

22  consumer credit agreements:

23         (a)  Advising how to restructure debts, how to alter

24  debt repayments, or how to achieve early resettlement of

25  debts;

26         (b)  Contacting creditors in order to make any of the

27  arrangements in paragraph (a), whether that contact amounts to

28  negotiation or not;

29         (c)  Providing a facility for the debtor to make a

30  single repayment that is then distributed on the debtor's

31  behalf to his or her creditors; and

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  1         (d)  Reviewing a debtor's financial circumstances or

  2  payments.

  3         (2)  "Debt management company" means any person that is

  4  licensed to provide debt management services under this act.

  5         (3)  "Department" means the Department of Banking and

  6  Finance.

  7         Section 3.  License.--

  8         (1)  A debt management company may not provide debt

  9  management services without a license under this section.

10         (2)  An application for a license under this section

11  must be submitted to the department on a form as the

12  department may prescribe by rule together with a nonrefundable

13  application fee of $200. The license renewal fee is $200. The

14  department shall adopt by rule a biennial licensure period and

15  procedures for renewal of licenses.

16         (3)  Each license must specify the location for which

17  it is issued and must be conspicuously displayed at that

18  location.

19         (4)  Each debt management company shall designate and

20  maintain an agent for service of process in this state.

21         Section 4.  Marketing, promotion, and advertisements.--

22         (1)  The advertising or promotion of debt management

23  services, whether written or on television or radio, must be

24  accurate and clear and must not mislead, either expressly or

25  by implication or omission.

26         (2)  Advertising of debt management services should

27  not:

28         (a)  State or imply that the service will free the

29  consumer of the need to meet their debts;

30         (b)  Emphasize the savings to be made by rescheduling

31  debts without making it equally clear that this will usually

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  1  lead to an increase in the size of the sum to be repaid and

  2  that rescheduling the debt may impair the consumer's credit

  3  record. Where specific savings are quoted there must be a

  4  similar indication of the likely increase in the total amount

  5  of the sum to be repaid or the period of repayment and the fee

  6  that will be charged; and

  7         (c)  Claim or imply that the debt management company

  8  can guarantee an outcome favorable to the consumer in

  9  negotiations with creditors.

10         (3)  When the arrangements with the debt management

11  company will lead to a period in which contractual payments

12  are not made by the consumer, the consumer must be warned of

13  this in the marketing literature.

14         Section 5.  Pre-contract information.--

15         (1)  A consumer must be provided with adequate

16  information about the debt management service to be provided

17  and the consequences and costs of it before entering into an

18  agreement. All documentation must be clear and in plain

19  language and must state clearly the implications of entering a

20  debt-management program.

21         (2)  When a debt management company contacts a

22  potential client after a referral from a credit broker or

23  lender, the debt management company must disclose at the

24  outset of the conversation how it has obtained the consumer's

25  details, what service they offer, and the fact that the

26  company cannot itself provide a loan.

27         (3)  The nature of the service that is being offered,

28  the total cost to the consumer of the service, including any

29  initial or fixed charge fee or deposit, the periodic

30  management fee to be paid to the debt management company

31  multiplied by the estimated length of the contract, the amount

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  1  to be repaid, and the likely duration of the contract must be

  2  clearly explained to the consumer at the outset.

  3         (4)  When it is not possible to establish at the

  4  pre-contract stage the cost or duration of the contract, the

  5  consumer must be given a realistic estimate of the cost and

  6  duration of the contract. This should be accompanied in close

  7  proximity by a clear warning that it is an estimate. The

  8  assumptions on which the estimate are based should be set out.

  9  If during the pre-contractual stage it becomes clear that the

10  estimate does not adequately reflect the consumer's

11  circumstances, a revised estimate must be given.

12         (5)  If an initial up-front fee or deposit is payable,

13  the consumer must be given a clear explanation of:

14         (a)  What aspect of the service is covered by the fee

15  or for what reason the deposit is held;

16         (b)  The manner in which it is to be calculated; and

17         (c)  Whether it is refundable, with due regard to the

18  principles of contract law in relation to deposits and part

19  payments.

