1 | A bill to be entitled |
2 | An act relating to debt settlement services; amending s. |
3 | 817.801, F.S.; revising terms to exempt debt settlement |
4 | services from provisions regulating debt management |
5 | services and credit counseling services; creating part V |
6 | of ch. 817, F.S.; proving a short title; defining terms; |
7 | providing exceptions from provisions regulating debt |
8 | settlement services; requiring that debt settlement |
9 | providers be licensed by the Office of Financial |
10 | Regulation; providing application procedures and |
11 | requirements; providing for issuance, expiration, and |
12 | renewal of licenses; requiring license fees; authorizing |
13 | the office to deny licenses under certain circumstances; |
14 | authorizing debt settlement providers to continue |
15 | providing services pending an administrative hearing after |
16 | denial of a license application; requiring debt settlement |
17 | agreements; requiring specified provisions of such |
18 | agreements; authorizing a consumer to terminate or void an |
19 | agreement under certain circumstances; limiting a |
20 | consumer's grant of a power of attorney to a debt |
21 | settlement provider; requiring debt settlement providers |
22 | to maintain certain records; requiring debt settlement |
23 | providers to act in good faith and maintain certain |
24 | insurance coverage or surety bond; requiring debt |
25 | settlement providers to provide certain information, |
26 | disclosures, and assistance to consumers; limiting the |
27 | fees that debt settlement providers may charge to |
28 | consumers; prohibiting certain acts by debt settlement |
29 | providers; requiring debt settlement providers to |
30 | establish an internal complaint process and provide |
31 | certain information to the office; authorizing consumers |
32 | to bring civil actions against debt settlement providers |
33 | for certain violations of the act; providing penalties; |
34 | limiting a debt settlement provider's liability under |
35 | certain circumstances; authorizing the office to enforce |
36 | the act and impose certain penalties; limiting time for |
37 | bringing civil actions authorized by the act; authorizing |
38 | the office to suspend, revoke, or deny the license of a |
39 | debt settlement provider under certain circumstances; |
40 | providing penalties; authorizing the office to conduct |
41 | investigations, administer oaths, and impose charges on |
42 | persons subject to investigation; authoring interagency |
43 | agreements; requiring the office to adopt rules; providing |
44 | for legislative review of the act by a specified date; |
45 | providing an effective date. |
46 |
|
47 | Be It Enacted by the Legislature of the State of Florida: |
48 |
|
49 | Section 1. Subsections (1), (2), and (4) of section |
50 | 817.801, Florida Statutes, are amended to read: |
51 | 817.801 Definitions.--As used in this part: |
52 | (1) "Credit counseling agency" means any organization |
53 | providing debt management services or credit counseling |
54 | services. The term does not include a debt settlement provider |
55 | as defined in s. 817.903. |
56 | (2) "Credit counseling services" means confidential money |
57 | management, debt reduction, and financial educational services. |
58 | The term does not include a debt settlement provider as defined |
59 | in s. 817.903. |
60 | (4) "Debt management services" means services provided to |
61 | a debtor by a credit counseling organization for a fee to: |
62 | (a) Effect the adjustment, compromise, or discharge of any |
63 | unsecured account, note, or other indebtedness of the debtor; |
64 | and or |
65 | (b) Receive from the debtor and disburse to a creditor any |
66 | money or other thing of value. |
67 |
|
68 | The term does not include a debt settlement provider as defined |
69 | in s. 817.903. |
70 | Section 2. Part V of chapter 817, Florida Statutes, |
71 | consisting of sections 817.901, 817.903, 817.905, 817.907, |
72 | 817.909, 817.911, 817.913, 817.915, 817.917, 817.919, 817.921, |
73 | 817.923, 817.925, and 817.927, is created to read: |
74 | PART V |
75 | DEBT SETTLEMENT SERVICES |
76 | 817.901 Short title.--This part may be cited as the "Debt |
77 | Settlement Services Act." |
78 | 817.903 Definitions.--As used in this part, the term: |
79 | (1) "Concession" means a creditor's consent to accept |
80 | repayment of a debt from a consumer on terms more favorable to |
81 | the consumer than the original contractual terms between the |
82 | creditor and the consumer. |
83 | (2) "Debt settlement provider" means a person required to |
84 | be licensed under this part who provides, offers to provide, or |
85 | agrees to provide debt settlement services. The term does not |
