1 | The Committee on Judiciary recommends the following: |
2 |
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3 | Committee Substitute |
4 | Remove the entire bill and insert: |
5 | A bill to be entitled |
6 | An act relating to credit counseling services; creating |
7 | pt. IV, ch. 817, F.S.; providing definitions; prohibiting |
8 | certain persons from accepting certain fees or costs from |
9 | debtors under certain circumstances; providing exceptions; |
10 | providing disclosure and financial reporting requirements |
11 | for debt management or credit counseling services; |
12 | requiring an annual audit; requiring a fidelity bond; |
13 | providing public inspection requirements; providing |
14 | disbursement of funds requirements; requiring maintenance |
15 | of a separate trust account under certain circumstances; |
16 | specifying certain violations as unfair or deceptive trade |
17 | practices; providing for penalties and damages; providing |
18 | for actions for damages; providing a criminal penalty; |
19 | providing for awards of attorney's fees and costs; |
20 | providing an effective date. |
21 |
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22 | Be It Enacted by the Legislature of the State of Florida: |
23 |
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24 | Section 1. Part IV of chapter 817, Florida Statutes, |
25 | consisting of sections 817.801, 817.802, 817.803, 817.804, and |
26 | 817.805, Florida Statutes, is created to read: |
27 | PART IV |
28 | CREDIT COUNSELING SERVICES |
29 | 817.801 Definitions.--As used in this part: |
30 | (1) "Credit counseling services" means confidential money |
31 | management, debt reduction, and financial educational services. |
32 | (2) "Debt management services" means services provided to |
33 | a debtor by a credit counseling organization for a fee to: |
34 | (a) Effect the adjustment, compromise, or discharge of any |
35 | unsecured account, note, or other indebtedness of the debtor; or |
36 | (b) Receive from the debtor and disburse to a creditor any |
37 | money or other thing of value. |
38 | (3) "Person" means any individual, corporation, |
39 | partnership, trust, association, or other legal entity. |
40 | (4) "Credit counseling agency" means any organization |
41 | providing credit counseling services. |
42 | 817.802 Unlawful fees and costs.-- |
43 | (1) It is unlawful for any person, while engaging in debt |
44 | management services or credit counseling services, to charge or |
45 | accept from a debtor, directly or indirectly, a fee or |
46 | contribution greater than $50 for the initial setup or initial |
47 | consultation. Subsequently, such person may not charge or accept |
48 | a fee or contribution greater than $120 per year for additional |
49 | consultations or, if debt management services as defined in s. |
50 | 817.801(2)(b) are provided, such person may charge the greater |
51 | of 7.5 percent of the amount paid monthly by such debtor to such |
52 | person or $35 per month. |
53 | (2) No provision of this part prohibits any person, while |
54 | engaging in debt management services or credit counseling |
55 | services, from imposing upon and receiving from a debtor a |
56 | reasonable and separate charge or fee for insufficient funds |
57 | transactions. |
58 | 817.803 Exceptions.--Nothing in this part applies to any |
59 | debt management services or credit counseling services provided |
60 | in the practice of law in this state. Nothing in this part |
61 | applies to any person or entity who engages in debt adjustment |
62 | to adjust the indebtedness owed to such person or entity. |
63 | Nothing in this part applies to the following entities or their |
64 | subsidiaries: the Federal National Mortgage Association; the |
65 | Federal Home Loan Mortgage Corporation; the Florida Housing |
66 | Finance Corporation, a public corporation created in s. 420.504, |
67 | or a bank, bank holding company, trust company, savings and loan |
68 | association, credit union, credit card bank, or savings bank |
69 | that is regulated and supervised by the Office of the |
70 | Comptroller of the Currency, the Office of Thrift Supervision, |
71 | the Federal Reserve, the Federal Deposit Insurance Corporation, |
72 | the National Credit Union Administration, or the Department of |
73 | Financial Services. |
74 | 817.804 Requirements; disclosure and financial |
75 | reporting.-- |
76 | (1) Any person engaged in debt management services or |
77 | credit counseling services shall: |
78 | (a) Obtain from a certified public accountant licensed |
79 | pursuant to s. 473.308 an annual audit of all accounts of such |
80 | person in which the funds of debtors are deposited and from |
81 | which payments are made to creditors on behalf of debtors. |
82 | (b) Obtain and maintain at all times a fidelity bond in an |
83 | amount not less than the greater of $100,000 or 10 percent of |
84 | the monthly average for the immediately preceding 6 months of |
85 | the aggregate amount of all deposits made with such person by |
86 | all debtors, provided the amount of such bond is not required to |
87 | exceed $500,000. The deductible on such coverage shall not |
88 | exceed 10 percent of the face amount of the policy coverage. |
89 | Such policy shall be issued by a company rated at least "A-" or |
90 | its equivalent by a nationally recognized rating organization |
91 | and shall provide for 30 days' advance written notice of |
92 | termination of the policy. |
93 | (2) A copy of the annual audit and insurance policies |
94 | required by this section shall be available for public |
95 | inspection at each branch location. Copies shall be made upon |
96 | written request to any party requesting a copy for a charge not |
97 | to exceed the cost of the reproduction of documents. |
98 | 817.805 Disbursement of funds.-- |
99 | (1) Any person engaged in debt management services or |
100 | credit counseling services shall disburse to the appropriate |
101 | creditors all funds received from a debtor, less any fees |
102 | permitted by s. 817.802, within 30 days after receipt of such |
103 | funds. Further, any person engaged in such services shall |
104 | maintain a separate trust account for the receipt of any funds |
105 | from each debtor and the disbursement of such funds on behalf of |
106 | such debtor. |
107 | (2) Any violation of this part by a person or agent or |
108 | employee of a person is an unfair or deceptive trade practice as |
109 | defined in part II of chapter 501. Violators shall be subject to |
110 | the penalties and remedies provided in such part. Further, any |
111 | consumer injured by a violation of this part may bring an action |
112 | for recovery of damages. Judgment shall be entered for actual |
113 | damages, but in no case less than the amount paid by the buyer |
114 | to the credit counseling organization, plus reasonable |
115 | attorney's fees and costs. |
116 | (3) Any person convicted of violating any provision of |
117 | this section commits a felony of the third degree, punishable as |
118 | provided in s. 775.082 or s. 775.083. |
119 | Section 2. This act shall take effect upon becoming a law. |