20         (6)  The consumer must be advised that he or she will

21  be given the opportunity to withdraw from the contract if,

22  when informed of the total cost of the service, he or she

23  decides that the service is unsuitable.

24         (7)  Consumers must be clearly warned in writing:

25         (a)  When the first payment goes to the debt management

26  company and not to the creditors, whether as an initial

27  up-front fee, a deposit, or for some other reason, that they

28  will miss a payment to their creditors and will therefore go

29  into arrears or further into arrears;

30         (b)  That creditors are not obliged to accept reduced

31  repayments or to freeze interest and that, unless they do so,

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  1  repaying the same debt over a longer period of time will lead

  2  to an increase in the total amount to be paid;

  3         (c)  That collection actions, including default notices

  4  and litigation, can ensue and that there is no guarantee that

  5  any existing or threatened proceedings will be suspended or

  6  withdrawn. The possibility of default notices, including that

  7  they may incur costs that are added to the debt, must be made

  8  clear;

  9         (d)  Of the likely impact of the debt management

10  program on the consumer's credit rating. In particular it

11  should be stated that he or she might not be able to obtain

12  credit in the short term and that there is some likelihood

13  that medium-to-long-term credit will not be available either.

14  Consumers must not be misled into thinking that their credit

15  rating will improve before the payment of their debts is

16  completed or even immediately thereafter;

17         (e)  Of the importance of meeting debts such as

18  mortgage, rent, and utility payments; and

19         (f)  Not to ignore correspondence or other contacts

20  from creditors or those acting on behalf of creditors.

21         (7)  The nature of those commitments that will and,

22  especially important, those that as a matter of the debt

23  management company's own decision will not be included within

24  the repayment plan must be made clear to potential clients.

25  The debt management company must exercise all due care to

26  ensure that debts that it says it cannot deal with are not

27  included in a program.

28         (8)  When a debt management company is aware that a

29  particular creditor refuses to deal with it, for whatever

30  reason and whether or not the debt management company regards

31  this refusal as justified, the consumer must be informed as

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  1  soon as the debt management company is aware that the consumer

  2  has an account with that creditor.

  3         Section 6.  Contract terms.--Contract terms and

  4  conditions should be fair, written in plain, intelligible

  5  language and easily legible.

  6         (1)  COST AND DURATION OF CONTRACT.--

  7         (a)  The contract should set out the:

  8         1.  Nature of the services that are being supplied,

  9  including the kinds of debt that will and will not be covered;

10          2.  Total cost to the consumer of the service,

11  including any initial or fixed-charge fee or deposit and the

12  periodic management fee to be paid to the debt management

13  company multiplied by the estimated length of the contract;

14         3.  Amount to be repaid; and

15         4.  Duration of the contract.

16         (b)  When it is not possible to state firmly the cost

17  or duration of the contract, the contract must include

18  realistic estimates of the cost and duration of the contract.

19  This should be accompanied in close proximity by a clear

20  warning that it is an estimate. The assumptions on which the

21  estimate is based should be set out.

22         (c)  The contract should specify the circumstances in

23  which the consumer may withdraw and receive a refund of any

24  moneys paid to the debt management company.

25         (d)  The contract must not include any term that states

26  or implies that there are circumstances in which a client is

27  not entitled to a refund. For example a refund, and in some

28  cases a full refund, may be due to a dissatisfied client if:

29         1.  The debt management company has promised more than

30  it can deliver. This may be the case even when the debt

31

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  1  management company's contract is appropriately worded, if it's

  2  written or oral marketing is overly optimistic; or

  3         2.  The debt management company has failed to conduct

  4  negotiations with reasonable care and skill; or

  5         3.  There has been a total failure of consideration.

  6         (e)  The contract should allow the client to withdraw

  7  from the contract when, following signing of the contract, the

  8  total fee differs significantly from the estimate given before

  9  the contract was signed.