86 | include a credit counseling agency as defined in s. 817.801. |
87 | (3) "Debt settlement services" means services provided for |
88 | a consumer by a debt settlement provider for a fee to obtain a |
89 | concession from the consumer's creditor or otherwise effect the |
90 | adjustment, compromise, or discharge of any unsecured account, |
91 | note, or other indebtedness of the consumer without receiving |
92 | from the consumer and disbursing to the creditor any money or |
93 | other thing of value. The term does not include debt management |
94 | services or credit counseling services as defined in s. 817.801. |
95 | (4) "Financial institution" has the same meaning as in s. |
96 | 655.005. |
97 | (5) "Office" means the Office of Financial Regulation of |
98 | the Financial Services Commission. |
99 | (6) "Person in control" of a debt settlement provider |
100 | means a person who has authority, directly or indirectly, to |
101 | affect the management or policies of the provider. The term |
102 | includes, but is not limited to, an owner, whether a partnership |
103 | or sole proprietorship, a corporate officer, a director, a |
104 | resident agent, or a trustee. |
105 | (7) "Presettlement debt" means the amount of money or |
106 | other thing of value owed by a consumer to a creditor at the |
107 | time that the consumer executes a service agreement with a debt |
108 | settlement provider. |
109 | 817.905 Application of part; exceptions.--This part does |
110 | not apply to the following persons or their employees when |
111 | engaged in the person's regular course of business: |
112 | (1) A person who provides debt settlement services for a |
113 | consumer and who does not receive compensation for such services |
114 | from the consumer or any of the consumer's creditors. |
115 | (2) An attorney licensed or otherwise authorized to |
116 | practice law in this state while providing legal services within |
117 | the attorney-client relationship described in s. 90.502. |
118 | (3) A certified public account licensed under chapter 473 |
119 | while providing accounting services within the accountant-client |
120 | relationship described in s. 90.5055. |
121 | (4) A judicial officer, a person acting under a court |
122 | order or order of an administrative agency, or the assignee of a |
123 | creditor. |
124 | (5) A financial institution or financial institution |
125 | holding company, or a subsidiary, agent, or affiliate of a |
126 | financial institution or financial institution holding company. |
127 | (6) A title insurance agent licensed under s. 626.8417, a |
128 | title insurance agency licensed under s. 626.8418, a title |
129 | insurer authorized to transact business in this state under s. |
130 | 624.401, an escrow agent, or another person who provides bill |
131 | paying services if the debt settlement services are incidental |
132 | to the bill paying services. |
133 | 817.907 Licensure of debt settlement providers; fees; |
134 | grounds for denial of license.-- |
135 | (1) A person may not provide debt settlement services in |
136 | this state unless the person is licensed under this part as a |
137 | debt settlement provider. However, an employee or agent of a |
138 | licensed debt settlement provider is not required to obtain a |
139 | separate license. The office shall maintain and publicize a list |
140 | of the licensed debt settlement providers in the state. |
141 | (2) A person seeking licensure as a debt settlement |
142 | provider must apply to the office in the format prescribed by |
143 | the office. An application must include: |
144 | (a) The corporate or fictitious name and any other name |
145 | under which the debt settlement provider conducts business in |
146 | the state. |
147 | (b) The street address and telephone number of the debt |
148 | settlement provider's principal place of business in the state |
149 | and, if applicable, the provider's email address and Internet |
150 | website. |
151 | (c) The street address of each location at which the debt |
152 | settlement provider engages in debt settlement services in the |
153 | state. A license is valid only for a location listed in the |
154 | license. A debt settlement provider must notify the office in |
155 | writing in the format prescribed the office before any change of |
156 | a licensed location. |
157 | (d) The full name, street address, telephone number, and |
158 | social security number or federal employer identification number |
159 | of each person who has at least a 10-percent ownership interest |
160 | in the debt settlement provider. |
161 | (e) A statement as to whether the debt settlement |
162 | provider, if incorporated, is a domestic or foreign corporation, |
