Florida Senate - 2005                      COMMITTEE AMENDMENT
    Bill No. SB 1984
                        Barcode 235874
                            CHAMBER ACTION
              Senate                               House
                                   .                    
                                   .                    
 1                                 .                    
                                   .                    
 2                                 .                    
                                   .                    
 3                                 .                    
                                   .                    
 4  ______________________________________________________________
 5  
 6  
 7  
 8  
 9  
10  ______________________________________________________________
11  The Committee on Banking and Insurance (Posey) recommended the
12  following amendment:
13  
14         Senate Amendment (with title amendment) 
15         Delete everything after the enacting clause
16  
17  and insert:  
18         Section 1.  Subsection (7) is added to section 559.543,
19  Florida Statutes, to read:
20         559.543  Definitions.--As used in this part:
21         (7)  "Debtor" or "consumer" means any natural person
22  obligated or allegedly obligated to pay any debt.
23         Section 2.  Section 559.544, Florida Statutes, is
24  amended to read:
25         559.544  Registration required; Exemptions.--
26         (1)  No person shall engage in business in this state
27  as a commercial collection agency, as defined in this part, or
28  continue to do business in this state as a commercial
29  collection agency, without first registering in accordance
30  with this part and thereafter maintaining such registration.
31         (2)  Each commercial collection agency doing business
                                  1
    8:53 AM   04/18/05                             s1984d-bi24-tb7

Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 in this state shall register with the office and annually 2 renew such registration, providing the registration fee, 3 information, and surety bond required by this part. 4 (3) No registration shall be valid for any commercial 5 collection agency transacting business at any place other than 6 that designated in the registration unless the office is first 7 notified in advance of any change of location. A registration 8 under this part is not transferable or assignable. Any 9 commercial collection agency desiring to change its registered 10 name, location, or agent for service of process at any time 11 other than renewal of registration shall notify the office of 12 such change prior to the change. 13 (4) The office shall not accept any registration for 14 any commercial collection agency as validly made and filed 15 with the office under this section unless the registration 16 information furnished to the office by the registrant is 17 complete pursuant to s. 559.545 and facially demonstrates that 18 such registrant is qualified to engage in business as a 19 commercial collection agency, including specifically that 20 neither the registrant nor any principal of the registrant has 21 engaged in any unlawful collection practices, dishonest 22 dealings, acts of moral turpitude, or other criminal acts that 23 reflect an inability to engage in the commercial collection 24 agency business. The office shall inform any person whose 25 registration is rejected by the office of the fact of and 26 basis for such rejection. A prospective registrant shall be 27 entitled to be registered when her or his or its registration 28 information is complete on its face, the applicable 29 registration fee has been paid, and the required evidence of 30 current bond is furnished to the office. 31 (5) The registration requirements of s. 559.545 do 2 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 This section shall not apply to: 2 (1)(a) A member of The Florida Bar, unless the such 3 person is primarily engaged in the collection of commercial 4 claims. "Primarily engaged in the collection of commercial 5 claims" means that more than one-half of the person's income 6 of such person arises from the business of soliciting 7 commercial claims for collection or collecting commercial 8 claims. 9 (2)(b) A financial institution authorized to do 10 business in this state or and any wholly owned subsidiary or 11 an and affiliate thereof. 12 (3)(c) A licensed real estate broker. 13 (4)(d) A title insurance company authorized to do 14 business in this state. 15 (5)(e) A licensed consumer collection agency that 16 which is not primarily engaged in the collection of commercial 17 claims. "Not primarily engaged in the collection of commercial 18 claims" means that less than one-half of the collection 19 revenue of the such agency arises from the collection of 20 commercial claims. 21 (6)(f) A consumer finance company or and any wholly 22 owned subsidiary or an and affiliate thereof. 23 (7)(g) A person licensed pursuant to chapter 520. 24 (8)(h) A credit grantor. 25 (9)(i) An out-of-state collector as defined in this 26 part. 27 (10)(j) An FDIC-insured institution or subsidiary or 28 affiliate thereof. 29 Section 3. Section 559.545, Florida Statutes, is 30 amended to read: 31 (Substantial rewording of section. See 3 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 s. 559.545, Florida Statutes, for current text.) 2 559.545 Registration of commercial collection 3 agencies; procedure.-- 4 (1) A person may not engage in business in this state 5 as a commercial collection agency, as defined in this part, or 6 continue to do business in this state as a commercial 7 collection agency, unless the person is registered with the 8 office according to this part and thereafter maintains the 9 registration. 10 (2) A registration is not valid for any commercial 11 collection agency transacting business at any place other than 12 the place designated in the registration unless the office is 13 first notified in advance of any change of location. 14 (3) Any person who applies for registration as a 15 commercial collection agency in compliance with this part 16 shall do so on forms adopted by the commission and furnished 17 by the office. The commission may establish by rule procedures 18 for depositing fees and filing documents by electronic means 19 provided such procedures provide the office with the 20 information required by this section. The commission or office 21 may require each applicant for a commercial collection agency 22 registration to provide: 23 (a) A nonrefundable application fee in the amount of 24 $650. All amounts collected shall be deposited to the credit 25 of the Regulatory Trust Fund of the office. 26 (b) The name of the applicant, any other names under 27 which the applicant conducts business, and the address of the 28 applicant's principal place of business and each office in 29 this state. 30 (c) The applicant's form and place of organization 31 and, if the applicant is a corporation, a copy of the articles 4 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 of incorporation and amendments to such articles, if a 2 partnership, a copy of the partnership agreement or, if 3 limited liability company, a copy of the articles of 4 organization. 5 (d) Documents demonstrating that the bonding 6 requirements specified in s. 559.546 have been satisfied. 7 (e) Information and documentation necessary to make a 8 determination of the applicant's eligibility for registration. 9 (4) The applicant shall also provide information as 10 the office may require about any partner, officer, or director 11 of the applicant, any person having the same or substantially 12 similar status or performing substantially similar functions, 13 or any person directly or indirectly controlling the 14 applicant. For purposes of this section, the term "directly or 15 indirectly controlling the applicant" means possessing the 16 power to direct or to cause the direction of the management or 17 policies of a company, whether through ownership of stock or 18 securities, by contract, or otherwise. Any individual or 19 company that directly or indirectly has the right to vote 25 20 percent or more of the voting stock or securities of a company 21 or is entitled to 25 percent or more of its profits is 22 presumed to control that company. The office may require 23 information about any such applicant or person, including: 24 (a) His or her full name, current address, current 25 telephone number, date of birth, or social security number or 26 the federal identification number of any corporate owner. 27 (b) His or her previous 10 year educational or 28 employment history. 29 (c) Any adverse decision, finding, injunction, 30 suspension, prohibition, revocation, denial, or judgment by 31 any court of competent jurisdiction or an administrative order 5 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 by an administrative law judge, or by any state or federal 2 agency or any business, professional, or occupational 3 association involving a violation of any law, rule, or 4 regulation relating to any business or professional licensing. 5 (d) Whether he or she committed any acts which would 6 be grounds for denial of an application under s. 559.545(10). 7 (5) An initial application is deemed received for 8 purposes of s. 120.60 upon receipt of the completed 9 application form prescribed by commission rule, the 10 nonrefundable application fee of $650, and any other fee 11 prescribed by law. 12 (6) Upon the filing of an application for registration 13 and payment of all applicable fees, the office shall 14 investigate the applicant. If the office determines that 15 registration should be granted, the office shall register the 16 applicant for a period not to exceed 1 year. 17 (7) The registration of each commercial collection 18 agency expires on December 31 of the year in which the 19 registration became effective unless the registrant has 20 renewed its registration on or before that date. Registration 21 may be renewed as the commission may require by rule, together 22 with payment of the $500 nonrefundable renewal fee and the 23 payment of any amount lawfully due and owing to the office 24 pursuant to any order of the office or pursuant to any 25 agreement with the office. A commercial collection agency that 26 has not renewed its registration by the time the registration 27 period expires may request reactivation of its registration. 28 The registrant shall file its request with the office on or 29 before January 31 of the year following the year of 30 expiration. The request must contain any information the 31 office requires, together with the registration fee required 6 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 in this section, and a nonrefundable reactivation fee in the 2 amount of $250. Any reactivation of registration granted by 3 the office during the month of January is deemed effective 4 retroactive to January 1 of that year. Any registrant that 5 engages in business as a commercial collection agency after 6 its registration has expired violates subsection (1), 7 punishable as provided by ss. 559.548(1) and 559.5477(6). 8 (8) If the information contained in any application or 9 any amendment to such application has changed, the registrant 10 shall file an amendment on the forms prescribed by the 11 commission correcting such information within 30 days after 12 the change. 13 (9) A registration under this part is not transferable 14 or assignable unless accomplished pursuant to this subsection. 