10         (2)  HANDLING MONEY.--

11         (a)  Any moneys held on behalf of consumers must be

12  kept in a client account not usable by the debt management

13  company for the purposes of its own business. This includes,

14  in particular, any deposit that under the contract may be

15  returned to the client at any date in the future and any

16  moneys received by the company for payment to creditors. Any

17  interest earned on this account should accrue to the benefit

18  of the client, not the company.

19         (b)  The contract must specify a period within which

20  payments received from the client will normally be passed on.

21  Delays that adversely affect the individual consumer's

22  financial position and which exceed 5 working days from

23  receipt of cleared funds are unacceptable. If the debt

24  management company fails to disburse payments to creditors in

25  accordance with the contract, it must accept responsibility

26  and inform the client of the delay, together with the reason

27  for the delay. When the delay is not beyond its control, the

28  debt management company should take appropriate action to put

29  the consumer in the position in which he or she would have

30  been had the contract been fulfilled. This includes making

31  good any additional interest that has accrued and any default

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  1  charges that have been applied to the account as a result of

  2  the delay. In this respect, the debt management company must

  3  have appropriate systems in place to deal with forseeable

  4  problems and to minimize delays, even when the initial cause

  5  is not its fault. As the consumer relies on the debt

  6  management company to be made aware of any delay, the debt

  7  management company must take reasonable steps to anticipate

  8  delays and make good the losses.

  9         (3)  OTHER TERMS.--

10         (a)  A contract must not prohibit clients from

11  corresponding with or responding to written or oral

12  communications from creditors or others acting on behalf of

13  creditors. However, in order to avoid duplicate or

14  contradictory action, contracts may reasonably require the

15  client to send to the debt management company a copy of any

16  communication from a creditor. When the contract requires or

17  suggests that the client should send such correspondence to

18  the debt management company, the company must deal with it

19  appropriately and promptly. The debt management company must

20  send to the client a copy of any written communication it

21  sends to or receives from the creditor, and unless the

22  creditor itself sends a copy to the client must keep the

23  client informed of other communications.

24         (b)  A contract must not include declarations such as

25  "I fully understand the requirements of the contract" or

26  confirmation that certain provisions have been explained.

27         Section 7.  ADVICE--All advice given to the client

28  should be in the best interests of the client. Debt management

29  programs are not suitable for all debtors, and debt management

30  companies must exercise all due discretion, in the best

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  1  interests of the debtor, in deciding whether or not to take a

  2  debtor as a client.

  3         (1)  FINANCIAL POSITION.--A realistic assessment of the

  4  financial circumstances of the consumer, including both income

  5  and expenses must be made before advice is given.

  6         (a)  Consumer income must be verified by appropriate

  7  means, such as pay slips.

  8         (b)  Reasonable steps must also be taken to verify

  9  regular expenses. Estimates of expenditures on certain items

10  are permitted, but only if precise figures are not available.

11  Standard expenditure guidelines may be used when there is no

12  better indication of the client's expenses if there is nothing

13  to suggest that they are inappropriate. A copy of any

14  financial statement sent to creditors must also be sent to the

15  client.

16         (2)  PAYMENTS.--

17         (a)  Any advice given to the client to cancel direct

18  debits or standing orders before the repayment plan being

19  agreed upon with creditors must be demonstrably in the best

20  interests of the client. Debt management companies must

21  clearly warn clients of the risks and consequences of this

22  course of action if they advise it. When this course is taken,

23  regular payments to creditors, even if lower than the

24  contractual ones, should continue to be made whenever

25  possible.

26         (b)  The difficulties associated with stopping

27  contractual payments are especially acute when they are

28  accompanied by a period in which no payments at all are made

29  or if there is a delay in distributing payments to creditors.

30  If this will, or is likely to, happen under the plan the

31  consumer must be clearly informed and warned of the

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  1  consequences. It is not sufficient for this purpose that a

  2  statement is included to this effect in the small print of the

  3  terms and conditions.