163 | the state and date of incorporation, the charter number of the |
164 | corporation, and, if a foreign corporation, the date that the |
165 | corporation first registered with the Department of State to |
166 | transact business in this state. |
167 | (f) The name and address of the debt settlement provider's |
168 | registered agent for service of process in the state. |
169 | (g) A statement identifying and explaining any material |
170 | civil or criminal judgment relating to financial fraud or misuse |
171 | and any material administrative or enforcement action relating |
172 | to financial fraud or misuse by a governmental agency in any |
173 | jurisdiction against the applicant or any of its officers, |
174 | directors, owners, or agents. |
175 | (h) A copy of each form of service agreement that the |
176 | applicant uses for consumers in the state as provided in s. |
177 | 817.909. |
178 | (i) Evidence that the debt settlement provider has the |
179 | insurance coverage or surety bond required under s. 817.911(2) |
180 | and that the premiums for the insurance or bond are paid in |
181 | full. |
182 | (j) The schedule of fees that the applicant charges to |
183 | consumers in the state as provided in s. 817.909(2). |
184 | (k) A copy or description of the financial analysis that |
185 | the debt settlement provider uses to estimate a consumer's |
186 | monthly income available for repayment or settlement of the debt |
187 | as provided in s. 817.911(4)(a). |
188 | (3)(a) The office shall approve or deny a license within |
189 | 60 days after an application is submitted. The office shall |
190 | issue the license upon determining that the application is |
191 | complete and accompanied by the license fee. |
192 | (b) A license is valid for 1 year after the date of |
193 | issuance and is not assignable or transferable. A debt |
194 | settlement provider changing its name, address, registered |
195 | agent, insurance coverage, or surety bond at any time other than |
196 | renewal of the license must notify the office in writing within |
197 | 60 days after the change. |
198 | (4) A debt settlement provider may renew a license by |
199 | submitting a renewal application to the office on forms |
200 | prescribed by the office at least 30 days, but not more than 60 |
201 | days, before the license expires. The application must disclose |
202 | any changes to the information submitted to the office for the |
203 | initial license or most recent renewal of the license. The |
204 | office shall renew a license upon determining that the |
205 | application is complete and accompanied by the license fee. |
206 | (5) An application for an initial license or renewal of a |
207 | license must be accompanied by a license fee set by the office |
208 | by rule. The fee may not exceed $350 per year and may not exceed |
209 | the actual cost of administering this part. If a credit |
210 | counseling agency is required to pay a license or registration |
211 | fee under part IV of this chapter, the license fee for a debt |
212 | settlement provider may not exceed the fee paid by the credit |
213 | counseling agency. The office shall deposit funds collected |
214 | under this section in the General Inspection Trust Fund to be |
215 | used for administration of this part. |
216 | (6) The office may deny an application or refuse to renew |
217 | the license of a debt settlement provider if the application |
218 | contains information that is materially erroneous or incomplete |
219 | or if the office determines that the provider or any person in |
220 | control of the provider: |
221 | (a) Has failed to meet the requirements for initial |
222 | licensure as provided in this section. |
223 | (b) Has been found guilty or convicted of, or pled guilty |
224 | or nolo contendere to, a crime involving fraud, moral turpitude, |
225 | dishonest dealing, or any violation of this part. |
226 | (c) Has not satisfied any fine or penalty arising out of |
227 | an administrative or civil enforcement action brought by any |
228 | governmental agency or private person that is based upon conduct |
229 | involving fraud, moral turpitude, dishonest dealing, or any |
230 | violation of this part. |
231 | (d) Has had a judgment entered against the debt settlement |
232 | provider, or any person in control of the provider, in any |
233 | action brought under the Florida Deceptive and Unfair Trade |
234 | Practices Act as provided in part II of chapter 501 or any |
235 | action brought under this part. |
236 |
|
237 | Within 7 days after denying an application or refusing to renew |
238 | a license under this subsection, the office shall notify the |
239 | debt settlement provider in writing of the reasons for the |