15 (a) Changes in registration occasioned by changes in 16 personnel of a partnership or in the principals, copartners, 17 officers, or directors of any registrant or by changes of any 18 material fact shall be reported by written amendment in such 19 form and at such time as the commission may specify by rule. 20 In any case in which a person or a group of persons, directly 21 or indirectly or acting by or through one or more persons, 22 proposes to purchase or acquire a controlling interest in a 23 registrant, such person or group shall submit an initial 24 application for registration as a commercial collection agency 25 prior to such purchase or acquisition at such time and in such 26 form as the commission may prescribe by rule. 27 (b) The commission shall adopt rules providing for 28 waiver of the application required by this subsection when 29 control of a registrant is to be acquired by another 30 registrant under this chapter or when the application is 31 otherwise unnecessary in the public interest. 7 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 (10) The office may deny registration if the 2 applicant, any principal of the applicant, or any person 3 having control of the applicant: 4 (a) Has committed any violation of s. 559.72; 5 (b) Is the subject of a pending criminal prosecution 6 or governmental enforcement action, in any jurisdiction, until 7 the conclusion of such criminal prosecution or enforcement 8 action; 9 (c) Is currently subject to a pending enforcement 10 action by any federal authority for violations of the federal 11 Fair Debt Collection Practices Act or the Federal Trade 12 Commission Act; 13 (d) Has been found guilty of, regardless of 14 adjudication, or has entered a plea of nolo contendere or 15 guilty to, any offense involving fraud, dishonest dealing, or 16 moral turpitude; 17 (e) Has been found guilty of, regardless of 18 adjudication, or has entered a plea of nolo contendere or 19 guilty to, any felony; 20 (f) Has had entered against him or her, or against any 21 business for which he or she was directly or indirectly a 22 controlling person in the business or controlled the business, 23 an injunction, a temporary restraining order, or a final 24 judgment or order, including a stipulated judgment or order, 25 an assurance of voluntary compliance, or any similar document, 26 in any civil or administrative action involving racketeering, 27 fraud, theft, embezzlement, fraudulent conversion, or 28 misappropriation of property or the use of any untrue, 29 deceptive, or misleading representation in an attempt to sell 30 or dispose of real or personal property or the use of any 31 unfair, unlawful, or deceptive trade practice, whether or not 8 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 there is any litigation pending against the applicant; 2 (g) Is subject to or was directly or indirectly a 3 controlling person in the business, or controlled the 4 business, with any company that is, or ever has been, subject 5 to any injunction; temporary restraining order, including a 6 stipulated judgment or order, an assurance of voluntary 7 compliance, or any similar document; or any restrictive court 8 order relating to business activity as the result of any 9 action brought by a governmental agency, including any action 10 affecting any license to do business or practice an occupation 11 or trade; 12 (h) Falsified or willfully omitted any material 13 information asked for in any application, document, or record 14 required to be submitted under this part or the rules of the 15 commission; 16 (i) Made a material false statement of fact in an 17 application for registration or in response to any request or 18 investigation by the office; or 19 (j) Has been the subject of any adverse decision, 20 finding, injunction, suspension, prohibition, revocation, 21 denial, or judgment by any court of competent jurisdiction or 22 an administrative order by an administrative law judge, any 23 state or federal agency, or any business, professional, or 24 occupational association involving a violation of any law, 25 rule, or regulation relating to business or professional 26 licensing. 27 Section 4. Section 559.546, Florida Statutes, is 28 amended to read: 29 (Substantial rewording of section. See 30 s. 559.546, Florida Statutes, for current text.) 31 559.546 Surety bond; evidence of current and valid 9 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 bond.--Pursuant to s. 559.545, the registrant shall provide to 2 the office evidence that the registrant has been issued a 3 current and valid surety bond as required by this part. 4 (1) Before the office may issue a registration, the 5 applicant must provide to the office a corporate surety bond 6 issued by a bonding company or insurance company authorized to 7 do business in this state. 8 (2) The corporate surety bond shall be in the amount 9 of $50,000, paid for and issued for the benefit of any credit 10 grantor against the registrant to secure the faithful 11 performance of the obligations of the registrant with respect 12 to the receipt, handling, and payment of funds collected by 13 the registrant. 14 (3) If multiple claims are filed against the surety on 15 any bond in excess of the amount of the bond, the surety may 16 pay the full amount of the bond to the office and is not 17 further liable under the bond. The office shall hold the funds 18 for distribution to claimants and pay to each claimant the pro 19 rata share of each valid claim made against the funds within 6 20 months after the date of the filing of the first claim against 21 the surety. 22 (4) A corporate surety bond filed with the office for 23 purposes of compliance with this section may not be canceled 24 by the registrant or the corporate surety except upon written 25 notice to the office by registered or certified mail with 26 return receipt requested. A cancellation shall not take effect 27 fewer than 30 days after receipt by the office of such written 28 notice. 29 (5) The corporate surety must, within 10 days after 30 the surety pays any claim to any claimant, give written notice 31 to the office by registered or certified mail of such payment 10 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 with details sufficient to identify the claimant and the claim 2 or judgment so paid. 3 (6) Whenever the principal sum of such bond is reduced 4 by one or more recoveries or payments, the registrant must 5 furnish a new or additional bond so the total or aggregate 6 principal sum of such bonds equals the sum required by this 7 section. Alternatively, a registrant may furnish an 8 endorsement executed by the corporate surety reinstating the 9 bond to the required principal sum. 10 Section 5. Sections 559.5471, 559.5473, 559.5474, 11 559.5475, 559.5476, 559.5477, and 559.5479, Florida Statutes, 12 are created to read: 13 559.5471 Powers and duties of the Office of Financial 14 Regulation.-- 15 (1) Compliance with this part shall be enforced by the 16 office, except when enforcement is specifically committed to 17 another agency. 18 (2) The office may conduct an investigation of any 19 person, within or outside this state, which the office 20 believes is necessary in order to determine whether a person 21 has violated this chapter or the rules adopted by the 22 commission. The office may commence any such investigation 23 when the office receives information from a complaint, the 24 public media, an informant, or any other source that informs 25 the office that a violation of this chapter has occurred or 26 may occur. 27 (3) The commission may adopt rules under ss. 28 120.536(1) and 120.54 to implement and administer this part. 29 (4) The commission may adopt a rule to: 30 (a) Require electronic submission of any form, 31 document, or fee required by this part, provided the rule 11 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 reasonably accommodates a person with a technological or 2 financial hardship. 3 (b) Set forth the criteria and procedures for 4 obtaining an exemption due to a technological or financial 5 hardship. 6 (c) Accept certification of compliance with the 7 requirements of this part in lieu of requiring submission of 8 specified documents. 9 (5) All fees, charges, and fines collected by the 10 office under this part shall be deposited to the credit of the 11 Regulatory Trust Fund of the office. 12 (6) The office may: 13 (a) Issue, revoke, quash, or modify and serve 14 subpoenas to compel the attendance of witnesses and subpoenas 15 duces tecum to compel the production of all books, accounts, 16 records, and other documents and materials relevant to an 17 investigation. The office may exercise these powers even if 18 the subject of the investigation is exempt from registration. 19 (b) Administer oaths and affirmations to any person. 20 (c) Take or cause to be taken testimony and 21 depositions. 22 (7)(a) In the event of noncompliance with a subpoena 23 or subpoena duces tecum the office issued or caused to be 24 issued, the office may petition a court of competent 25 jurisdiction in the county in which the person subpoenaed 26 resides or has her, his, or its principal place of business 27 for an order requiring the person to appear and testify and to 28 produce the books, accounts, records, and other documents that 29 are specified in the subpoena duces tecum. 30 (b) A copy of the petition shall be served upon the 31 person subpoenaed by any person authorized by this section to 12 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 serve subpoenas, who shall make and file with the court an 2 affidavit showing the time, place, and date of service. 3 (c) At a hearing on the petition to enforce compliance 4 with a subpoena, the person subpoenaed, or any person whose 5 interest will be substantially affected by the investigation 6 or subpoena, may appear and object to the subpoena and the 7 granting of the petition. The court may make any order that 8 justice requires in order to protect a party or other person 9 and her or his personal and property rights, including, but 10 not limited to, protection from annoyance, embarrassment, 11 oppression, undue burden, or expense. 12 (d) Failure to comply with an order granting, in whole 13 or in part, a petition to enforce a subpoena is a contempt of 14 the court. 15 (8) Witnesses are entitled to the same fees and 16 mileage to which they would be entitled by law for attending 17 as witnesses in circuit court, except that fees or mileage may 18 not be allowed for testimony of a person taken at the person's 19 principal office or residence. 20 (9) Reasonable and necessary costs incurred by the 21 office during an investigation may be assessed against any 22 debt collector on the basis of actual costs incurred. Assessed 23 expenses may include, but are not limited to, expenses for 24 interpreters; expenses for communications; expenses for legal 25 representation; expenses for economic, legal, or other 26 research, analysis, and testimony; and fees and expenses for 27 witnesses. The failure to reimburse the office for its 28 reasonable and necessary costs is a reason to deny a 29 registrant's application or to revoke the prior approval of an 30 application. 31 559.5473 Injunction to restrain violations; 13 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 receivers.-- 2 (1) The office may bring an action on behalf of the 3 state to enjoin any person who has violated, or is about to 4 violate, this part, any rule of the commission, or any order 5 of the office issued under this part. 6 (2) In an injunctive proceeding, the court may issue a 7 subpoena requiring the attendance of any witness or a subpoena 8 duces tecum requiring the production of any book, account, 9 record, or other documents and materials relevant to the 10 pending case. 11 (3)(a) In addition to any procedure provided by law 12 for enforcing a temporary restraining order or a temporary or 13 permanent injunction, the court may, upon application of the 14 office, impound the property, assets, and business of the 15 registrant, including, but not limited to, the books, records, 16 documents, and papers of the registrant. The court may appoint 17 a receiver to administer the property. The receiver, when 18 appointed and qualified, has the powers and duties that are 19 conferred upon the receiver by the court. 