  4         (c)  Clients should not be advised to make payments to

  5  accounts at a rate lower than the rate at which any interest

  6  and other charges are accruing or may accrue, unless this is

  7  demonstrably in their best interests. In such a case, a clear

  8  explanation must be given to the client as to why this course

  9  is necessary and its implications.

10         (d)  If the client follows the plan in order to cancel

11  direct debits or reduce the level of contractual payments and

12  it becomes clear that the course of action is not producing

13  results in the client's interest, then the client must be

14  informed immediately so that he or she may be advised

15  appropriately and take whatever action is in his or her best

16  interests, including the possibility of withdrawing from the

17  plan.

18         (e)  Clients must be advised of the importance of

19  meeting debts such as mortgages, rent, and utility payments.

20  More generally it should not be assumed that it is always in

21  the client's best interests simply to divide available income

22  between debts in proportion to their size. For example advice

23  should take into account the fact that some loans may lose the

24  benefit of a reduced rate of interest if payments are missed

25  or that there may be a benefit in settling a loan with a

26  higher rate of interest sooner than one with a lower rate of

27  interest.

28         Section 8.  Debt management services.--

29         (1)  A debt management company must inform the client

30  of the outcome of negotiations with creditors. This is not

31  limited to the situation when creditors have refused to deal

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  1  with the debt management company, have returned payments to

  2  the debt management company, or refused to freeze interest.

  3  But it is especially important in those cases.

  4         (2)  A client must be kept informed of any developments

  5  in the relationship with creditors, in particular the issue of

  6  default notices or the threat of issue of legal proceedings.

  7         (3)  When the service provided by the debt management

  8  company includes debt repayment, the debt management company

  9  must:

10         (a)  Take full account of debts such as mortgage

11  payments, rent, and utility payments, including any arrears

12  already incurred on those debts, in setting monthly

13  repayments; and

14         (b)  Reassess the payment plan and consider any

15  necessary changes, including bringing the plan to an end, to

16  ensure that it remains in the client's best interests as soon

17  as it becomes aware of material changes in the client's

18  financial position. The client should be advised of any

19  recommended changes without delay. Repayment plans should in

20  any event be reassessed on at least an annual basis and the

21  client informed of the outcome of the reassessment.

22         (4)  A client should be given at the outset a statement

23  of how his or her money is being disbursed. In addition, when

24  a plan has been agreed to, the balance owed or, if an accurate

25  figure is not known, the best estimate. The period of payment

26  needed to clear the debts and the fee charged by the debt

27  management company must be included in the statement. A client

28  must be kept informed of any material changes to these

29  arrangements at the time they occur. A debt management company

30  should meet any reasonable request by a client for a statement

31  of his or her position.

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  1         (5)  A debt management company should respond to

  2  complaints promptly and fairly.

  3         (6)  All correspondence, statements, and other

  4  paperwork sent to or received from the client or the client's

  5  creditors and which has not already been copied to or returned

  6  to the client should be retained by the debt management

  7  company until such time as the contract is completed or

  8  terminated. On termination or completion of the contract, all

  9  retained paperwork should be returned to the client unless, at

10  that time, the client says that he or she does not want the

11  paperwork.

12         Section 9.  Penalties.--If the department finds that

13  any person has violated this act, the department may take one

14  or more of the following actions:

15         (1)  Revoke or suspend a license;

16         (2)  Place a licensee on probation for a period of time

17  subject to conditions the department may specify;

18         (3)  Issue a reprimand; or

19         (4)  Impose an administrative fine not exceeding $250

20  for each violation.

21         Section 10.  This act shall take effect October 1,

22  2002.

23

24            *****************************************

25                          SENATE SUMMARY

26    Creates the Debt Management Services Act providing for
      the licensure and regulation of debt management services
27    by the Department of Banking and Finance. Provides for
      fees and penalties.
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