20 (b) After appointing a receiver, the court may issue 21 an order staying all pending suits and enjoining any further 22 litigation affecting the receiver's custody or possession of 23 the property, assets, and business and the court, with the 24 consent of the chief judge of the circuit, may require that 25 all suits be assigned to the circuit judge who appointed the 26 receiver. 27 559.5474 Cease and desist orders; refund orders.-- 28 (1) The office may issue and serve upon a person an 29 order to cease and desist and to take corrective action 30 whenever the office has reason to believe that a person is 31 violating, has violated, or is about to violate this part, any 14 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 rule or order of the office issued under this part, or any 2 written agreement between the commercial collection agency and 3 the office. Procedural matters relating to the issuance and 4 enforcement of a cease and desist order are governed by 5 chapter 120. 6 (2) The office may seek an order of restitution from a 7 court of competent jurisdiction for collected funds due to 8 creditors or any sum collected from a debtor without valid 9 proof of debt. 10 559.5475 Evidence; examiner or investigator 11 worksheets, investigative reports, other related 12 documents.--An official written report, sworn complaint, 13 worksheet, or other related paper, or a certified copy 14 thereof, compiled, prepared, drafted, or otherwise made by the 15 financial examiner or investigator is admissible into evidence 16 if the financial examiner or investigator is available for 17 cross examination, authenticates the worksheet, and testifies 18 that the report, worksheet, or related document was prepared 19 as a result of an investigation of the books and records of a 20 registrant or other person conducted under the authority of 21 this part. 22 559.5476 Books, accounts, and records; maintenance; 23 investigations by the office.-- 24 (1) Each registrant shall maintain, at its principal 25 place of business designated on its registration, all books, 26 accounts, records, and documents necessary to determine the 27 registrant's compliance with this part. 28 (2) The office may authorize maintenance of records at 29 a location other than a principal place of business. The 30 office may require books, accounts, and records to be produced 31 and available at a reasonable and convenient location in this 15 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 state. 2 (3) All books, accounts, records, documents, and 3 receipts for payments to a registrant by a debtor, and 4 payments made to a creditor by a registrant, shall be 5 preserved and kept available for investigation by the office 6 for 3 years after the date of original entry. The commission 7 shall adopt requirements by rule for maintaining the books, 8 accounts, records, and documents retained by the registrant 9 and for destroying the records. 10 (4) The commission shall designate by rule the minimum 11 information that must be contained in the registrant's books, 12 accounts, records, and documents to enable the office to 13 determine a registrant's compliance with this part. 14 559.5477 Administrative remedies.-- 15 (1) The office may revoke or suspend the registration 16 of a registrant under this part who: 17 (a) Has been found guilty of, regardless of 18 adjudication, or has entered a plea of nolo contendere or 19 guilty to, any crime involving fraud, dishonest dealing, or 20 moral turpitude; 21 (b) Has had a final judgment entered against the 22 person a civil action upon the grounds of fraud, embezzlement, 23 misrepresentation, or deceit; 24 (c) Has had any business, professional, or 25 occupational license or registration suspended, revoked, or 26 otherwise acted against in any jurisdiction; 27 (d) Fails to maintain the surety bond required 28 pursuant to s. 559.546; 29 (e) Fails to maintain books and records as required by 30 s. 559.5476; 31 (f) Violates any provision of this part, any rule or 16 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 order adopted pursuant to this part, or any written agreement 2 entered into with the office; 3 (g) Paid for a registration with a check or electronic 4 transmission of funds which failed to clear the registrant's 5 financial institution; 6 (h) Falsified or willfully omitted any material 7 information asked for in any application, document, or record 8 required to be submitted under this part or the rules of the 9 commission; 10 (i) Made a material false statement of fact in an 11 application for registration or in response to any request or 12 investigation by the office; or 13 (j) Has a person who directly or indirectly controls 14 the applicant as defined in s. 559.545(4) that is subject to 15 an action, or commits an act, specified by paragraph (a), 16 paragraph (b), paragraph (c), paragraph (f), paragraph (h), or 17 paragraph (i). 18 (2) A registrant may request termination of its 19 registration by delivering written notice of its proposed 20 termination to the office. However, the delivery of the 21 termination notice does not affect any civil or criminal 22 liability of the registrant or the authority of the office to 23 enforce this part. 24 (3) The office may deny a request to terminate a 25 registration or to withdraw an application for registration if 26 the office believes that the registrant has committed an act 27 that would be grounds for denial, suspension, or revocation 28 under this part. 29 (4) Final action by the office to revoke or suspend 30 the registration of a registrant is subject to review 31 according to chapter 120 in the same manner as revocation of a 17 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 license. 2 (5) The office may impose an administrative fine for a 3 violation of this section or s. 559.545, s. 559.546, or s. 4 559.5476 against an offending registrant as an administrative 5 sanction as follows: 6 (a) For any nonwillful violation, the office may 7 impose a fine of up to $1,000 per violation. In no event shall 8 such fine exceed the aggregate amount of $10,000 for all 9 nonwillful violations arising out of the same action; or 10 (b) For any willful violation, the office may impose a 11 fine of up to $2,500 per violation. In no event shall such 12 fine exceed the aggregate amount of $100,000 for all willful 13 violations arising out the same action. 14 15 Final action by the office to impose an administrative fine is 16 subject to review in accordance with ss. 120.569 and 120.57. 17 (6) Notwithstanding any other provision of this 18 section, the office may impose a fine not to exceed $1,000 per 19 day for each day that a person violates the code by engaging 20 in the business of a commercial collection agency without 21 being registered. 22 (7) Any administrative fine imposed under this part is 23 payable to the office. The office shall maintain an 24 appropriate record and deposit the fine into the Regulatory 25 Trust Fund of the office. 26 (8) An administrative action by the office to impose 27 revocation, suspension, or a fine must be brought within 5 28 years after the date of the last violation upon which the 29 action is founded. 30 (9) The remedies under this part are in addition to 31 remedies otherwise available for the same conduct under state 18 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 or local law. 2 559.5479 Administrative guidelines.--In imposing any 3 administrative remedy or penalty provided for in the code, the 4 office shall take into account the appropriateness of the 5 penalty with respect to the size of the financial resources 6 and good faith of the person charged, the gravity of the 7 violation, the history of previous violations, and such other 8 matters as justice may require. 9 Section 6. Subsections (1), (7), and (8) of section 10 559.55, Florida Statutes, are amended, and subsections (10), 11 (11), and (12) are added to that section, to read: 12 559.55 Definitions.--The following terms shall, unless 13 the context otherwise indicates, have the following meanings 14 for the purpose of this part: 15 (1) "Debt" or "consumer debt" means: 16 (a) Any obligation or alleged obligation of a consumer 17 to pay money arising out of a transaction in which the money, 18 property, insurance, or services which are the subject of the 19 transaction are primarily for personal, family, or household 20 purposes, whether or not such obligation has been reduced to 21 judgment; or 22 (b) Any unsatisfied obligation for the payment of 23 money arising out of a legal order for child support. 24 (7) "Consumer collection agency" means any debt 25 collector or business entity engaged in the business of 26 soliciting, purchasing, or collecting consumer debts in 27 default for collection or of collecting consumer debts, which 28 debt collector or business is not expressly exempted as set 29 forth in s. 559.553(1)(4). 30 (8) "Out-of-state consumer debt collector" means any 31 person whose business activities in this state involve both 19 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 collecting or attempting to collect consumer debt from debtors 2 located in this state by means of interstate communication 3 originating from outside this state. The term "out-of-state 4 consumer debt collector" does not include a person who 5 solicits and soliciting consumer debt accounts for collection 6 from creditors who have a business presence in this state. For 7 purposes of this subsection, a creditor has a business 8 presence in this state if either the creditor or an affiliate 9 or subsidiary of the creditor has an office in this state. 10 (10) "Credit grantor" means any person who offers or 11 extends credit creating a debt or to whom a debt is owed, but 12 such term does not include any person to the extent that 13 person receives an assignment or transfer of a debt in default 14 solely for the purpose of facilitating collection of such debt 15 for another. 16 (11) "Federal Trade Commission Act" means the federal 17 legislation regulating unfair or deceptive practices or acts, 18 as set forth in 15 U.S.C. ss. 41 et seq. 19 (12) "Principal of a registrant or applicant" means 20 any owner of the applicant or registrant if a partnership or 21 sole proprietorship, the corporate officers, the corporate 22 directors other than directors of a not-for-profit corporation 23 organized under chapter 617, or the Florida resident agent if 24 a corporation is the applicant or registrant. 25 Section 7. Section 559.552, Florida Statutes, is 26 amended to read: 27 559.552 Relationship of state and federal law.-- 28 (1) Any violation of the federal Fair Debt Collection 29 Practices Act constitutes a prohibited practice under s. 30 559.72. This subsection shall not be construed to create any 31 additional civil cause of action as provided under s. 20 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 559.77(2). 2 (2) Nothing in This part does not shall be construed 3 to limit or restrict the continued applicability of the 4 federal Fair Debt Collection Practices Act to consumer 5 collection practices in this state. This part is in addition 6 to the requirements and regulations of the federal act. In 7 construing this part, due consideration and great weight shall 8 be given to interpretations of the Federal Trade Commission 9 Act and the Fair Debt Collection Practices Act by the Federal 10 Trade Commission. In the event of any inconsistency between 11 any provision of this part and any provision of the federal 12 act, the provision that which is more protective of the 13 consumer or debtor shall prevail unless the more protective 14 interpretation conflicts with the case law opinions of the 15 state and federal courts of this state or the opinions of the 16 Eleventh Circuit Court of Appeals. 17 Section 8. Section 559.553, Florida Statutes, is 18 amended to read: 19 559.553 Registration of consumer collection agencies 20 required; Exemptions.--The registration requirements of s. 21 559.555 22 (1) After January 1, 1994, no person shall engage in 23 business in this state as a consumer collection agency or 24 continue to do business in this state as a consumer collection 25 agency without first registering in accordance with this part, 26 and thereafter maintaining a valid registration. 27 (2) Each consumer collection agency doing business in 28 this state shall register with the office and renew such 29 registration annually as set forth in s. 559.555. 30 (3) A prospective registrant shall be entitled to be 31 registered when registration information is complete on its 21 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 face and the applicable registration fee has been paid; 2 however, the office may reject a registration submitted by a 3 prospective registrant if the registrant or any principal of 4 the registrant previously has held any professional license or 5 state registration which was the subject of any suspension or 6 revocation which has not been explained by the prospective 7 registrant to the satisfaction of the office either in the 8 registration information submitted initially or upon the 9 subsequent written request of the office. In the event that an 10 attempted registration is rejected by the office the 11 prospective registrant shall be informed of the basis for 12 rejection. 13 (4) This section shall not apply to: 14 (1)(a) A Any credit grantor original creditor. 15 (2)(b) A Any member of The Florida Bar, unless the 16 person is primarily engaged in the collection of consumer 17 debts. "Primarily engaged in the collection of consumer debts" 18 means that more than one-half of the person's income arises 19 from the business of soliciting consumer claims for collection 20 or collecting consumer claims. 21 (3)(c) A Any financial institution authorized to do 22 business in this state or and any wholly owned subsidiary or 23 an and affiliate thereof. 24 (4)(d) A Any licensed real estate broker. 25 (5)(e) An Any insurance company authorized to do 26 business in this state. 27 (6)(f) A Any consumer finance company or and any 28 wholly owned subsidiary or an and affiliate thereof. 29 (7)(g) A Any person licensed pursuant to chapter 520. 30 (8)(h) An Any out-of-state consumer debt collector who 31 does not solicit consumer debt accounts for collection from 22 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 credit grantors who have a business presence in this state. 2 (9)(i) An Any FDIC-insured institution or subsidiary 3 or affiliate thereof. 4 (5) Any out-of-state consumer debt collector as 5 defined in s. 559.55(8) who is not exempt from registration by 6 application of subsection (4) and who fails to register in 7 accordance with this part shall be subject to an enforcement 8 action by the state as specified in s. 559.565. 9 Section 9. Section 559.555, Florida Statutes, is 10 amended to read: 11 (Substantial rewording of section. See 12 s. 559.555, Florida Statutes, for current text.) 13 559.555 Registration of consumer collection agencies; 14 procedure.-- 15 (1) A person may not engage in business in this state 16 as a consumer collection agency, as defined in this part, or 17 continue to do business in this state as a consumer collection 18 agency unless the person is registered with the office 19 according to this part and thereafter maintains the 20 registration. 21 (2) A registration is not valid for any consumer 22 collection agency transacting business at any place other than 23 that designated in the registration unless the office is first 24 notified in advance of any change of location. 25 (3) A person who applies for registration as a 26 consumer collection agency in compliance with this part must 27 do so on forms adopted by the commission and furnished by the 28 office. The commission may establish by rule procedures for 29 depositing fees and filing documents by electronic means 30 provided such procedures provide the office with the 31 information required by this section. The commission or office 23 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 may require each applicant for a consumer collection agency 2 registration to provide: 3 (a) A nonrefundable application fee in the amount of 4 $650. All amounts collected shall be deposited to the credit 5 of the Regulatory Trust Fund of the office. 6 (b) The name of the applicant, any other names under 7 which the applicant conducts business, and the address of the 8 applicant's principal place of business and each office in 9 this state. 10 (c) The applicant's form and place of organization 11 and, if the applicant is a corporation, a copy of the articles 12 of incorporation and amendments to such articles, if a 13 partnership, a copy of the partnership agreement, or, if 14 limited liability company, a copy of the articles of 15 organization. 16 (d) Documents demonstrating that the bonding 17 requirements specified in s. 559.556 have been satisfied. 18 (e) Information and documentation necessary to make a 19 determination of the applicant's eligibility for registration. 20 (4) The applicant shall also provide information as 21 the office may require about any partner, officer, or director 22 of the applicant, any person having the same or substantially 23 similar status or performing substantially similar functions, 24 or any person directly or indirectly controlling the 25 applicant. For purposes of this subsection, the term "directly 26 or indirectly controlling the applicant" means possessing the 27 power to direct or to cause the direction of the management or 28 policies of a company, whether through ownership of stock or 29 securities, by contract, or otherwise. Any individual or 30 company that directly or indirectly has the right to vote 25 31 percent or more of the voting stock or securities of a company 24 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 or is entitled to 25 percent or more of its profits is 2 presumed to control that company. The office may require 3 information about any such applicant or person, including: 4 (a) His or her full name, current address, current 5 telephone number, date of birth, social security number, or 6 federal identification number of any corporate owner. 7 (b) His or her previous 10-year educational or 8 employment history. 9 (c) Any adverse decision, finding, injunction, 10 suspension, prohibition, revocation, denial, or judgment by 11 any court of competent jurisdiction or an administrative order 12 by an administrative law judge, by any state of federal 13 agency, or by any business, professional, or occupational 14 association involving a violation of any law, rule, or 15 regulation relating to business or professional licensing. 16 (d) His or her commission of any acts which would be 17 grounds for denial of an application under subsection (10). 18 (5) An initial application is deemed received for 19 purposes of s. 120.60 upon receipt of the completed 20 application form prescribed by commission rule, the 21 nonrefundable application fee of $650, and any other fee 22 prescribed by law. 23 (6) Upon the filing of an application for registration 24 and payment of all applicable fees, the office shall 25 investigate the applicant. If the office determines that 26 registration should be granted, it shall register the 27 applicant for a period not to exceed 1 year. 28 (7) The registration of each consumer collection 29 agency shall expire on December 31 of the year in which the 30 registration became effective unless the registrant has 31 renewed its registration on or before that date. A 25 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 registration may be renewed as the commission may require by 2 rule, together with payment of the $275 nonrefundable renewal 3 fee and the payment of any amount lawfully due and owing to 4 the office pursuant to any order of the office or pursuant to 5 any agreement with the office. A consumer collection agency 6 that has not renewed its registration by the time the 7 registration period expires may request reactivation of its 8 registration. The registrant must file its request with the 9 office on or before January 31 of the year following the year 10 of expiration. The request must contain any information the 11 office requires, together with the registration fee required 12 in this section and a nonrefundable reactivation fee in the 13 amount of $250. Any reactivation of registration granted by 14 the office during the month of January is deemed effective 15 retroactive to January 1 of that year. Any registrant that 16 engages in business as a consumer collection agency after its 17 registration has expired violates subsection (1), punishable 18 as provided by ss. 559.785(1) and 559.730(6). 19 (8) If the information contained in any application or 20 any amendment to the application has changed, the registrant 21 shall file an amendment on the forms prescribed by the 22 commission correcting such information within 30 days after 23 the change. 24 (9) A registration under this part is not transferable 25 or assignable unless accomplished pursuant to this subsection. 26 (a) Changes in registration occasioned by changes in 27 personnel of a partnership or in the principals, copartners, 28 officers, or directors of any registrant or by changes of any 29 material fact shall be reported by written amendment in such 30 form and at such time as the commission may specify by rule. 31 In any case in which a person or a group of persons, directly 26 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 or indirectly or acting by or through one or more persons, 2 proposes to purchase or acquire a controlling interest in a 3 registrant, such person or group shall submit an initial 4 application for registration as a consumer collection agency 5 prior to such purchase or acquisition at such time and in such 6 form as the commission may prescribe by rule. 7 (b) The commission shall adopt rules providing for 8 waiver of the application required by this subsection where 9 control of a registrant is to be acquired by another 10 registrant under this chapter or where the application is 11 otherwise unnecessary in the public interest. 12 (10) The office may deny registration if the 13 applicant, any principal of the applicant, or any person 14 having control of the applicant: 15 (a) Has committed any violation of s. 559.72; 16 (b) Is the subject of a pending criminal prosecution 17 or governmental enforcement action, in any jurisdiction, until 18 the conclusion of such criminal prosecution or enforcement 19 action; 20 (c) Is currently subject to a pending enforcement 21 action by any federal authority for violations of the Fair 22 Debt Collection Practices Act or the Federal Trade Commission 23 Act; 24 (d) Has been found guilty of, regardless of 25 adjudication, or has entered a plea of nolo contendere or 26 guilty to, any offense involving fraud, dishonest dealing, or 27 moral turpitude; 28 (e) Has been found guilty of, regardless of 29 adjudication, or has entered a plea of nolo contendere or 30 guilty to, any felony; 31 (f) Has had entered against him or her, or any 27 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 business for which he or she was directly or indirectly a 2 controlling person in the business or controlled the business, 3 an injunction, a temporary restraining order, or a final 4 judgment or order, including a stipulated judgment or order, 5 an assurance of voluntary compliance, or any similar document, 6 in any civil or administrative action involving racketeering, 7 fraud, theft, embezzlement, fraudulent conversion, or 8 misappropriation of property or the use of any untrue, 9 deceptive, or misleading representation in an attempt to sell 10 or dispose of real or personal property or the use of any 11 unfair, unlawful, or deceptive trade practice, whether or not 12 there is any litigation pending against the applicant; 13 (g) Is subject to or was directly or indirectly a 14 controlling person in the business, or controlled the 15 business, with any company that is, or ever has been, subject 16 to any injunction, temporary restraining order, including a 17 stipulated judgment or order, an assurance of voluntary 18 compliance or any similar document, or any restrictive court 19 order relating to business activity as the result of any 20 action brought by a governmental agency, including any action 21 affecting any license to do business or practice an occupation 22 or trade; 23 (h) Falsified or willfully omitted any material 24 information asked for in any application, document, or record 25 required to be submitted under this part or the rules of the 26 commission; 27 (i) Made a material false statement of fact in an 28 application for registration or in response to any request or 29 investigation by the office, the Department of Legal Affairs, 30 or the state attorney; or 31 (j) Has been the subject of any adverse decision, 28 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 finding, injunction, suspension, prohibition, revocation, 2 denial, or judgment by any court of competent jurisdiction or 3 an administrative order by an administrative law judge, by any 4 state or federal agency, or by any business, professional, or 5 occupational association involving a violation of any law, 6 rule, or regulation relating to business or professional 7 licensing. 8 Section 10. Section 559.556, Florida Statutes, is 9 created to read: 10 559.556 Surety bond.-- 11 (1) Before the office may issue a registration, the 12 applicant must provide to the office a corporate surety bond 13 issued by a bonding company or insurance company authorized to 14 do business in this state. 15 (2) The corporate surety bond shall be in the amount 16 of $25,000, paid for and issued for the benefit of any credit 17 grantor against the registrant to secure the faithful 18 performance of the obligations of the registrant with respect 19 to the receipt, handling, and payment of funds collected by 20 the registrant. 21 (3) If multiple claims are filed against the surety on 22 any bond in excess of the amount of the bond, the surety may 23 pay the full amount of the bond to the office and is not 24 further liable under the bond. The office shall hold the funds 25 for distribution to claimants and pay to each claimant the pro 26 rata share of each valid claim made against the funds within 6 27 months after the date of the filing of the first claim against 28 the surety. 29 (4) A corporate surety bond filed with the office for 30 purposes of compliance with this section may not be canceled 31 by the registrant or the corporate surety except upon written 29 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 notice to the office by registered or certified mail with 2 return receipt requested. A cancellation shall not take effect 3 less than 30 days after receipt by the office of such written 4 notice. 5 (5) The corporate surety shall, within 10 days after 6 the surety pays any claim to a claimant, give written notice 7 to the office by registered or certified mail of such payment 8 with details sufficient to identify the claimant and the claim 9 or judgment so paid. 10 (6) Whenever the principal sum of such bond is reduced 11 by one or more recoveries or payments, the registrant shall 12 furnish a new or additional bond so that the total or 13 aggregate principal sum of such bonds equals the sum required 14 by this section. Alternatively, a registrant may furnish an 15 endorsement executed by the corporate surety reinstating the 16 bond to the required principal sum. 17 Section 11. Section 559.72, Florida Statutes, is 18 amended to read: 19 559.72 Prohibited practices generally.-- 20 (1) In collecting consumer debts, a consumer 21 collection agency may not no person shall: 22 (a)(1) Simulate in any manner a law enforcement 23 officer or a representative of any governmental agency; 24 (b)(2) Use or threaten force, or violence, or any 25 other means to harm the physical person, property, or 26 reputation of any person; 27 (c)(3) Tell a debtor who disputes a consumer debt that 28 she or he or any person employing her or him will disclose to 29 another, orally or in writing, directly or indirectly, 30 information affecting the debtor's reputation for credit 31 worthiness without also informing the debtor that the 30 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 existence of the dispute will also be disclosed as required by 2 paragraph (f) subsection (6); 3 (d)(4) Communicate or threaten to communicate with a 4 debtor's employer prior to obtaining final judgment against 5 the debtor, unless the debtor gives her or his permission in 6 writing to contact her or his employer or acknowledges in 7 writing the existence of the debt after the debt has been 8 placed for collection, but this shall not prohibit a person 9 from telling the debtor that her or his employer will be 10 contacted if a final judgment is obtained; 11 (e)(5) Disclose to a person other than the debtor or 12 her or his family information affecting the debtor's 13 reputation, whether or not for credit worthiness, with 14 knowledge or reason to know that the other person does not 15 have a legitimate business need for the information or that 16 the information is false; 17 (f)(6) Disclose information concerning the existence 18 of a debt known to be reasonably disputed by the debtor 19 without disclosing that fact. If a disclosure is made prior to 20 such reasonable dispute having been asserted and written 21 notice is received from the debtor that any part of the debt 22 is disputed and if such dispute is reasonable, the person who 23 made the original disclosure shall reveal upon the request of 24 the debtor within 30 days the details of the dispute to each 25 person to whom disclosure of the debt without notice of the 26 dispute was made within the preceding 90 days; 27 (g)(7) Willfully communicate with the debtor or any 28 member of her or his family with such frequency as can 29 reasonably be expected to harass the debtor or her or his 30 family, or willfully engage in other conduct which can 31 reasonably be expected to abuse or harass the debtor or any 31 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 member of her or his family; 2 (h)(8) Use profane, obscene, vulgar, or willfully 3 abusive language in communicating with the debtor or any 4 member of her or his family; 5 (i)(9) Claim, attempt, or threaten to enforce a debt 6 when such person knows that the debt is not legitimate or 7 assert the existence of some other legal right when such 8 person knows that the right does not exist; 9 (j)(10) Use a communication which simulates in any 10 manner legal or judicial process or which gives the appearance 11 of being authorized, issued or approved by a government, 12 governmental agency, or attorney at law, when it is not; 13 (k)(11) Communicate with a debtor under the guise of 14 an attorney by using the stationery of an attorney or forms or 15 instruments which only attorneys are authorized to prepare; 16 (l)(12) Orally communicate with a debtor in such a 17 manner as to give the false impression or appearance that such 18 person is or is associated with an attorney; 19 (m)(13) Advertise or threaten to advertise for sale 20 any debt as a means to enforce payment except under court 21 order or when acting as an assignee for the benefit of a 22 creditor; 23 (n)(14) Publish or post, threaten to publish or post, 24 or cause to be published or posted before the general public 25 individual names or any list of names of debtors, commonly 26 known as a deadbeat list, for the purpose of enforcing or 27 attempting to enforce collection of consumer debts; 28 (o)(15) Refuse to provide adequate identification of 29 herself or himself or her or his employer or other entity whom 30 she or he represents when requested to do so by a debtor from 31 whom she or he is collecting or attempting to collect a 32 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 consumer debt; 2 (p)(16) Mail any communication to a debtor in an 3 envelope or postcard with words typed, written, or printed on 4 the outside of the envelope or postcard indicating that the 5 purpose of the communication is to collect a debt or is 6 otherwise calculated to embarrass the debtor. An example of 7 this would be an envelope addressed to "Deadbeat, Jane Doe" or 8 "Deadbeat, John Doe"; 9 (q)(17) Communicate with the debtor between the hours 10 of 9 p.m. and 8 a.m. in the debtor's time zone, at any unusual 11 time or place, or at a time or place that is known or should 12 be known to be inconvenient for the debtor without the prior 13 consent of the debtor; 14 (r)(18) Communicate with a debtor if the person knows 15 that the debtor is represented by an attorney with respect to 16 such debt and has knowledge of, or can readily ascertain, such 17 attorney's name and address, unless the debtor's attorney 18 fails to respond within a reasonable period of time to a 19 communication from the person, unless the debtor's attorney 20 consents to a direct communication with the debtor, or unless 21 the debtor initiates the communication; or 22 (s)(19) Cause charges to be made to any debtor for 23 communications by concealment of the true purpose of the 24 communication, including collect telephone calls and telegram 25 fees. 26 (2) Any debt collector communicating with any person 27 other than the consumer for the purpose of acquiring location 28 information about the consumer: 29 (a) Shall identify himself or herself, state that he 30 or she is confirming or correcting location information 31 concerning the consumer, and, only if expressly requested, 33 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 identify his or her employer. 2 (b) May not: 3 1. State that such consumer owes a debt; 4 2. Communicate with any such person more than once 5 unless requested to do so by such person or unless the debt 6 collector reasonably believes that the earlier response of 7 such person is erroneous or incomplete and that such person 8 now has correct or complete location information; or 9 3. Communicate by postcard. 10 (3) Without prior consent of the consumer given 11 directly to the debt collector or express permission of a 12 court of competent jurisdiction, a debt collector may not 13 communicate with a consumer in connection with the collection 14 of any debt at the consumer's place of employment if the debt 15 collector knows or has reason to know that the consumer's 16 employer prohibits the consumer from receiving such 17 communication. 18 (4) Except as provided in subsection (2), without the 19 prior consent of the consumer given directly to the debt 20 collector, the express permission of a court of competent 21 jurisdiction, or as reasonably necessary to effectuate a 22 postjudgment remedy, a debt collector may not communicate, in 23 connection with the collection of any debt, with any person 24 other than a consumer, the consumer's attorney, a consumer 25 reporting agency if otherwise permitted by law, the creditor, 26 the creditor's attorney, or the debt collector's attorney. 27 (5) If a consumer notifies a debt collector in writing 28 that the consumer refuses to pay a debt or that the consumer 29 wishes the debt collector to cease further communication with 30 the consumer, the debt collector shall not communicate further 31 with the consumer with respect to such debt, except to: 34 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 (a) Advise the consumer that the debt collector's 2 further efforts are being terminated; 3 (b) Notify the consumer that the debt collector or 4 creditor may invoke specified remedies which are ordinarily 5 invoked by such debt collector or creditor; or 6 (c) Where applicable, notify the consumer that the 7 debt collector or creditor intends to invoke a specified 8 remedy. 9 10 If such notice from the consumer is made by mail, notification 11 shall be complete upon receipt. For the purpose of this 12 subsection, the term "consumer" includes the consumer's 13 spouse, parent if the consumer is a minor, guardian, executor, 14 or administrator. 15 (6) A debt collector may not use any false, deceptive, 16 or misleading representation or means in connection with the 17 collection of any debt. Without limiting the general 18 application of such prohibition, the following conduct is a 19 violation of this subsection: 20 (a) The false representation of: 21 1. The character, amount, or legal status of any debt; 22 or 23 2. Any services rendered or compensation which may be 24 lawfully received by any debt collector for the collection of 25 a debt. 26 (b) The representation or implication that nonpayment 27 of any debt will result in the arrest or imprisonment of any 28 person or the seizure, garnishment, attachment, or sale of any 29 property or wages of any person unless such action is lawful 30 and the debt collector or creditor intends to take such 31 action. 35 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 (c) The false representation or implication that a 2 sale, referral, or other transfer of any interest in a debt 3 shall cause the consumer to: 4 1. Lose any claim or defense to payment of the debt; 5 or 6 2. Become subject to any practice prohibited by this 7 subsection. 8 (d) The false representation or implication that the 9 consumer committed any crime or other conduct in order to 10 disgrace the consumer. 11 (e) The use of any false representation or deceptive 12 means to collect or attempt to collect any debt or to obtain 13 information concerning a consumer. 14 (f) The failure to disclose in the initial 15 communication that the debt collector is attempting to collect 16 a debt and that any information obtained will be used for that 17 purpose, and the failure to disclose in subsequent 18 communications that the communication is from a debt 19 collector, except this paragraph does not apply to a formal 20 pleading made in connection with a legal action. 21 (g) The false representation or implication that 22 accounts have been turned over to innocent purchasers for 23 value. 24 (h) The use of any business, company, or organization 25 name other than the true name of the debt collector's 26 business, company, or organization. 27 (i) The false representation or implication that 28 documents are not legal process forms or do not require action 29 by the consumer. 30 (j) The false representation or implication that a 31 debt collector operates or is employed by a consumer reporting 36 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 agency. 2 (7) A debt collector may not use unfair or 3 unconscionable means to collect or attempt to collect any 4 debt. Without limiting the general application of such 5 prohibition, the following conduct is a violation of this 6 section: 7 (a) Collecting any amount, including any interest, 8 fee, charge, or expense incidental to the principal 9 obligation, unless such amount is expressly authorized by the 10 agreement creating the debt or permitted by law. 11 (b) The acceptance by a debt collector from any person 12 of a check or other payment instrument postdated by more than 13 5 days unless such person is notified in writing of the debt 14 collector's intent to deposit such check or instrument not 15 more than 10 nor less than 3 business days prior to such 16 deposit. 17 (c) The solicitation by a debt collector of any 18 postdated check or postdated payment instrument for the 19 purpose of threatening or instituting criminal prosecution. 20 (d) Depositing or threatening to deposit any postdated 21 check or other postdated payment instrument prior to the date 22 on such check or instrument. 23 (e) Taking or threatening to take any nonjudicial 24 action to effect dispossession or disablement of property if: 25 1. There is no present right to possession of the 26 property claimed as collateral through an enforceable security 27 interest; 28 2. There is no present intention to take possession of 29 the property; or 30 3. The property is exempt by law from such 31 dispossession or disablement. 37 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 (f) Communicating with a consumer regarding a debt by 2 post card. 3 (8) Within 5 days after the initial communication with 4 a consumer in connection with the collection of any debt, a 5 debt collector shall, unless the following information is 6 contained in the initial communication or the consumer has 7 paid the debt, send the consumer a written notice containing: 8 (a) The amount of the debt. 9 (b) The name of the creditor to whom the debt is owed. 10 (c) A statement that unless the consumer, within 30 11 days after receipt of the notice, disputes the validity of the 12 debt, or any portion thereof, the debt will be assumed to be 13 valid by the debt collector. 14 (d) A statement that if the consumer notifies the debt 15 collector in writing within the 30-day period that the debt, 16 or any portion thereof, is disputed, the debt collector will 17 obtain verification of the debt or a copy of the judgment 18 against the consumer and a copy of such verification or 19 judgment will be mailed to the consumer by the debt collector. 20 (e) A statement that, upon the consumer's written 21 request within the 30-day period, the debt collector will 22 provide the consumer with the name and address of the original 23 creditor, if different from the current creditor. 24 (9) If the consumer notifies the debt collector in 25 writing within the 30-day period described in subsection (9) 26 that the debt, or any portion of the debt, is disputed, or 27 that the consumer requests the name and address of the 28 original creditor, the debt collector shall cease collection 29 of the debt, or any disputed portion thereof, until the debt 30 collector obtains verification of the debt or any copy of a 31 judgment, or the name and address of the original creditor, 38 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 and a copy of such verification or judgment, or name and 2 address of the original creditor, is mailed to the consumer by 3 the debt collector. 4 (10) The failure of a consumer to dispute the validity 5 of a debt under this section may not be construed by any court 6 as an admission of liability by the consumer. 7 (11) If any consumer owes multiple debts and makes any 8 single payment to any debt collector with respect to such 9 debts, such debt collector may not apply such payment to any 10 debt which is disputed by the consumer and, where applicable, 11 shall apply such payment in accordance with the consumer's 12 directions. 13 (12) Any debt collector who brings any legal action on 14 a debt against any consumer shall: 15 (a) In the case of an action to enforce an interest in 16 real property securing the consumer's obligation, bring such 17 action only in a judicial district or similar legal entity in 18 which such real property is located; or 19 (b) In the case of an action not described in 20 paragraph (a), bring such action only in the judicial district 21 or similar legal entity: 22 1. In which such consumer signed the contract sued 23 upon; or 24 2. In which such consumer resides at the commencement 25 of the action. 26 (c) Nothing in this subsection shall be construed to 27 authorize the bringing of legal actions by debt collectors. 28 (13) It is unlawful to design, compile, and furnish 29 any form knowing such form would be used to create the false 30 belief in a consumer that a person other than the creditor of 31 such consumer is participating in the collection of or in an 39 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 attempt to collect a debt such consumer allegedly owes such 2 creditor, when in fact such person is not participating. 3 (14) Nothing in this section shall be construed to 4 create a new civil cause of action under subsections (2)-(13). 5 Section 12. Section 559.725, Florida Statutes, is 6 amended to read: 7 (Substantial rewording of section. See 8 s. 559.725, Florida Statutes, for current text.) 9 559.725 Consumer complaints.-- 10 (1) Any person having reason to believe that this part 11 has been violated may file a written complaint with the office 12 or the Division of Consumer Services of the Department of 13 Financial Services setting forth the details of the alleged 14 violation. 15 (2) Any government office or agency receiving a 16 complaint under this section shall advise any other government 17 office or agency with apparent jurisdiction, including the 18 office, the appropriate state attorney, or the Attorney 19 General in the case of an out-of-state consumer debt 20 collector, of any determination by that agency of a violation, 21 or possible violation, of the requirements of this part by any 22 consumer collection agency, whether or not registered or 23 exempt from registration as required by this part. 24 Section 13. Sections 559.726, 559.7262, 559.7263, 25 559.7264, and 559.7265, Florida Statutes, are created to read: 26 559.726 Powers and duties of the Office of Financial 27 Regulation.-- 28 (1) Compliance with this part shall be enforced by the 29 office, except when enforcement is specifically assigned to 30 another agency. 31 (2) The office may conduct an investigation of any 40 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 person, within or outside this state, which the office 2 believes is necessary in order to determine whether a person 3 has violated this chapter or the rules adopted by the 4 commission. The office may commence any such investigation 5 when the office receives information from a complaint, the 6 public media, an informant, or other source that informs the 7 office that a violation of this chapter has occurred or may 8 occur. 9 (3) The commission may adopt rules under ss. 10 120.536(1) and 120.54 to implement and administer this part. 11 (4) The commission may adopt a rule to: 12 (a) Require electronic submission of any form, 13 document, or fee required by this part, provided the rule 14 reasonably accommodates a person with a technological or 15 financial hardship. 16 (b) Set forth the criteria and procedures for 17 obtaining an exemption due to a technological or financial 18 hardship. 19 (c) Accept certification of compliance with the 20 requirements of this part in lieu of requiring submission of 21 specified documents. 22 (5) All fees, charges, and fines collected by the 23 office under this part shall be deposited to the credit of the 24 Regulatory Trust Fund of the office. 25 (6) The office may: 26 (a) Issue, revoke, quash, or modify and serve 27 subpoenas to compel the attendance of witnesses and subpoenas 28 duces tecum to compel the production of all books, accounts, 29 records, and other documents and materials relevant to an 30 investigation. The office may exercise these powers even if 31 the subject of the investigation is exempt from registration. 41 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 (b) Administer oaths and affirmations to any person. 2 (c) Take, or cause to be taken, testimony and 3 depositions. 4 (7)(a) In the event of noncompliance with a subpoena 5 or subpoena duces tecum the office issued or caused to be 6 issued, the office may petition a court of competent 7 jurisdiction in the county in which the person subpoenaed 8 resides or has her, his, or its principal place of business 9 for an order requiring the person to appear and testify and to 10 produce the books, accounts, records, and other documents that 11 are specified in the subpoena duces tecum. 12 (b) A copy of the petition shall be served upon the 13 person subpoenaed by any person authorized by this section to 14 serve subpoenas, who shall make and file with the court an 15 affidavit showing the time, place, and date of service. 16 (c) At a hearing on the petition to enforce compliance 17 with a subpoena, the person subpoenaed, or any person whose 18 interest will be substantially affected by the investigation 19 or subpoena, may appear and object to the subpoena and to the 20 granting of the petition. The court may make any order that 21 justice requires in order to protect a party or other person 22 and her or his personal and property rights, including, but 23 not limited to, protection from annoyance, embarrassment, 24 oppression, undue burden, or expense. 25 (d) Failure to comply with an order granting, in whole 26 or in part, a petition to enforce a subpoena is a contempt of 27 the court. 28 (8) Witnesses are entitled to the same fees and 29 mileage to which they would be entitled by law for attending 30 as witnesses in circuit court, except fees or mileage may not 31 be allowed for testimony of a person taken at the person's 42 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 principal office or residence. 2 (9) Reasonable and necessary costs incurred by the 3 office during an investigation may be assessed against any 4 debt collector on the basis of actual costs incurred. Assessed 5 expenses may include, but are not limited to, expenses for 6 interpreters; expenses for communications; expenses for legal 7 representation; expenses for economic, legal, or other 8 research; expenses for analysis and testimony; and fees and 9 expenses for witnesses. The failure to reimburse the office 10 for its reasonable and necessary costs is a reason to deny a 11 registrant's application or to revoke the prior approval of an 12 application. 13 559.7262 Injunction to restrain violations; 14 receivers.-- 15 (1) The office may bring an action on behalf of the 16 state to enjoin any person who has violated, or who is about 17 to violate, this part or any rule or order of the office 18 issued under this part. 19 (2) In an injunctive proceeding, the court may issue a 20 subpoena requiring the attendance of any witness or a subpoena 21 duces tecum requiring the production of any book, account, 22 record, or other documents and materials relevant to the 23 pending case. 24 (3)(a) In addition to any procedure provided by law 25 for enforcing a temporary restraining order or a temporary or 26 permanent injunction, the court may, upon application of the 27 office, impound the property, assets, and business of the 28 registrant, including, but not limited to, the books, records, 29 documents, and papers of the registrant. The court may appoint 30 a receiver to administer the property. The receiver, when 31 appointed and qualified, has the powers and duties that are 43 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 conferred by the court. 2 (b) After appointing the receiver, the court may issue 3 an order staying all pending suits and enjoining any further 4 litigation affecting the receiver's custody or possession of 5 the property, assets, and business, and the court, with the 6 consent of the chief judge of the circuit, may require that 7 all suits be assigned to the circuit court judge who appointed 8 the receiver. 9 559.7263 Cease and desist orders; refund orders.-- 10 (1) The office may issue and serve upon a person an 11 order to cease and desist and to take corrective action 12 whenever the office has reason to believe that the person is 13 violating, has violated, or is about to violate this part, any 14 rule or order of the office issued under this part, or any 15 written agreement between the person and the office. 16 Procedural matters relating to issuance and enforcement of 17 such a cease and desist order are governed by chapter 120. 18 (2) The office may seek an order of restitution from a 19 court of competent jurisdiction for collected funds due to 20 creditors or any sum collected from a debtor without valid 21 proof of debt. 22 559.7264 Evidence; examiner or investigator 23 worksheets, investigative reports, other related 24 documents.--An official written report, sworn complaint, 25 worksheet, or other related paper, or a duly certified copy 26 thereof, compiled, prepared, drafted, or otherwise made by the 27 financial examiner or investigator is admissible into evidence 28 if the financial examiner or investigator is available for 29 cross examination, authenticates the worksheet, and testifies 30 that the report, worksheet, or related document was prepared 31 as a result of an investigation of the books and records of a 44 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 registrant or other person conducted under the authority of 2 this part. 3 559.7265 Books, accounts, and records; maintenance; 4 examinations by the office.-- 5 (1) Each registrant shall maintain, at its principal 6 place of business designated on the registration, all books, 7 accounts, records, and documents necessary to determine the 8 registrant's compliance with this part. 9 (2) The office may authorize maintenance of records at 10 a location other than a principal place of business. The 11 office may require books, accounts, and records to be produced 12 and available at a reasonable and convenient location in this 13 state. 14 (3) All books, accounts, records, documents, and 15 receipts for payments to a registrant by a debtor, and 16 payments made to a creditor by a registrant, shall be 17 preserved and kept available for investigation by the 18 department for 3 years after the date of original entry. The 19 commission shall adopt requirements by rule for maintaining 20 the books, accounts, records, and documents retained by the 21 registrant and for destroying the records. 22 (4) The commission shall designate by rule the minimum 23 information that must be contained in the registrant's books, 24 accounts, records, and documents of a registrant to enable the 25 office to determine a registrant's compliance with this part. 26 Section 14. Section 559.730, Florida Statutes, is 27 amended to read: 28 (Substantial rewording of section. See 29 s. 559.730, Florida Statutes, for current text.) 30 559.730 Administrative remedies.-- 31 (1) The office may revoke or suspend the registration 45 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 of any registrant under this part who: 2 (a) Has been found guilty of, regardless of 3 adjudication, or has entered a plea of nolo contendere or 4 guilty to, any crime involving fraud, dishonest dealing, or 5 moral turpitude; 6 (b) Has had a final judgment entered against the 7 person in a civil action upon the grounds of fraud, 8 embezzlement, misrepresentation, or deceit; 9 (c) Has had any business, professional, or 10 occupational license or registration suspended, revoked, or 11 otherwise acted against in any jurisdiction; 12 (d) Fails to maintain the surety bond required 13 pursuant to s. 559.556; 14 (e) Fails to maintain books and records as required by 15 s. 559.7265; 16 (f) Violates any provision of this part, any rule or 17 order adopted pursuant to this part, or any written agreement 18 entered into with the office; 19 (g) Paid for a registration with a check or electronic 20 transmission of funds which failed to clear the registrant's 21 financial institution; 22 (h) Falsified or willfully omitted any material 23 information asked for in any application, document, or record 24 required to be submitted under this part or the rules of the 25 commission; 26 (i) Made a material false statement of fact in an 27 application for registration or in response to any request or 28 investigation by the office; or 29 (j) Employs a person, who directly or indirectly 30 controls the applicant as defined in s. 559.555(4), who is 31 subject to an action, or commits an act, contemplated by 46 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 paragraph (a), paragraph (b), paragraph (c), paragraph (f), 2 paragraph (h), or paragraph (i). 3 (2) A registrant may request termination of its 4 registration by delivering written notice of its proposed 5 termination to the office. However, the delivery of the 6 termination notice does not affect any civil or criminal 7 liability of the registrant or the authority of the office to 8 enforce this part. 9 (3) The office may deny a request to terminate a 10 registration or to withdraw an application for registration if 11 the office believes that the registrant has committed an act 12 that would be grounds for denial, suspension, or revocation 13 under this part. 14 (4) Final action by the office to revoke or suspend 15 the registration of a registrant is subject to review 16 according to chapter 120 in the same manner as revocation of a 17 license. 18 (5) The office may impose an administrative fine for a 19 violation of this section or s. 559.555, s. 559.556, 559.72, 20 or s. 559.7265 against an offending registrant or person as an 21 administrative sanction as follows: 22 (a) If the nonwillful violation constitutes a bona 23 fide error pursuant to s. 559.77(3), the office may issue a 24 written reprimand to the offending registrant and may require 25 the registrant implement additional policies and procedures to 26 avoid any future violations. For purposes of this section 27 only, the bona fide error defense shall only apply to a 28 violation of 559.72(1)(e),(f),(p,)(q), or (r), (3), (4), (5), 29 (7)(f), (8)(b), or (9). This subsection shall not apply if the 30 same nonwillful violation subject to the written reprimand 31 recurs within 2 years after the issuance of the written 47 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 reprimand. 2 (b) If the nonwillful violation does not constitute a 3 bona fide error pursuant to s 559.77(3), the office may impose 4 a fine of up to $1,000 per violation. In no event shall such 5 fine exceed the aggregate amount of $10,000 for all nonwillful 6 violations arising out of the same action; or 7 (c) For any willful violation, the office may impose a 8 fine of up to $2,500 per violation. In no event shall such 9 fine exceed the aggregate amount of $100,000 for all willful 10 violations arising out the same action. 11 12 Final action by the office to impose an administrative fine is 13 subject to review in accordance with ss. 120.569 and 120.57. 14 (6) Notwithstanding any other provision of this 15 section, the office may impose a fine not to exceed $1,000 per 16 day for each day that a person violates the code by engaging 17 in the business of a consumer collection agency without being 18 registered. 19 (7) Any administrative fine imposed under this part 20 shall be payable to the office. The office shall maintain an 21 appropriate record and deposit the fine into the Regulatory 22 Trust Fund of the office. 23 (8) An administrative action by the office to impose 24 revocation, suspension, or a fine must be brought within 5 25 years after the date of the last violation upon which the 26 action is founded. 27 (9) The remedies under this part are in addition to 28 remedies otherwise available for the same conduct under state 29 or local law. 30 Section 15. Section 559.735, Florida Statutes, is 31 created to read: 48 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 559.735 Administrative guidelines.--In imposing any 2 administrative remedy or penalty provided for in the code, the 3 office shall take into account the appropriateness of the 4 penalty with respect to the amount of financial resources and 5 good faith of the person charged, the gravity of the 6 violation, the history of previous violations, and such other 7 matters as justice may require. 8 Section 16. Subsections (1), (2), and (5) of section 9 559.77, Florida Statutes, are amended to read: 10 559.77 Civil remedies.-- 11 (1) A debtor may bring a civil action against a 12 consumer collection agency person violating the provisions of 13 s. 559.72(1) in a court of competent jurisdiction of the 14 county in which the alleged violator resides or has his or her 15 principal place of business or in the county wherein the 16 alleged violation occurred. 17 (2) Upon adverse adjudication, the defendant shall be 18 liable for actual damages and for additional statutory damages 19 of up to $1,000, together with court costs and reasonable 20 attorney's fees incurred by the plaintiff. In determining the 21 defendant's liability for any additional statutory damages, 22 the court shall consider the nature of the defendant's 23 noncompliance with s. 559.72(1), the frequency and persistence 24 of such noncompliance, and the extent to which such 25 noncompliance was intentional. In any class action lawsuit 26 brought under this section, the court may award additional 27 statutory damages of up to $1,000 for each named plaintiff and 28 an aggregate award of additional statutory damages not to 29 exceed the lesser of $500,000 or 1 percent of the defendant's 30 net worth for all remaining class members, but in no event may 31 this aggregate award provide an individual class member with 49 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 additional statutory damages in excess of $1,000. The court 2 may, in its discretion, award punitive damages and may provide 3 such equitable relief as it deems necessary or proper, 4 including enjoining the defendant from further violations of 5 this part. If the court finds that the suit fails to raise a 6 justiciable issue of law or fact, the plaintiff shall be 7 liable for court costs and reasonable attorney's fees incurred 8 by the defendant. Nothing in this section prohibits the 9 defendant or plaintiff from using the procedures under s. 10 768.79 or Rule 1.442 of the Florida Rules of Civil Procedure. 11 (5) In applying and construing this section, due 12 consideration and great weight shall be given to the 13 interpretations of the Federal Trade Commission and the 14 federal courts relating to the federal Fair Debt Collection 15 Practices Act and the Federal Trade Commission Act. If there 16 is an inconsistency between this part and an interpretation of 17 the federal acts, the provision that is more protective of the 18 consumer or debtor shall prevail unless the more protective 19 interpretation conflicts with the case law opinions of the 20 state and federal courts of this state or the opinions of the 21 Eleventh Circuit Court of Appeals. 22 Section 17. Section 559.785, Florida Statutes, is 23 amended to read: 24 559.785 Criminal penalty.-- 25 (1) It is shall be a felony misdemeanor of the third 26 first degree, punishable as provided in s. 775.082, or s. 27 775.083, or s. 775.084, for any person not exempt from 28 registering as provided in this part to: 29 (a) Operate or solicit business as a consumer 30 collection agency engage in collecting consumer debts in this 31 state without first registering with the office;, or to 50 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 (b) Register or attempt to register by means of fraud, 2 misrepresentation, or concealment; 3 (c) Engage in any consumer debt collection activity 4 after suspension or revocation of the registrant's 5 registration under s. 559.730(1); or 6 (d) Engage in any consumer debt collection activity 7 while under a temporary or permanent injunction issued under 8 s. 559.78. 9 (2) Each of the following acts constitutes a 10 misdemeanor of the second degree, punishable as provided in s. 11 775.082 or s. 775.083: 12 (a) Relocating a business as a consumer collection 13 agency or operating under any name other than that designated 14 in the registration, unless written notification is given to 15 the office and to the surety or sureties on the original bond. 16 (b) Assigning or attempting to assign a registration 17 under this part. 18 (3) The office may refer evidence concerning a 19 violation of this part, or of any rule or order, to any 20 criminal prosecutorial agency that may, with or without the 21 reference and in addition to any other action it might 22 commence, bring an action against any person to enjoin, 23 restrain, and prevent the commission of any prohibited act or 24 practice. 25 Section 18. Section 559.786, Florida Statutes, is 26 created to read: 27 559.786 Annual report.--The Office of Financial 28 Regulation shall submit a report on January 1, 2006, and 29 biannually thereafter, to the President of the Senate and the 30 Speaker of the House of Representatives containing findings 31 and conclusions concerning the effectiveness of the consumer 51 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 and commercial collection practices acts in preventing fraud, 2 abuse, and other unlawful activity associated with the 3 collection of commercial and consumer debts. The report shall 4 include a summary of the type and number of complaints 5 received by the office or the Division of Consumer Services of 6 the Department of Financial Services. The summary shall 7 identify the nature and number of the various kinds of 8 complaints received. The report may further contain 9 legislative recommendations concerning the efficacy of the 10 consumer and commercial practices act. 11 Section 19. Sections 559.547, 559.563, and 559.565, 12 Florida Statutes, are repealed. 13 Section 20. For the 2005-2006 fiscal year, five 14 positions are authorized and the sum of $366,614 is 15 appropriated from the Regulatory Trust Fund to the Office of 16 Financial Regulation for the purpose of enforcing this act. 17 The five positions shall consist of four examiners and one 18 registration analyst. 19 Section 21. This act shall take effect July 1, 2005. 20 21 22 ================ T I T L E A M E N D M E N T =============== 23 And the title is amended as follows: 24 Delete everything before the enacting clause 25 26 and insert: 27 A bill to be entitled 28 An act relating to commercial and consumer 29 collection practices; amending s. 559.543, 30 F.S.; providing a definition; amending s. 31 559.544, F.S.; deleting provisions requiring 52 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 registration as a commercial collection agency; 2 specifying nonapplication of certain 3 registration requirements to certain persons or 4 entities; amending s. 559.545, F.S.; revising 5 requirements and procedures for application for 6 registration as a commercial collection agency; 7 authorizing the Financial Services Commission 8 to adopt rules; providing for fees; providing 9 for amendments to and changes in registrations; 10 authorizing the Office of Financial Regulation 11 to deny registrations under certain 12 circumstances; amending s. 559.546, F.S.; 13 providing requirements and procedures for 14 issuance of a corporate surety bond; creating 15 ss. 559.5471, 559.5473, 559.5474, 559.5475, 16 559.5476, 559.5477, and 559.5479, F.S.; 17 specifying powers and duties of the Office of 18 Financial Regulation; providing procedures; 19 providing for disposition of fees; authorizing 20 the office to adopt rules; authorizing the 21 office to issue subpoenas; providing 22 requirements, procedures, and limitations; 23 authorizing the office to assess certain 24 investigation costs and expenses; authorizing 25 the office to bring certain actions for 26 injunctions to restrain certain violations; 27 providing requirements and procedures; 28 authorizing the office to issue certain cease 29 and desist orders and take certain corrective 30 actions for certain violations; authorizing the 31 office to seek orders of restitution of certain 53 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 funds; providing for admissibility of certain 2 documents and materials of the office as 3 evidence; requiring registrants to maintain 4 certain records; providing requirements and 5 procedures for maintaining such records; 6 authorizing the office to adopt rules; 7 authorizing the office to revoke or suspend 8 registrations for certain activities by a 9 registrant; providing requirements and 10 procedures for termination of a registration; 11 authorizing the office to impose administrative 12 fines; providing requirements and limitations; 13 providing guidelines for imposing 14 administrative remedies or penalties; providing 15 administrative guidelines for administrative 16 penalties and remedies; amending s. 559.55, 17 F.S.; revising definitions; providing 18 additional definitions; amending s. 559.552, 19 F.S.; revising provisions specifying the 20 relationship of state and federal laws; 21 providing construction; amending s. 559.553, 22 F.S.; deleting provisions requiring 23 registration as a consumer collection agency; 24 specifying nonapplication of certain 25 registration requirements to certain persons or 26 entities; providing a definition; amending s. 27 559.555, F.S.; revising requirements and 28 procedures for application for registration as 29 a consumer collection agency; authorizing the 30 Financial Services Commission to adopt rules; 31 providing for fees; providing for amendments to 54 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 and changes in registrations; authorizing the 2 Office of Financial Regulation to deny 3 registrations under certain circumstances; 4 creating s. 559.556, F.S.; providing 5 requirements and procedures for issuance of a 6 corporate surety bond; amending s. 559.72, 7 F.S.; specifying prohibited activities in 8 collecting consumer debts; providing 9 requirements for debt collectors communicating 10 with certain persons; providing prohibitions 11 and limitations; providing notification 12 requirements; prohibiting false, deceptive or 13 misleading representations by a debt collector; 14 prohibiting unfair or unconscionable means of 15 collecting debts; requiring debt collectors to 16 provide certain notice to consumers in 17 connection with collecting a debt; specifying 18 required information; providing procedures and 19 requirements for disputing a debt; providing 20 procedures and requirements for payments on 21 multiple debts; providing requirements for debt 22 collectors bringing legal actions on a debt; 23 prohibiting designing, compiling, and 24 furnishing certain misleading forms; providing 25 for liability for certain violations; amending 26 s. 559.725, F.S.; revising provisions providing 27 requirements and procedures for consumer 28 complaints; creating ss. 559.726, 559.7262, 29 559.7263, 559.7264, and 559.7265, F.S.; 30 specifying powers and duties of the Office of 31 Financial Regulation; providing procedures; 55 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 providing for disposition of fees; authorizing 2 the office to adopt rules; authorizing the 3 office to issue subpoenas; providing 4 requirements, procedures, and limitations; 5 authorizing the office to assess certain 6 investigation costs and expenses; authorizing 7 the office to bring certain actions for 8 injunctions to restrain certain violations; 9 providing requirements and procedures; 10 authorizing the office to issue certain cease 11 and desist orders and take certain corrective 12 actions for certain violations; authorizing the 13 office to seek orders of restitution of certain 14 funds; providing for admissibility of certain 15 documents and materials of the office as 16 evidence; requiring registrants to maintain 17 certain records; providing requirements and 18 procedures for maintaining such records; 19 authorizing the office to adopt rules; amending 20 s. 559.730, F.S.; authorizing the office to 21 revoke or suspend registrations for certain 22 activities by a registrant; providing 23 requirements and procedures for termination of 24 a registration; authorizing the office to 25 impose administrative fines; providing 26 requirements and limitations; creating s. 27 559.735, F.S.; providing guidelines for 28 imposing administrative remedies or penalties; 29 amending s. 559.77, F.S.; specifying 30 application of certain provisions of law; 31 providing for priority of application; amending 56 8:53 AM 04/18/05 s1984d-bi24-tb7
Florida Senate - 2005 COMMITTEE AMENDMENT Bill No. SB 1984 Barcode 235874 1 s. 559.785, F.S.; increasing criminal penalties 2 for certain activities; specifying a criminal 3 penalty for certain activities; authorizing the 4 office to refer certain evidence to certain 5 agencies for certain purposes; creating s. 6 559.786, F.S.; requiring the office to submit 7 an annual report; specifying contents; 8 repealing ss. 559.547 and 559.563, F.S., 9 relating to void registrations; repealing s. 10 559.565, F.S., relating to enforcement actions 11 against out-of-state consumer debt collectors; 12 providing an appropriation; providing an 13 effective date. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 57 8:53 AM 04/18/05 s1984d-bi24-tb7