240 | denial. Upon submission of an application, a debt settlement |
241 | provider may continue to provide debt settlement services while |
242 | the application is pending, but must cease to provide such |
243 | services if the office denies the application or refuses to |
244 | renew the license. |
245 | (7) If the debt settlement provider files a timely |
246 | petition or request for an administrative hearing under ss. |
247 | 120.569 and 120.57 after the office denies an application or |
248 | refuses to renew a license, until the office's decision becomes |
249 | final agency action, the provider may continue to provide debt |
250 | settlement services for a consumer with whom the provider has a |
251 | service agreement executed before the office denied the |
252 | application or refused to renew the license. |
253 | 817.909 Debt settlement agreement.-- |
254 | (1) A debt settlement provider may engage in debt |
255 | settlement services only pursuant to a service agreement that is |
256 | signed and dated by the consumer before the provision of |
257 | services. A service agreement must include: |
258 | (a) A full and detailed description of the debt settlement |
259 | services to be provided and an itemized schedule of the fees to |
260 | be paid by the consumer for each service. |
261 | (b) The street address of the debt settlement provider's |
262 | principal place of business in the state and the name and |
263 | address of the provider's registered agent for service of |
264 | process in the state. |
265 | (c)1. A provision allowing the consumer to cancel the |
266 | agreement without penalty or obligation within 3 business days |
267 | after the agreement is executed and a statement printed in all |
268 | boldface type in immediate proximity to the space provided for |
269 | the consumer's signature, in substantially the following form: |
270 | |
271 | You may cancel this agreement before midnight of the 3rd |
272 | business day after the date you sign the agreement. See |
273 | the attached Notice of Right to Cancel for details. |
274 |
|
275 | 2. The agreement must be accompanied by a notice of the |
276 | consumer's right to cancel the agreement, printed in at least |
277 | 12-point type in substantially the following form: |
278 |
|
279 | NOTICE OF RIGHT TO CANCEL |
280 | |
281 | You may cancel this agreement for debt settlement services |
282 | without penalty or obligation within 3 business days after |
283 | the date you sign the agreement. Your payment must be |
284 | returned to you within 10 business days after receipt of |
285 | your written notice of cancellation. To cancel, you must |
286 | sign, date, and mail or deliver this or any other written |
287 | notice to: ...(name of debt settlement provider)... at |
288 | ...(address)... by midnight of ...(date).... If you cancel |
289 | this agreement within the 3-day period, ...(name of debt |
290 | settlement provider)... will refund all money you have |
291 | already paid. |
292 | I cancel this agreement: |
293 |
|
294 | Name: ...(printed name of consumer).... |
295 | Signature: ...(signature of consumer).... |
296 | Date: ...(date).... |
297 |
|
298 | (d) A provision allowing the consumer to terminate the |
299 | agreement at any time by giving the debt settlement provider |
300 | written notice, upon which any power of attorney granted by the |
301 | consumer to the provider is void. |
302 | (2) A debt settlement agreement may include a consumer's |
303 | power of attorney to negotiate with the consumer's creditors on |
304 | behalf of the consumer and settle the consumer's presettlement |
305 | debt for no more than 50 percent of the debt. If a debt |
306 | settlement agreement includes this power of attorney, the |
307 | agreement must expressly limit the provider's authority to |
308 | settle the debt for more than 50 percent of the presettlement |
309 | debt unless the consumer agrees in writing to the settlement. |
310 | (3) A debt settlement agreement may not provide for |
311 | application of the law of any jurisdiction other than this |
312 | state, contain a provision that limits or releases a person from |
313 | liability for not performing the terms of the service agreement |
314 | or committing a violation of this part, restrict a consumer's |
315 | remedies under this part, or, notwithstanding s. 682.02, require |
316 | the consumer to submit to arbitration. |
317 | (4) A debt settlement provider must provide the consumer |
318 | with a copy of the service agreement and each other document |
319 | signed by the consumer at the time the documents are signed. |
320 | (5) A consumer may void a debt settlement agreement if the |
321 | debt settlement provider is not licensed as required in s. |
322 | 817.907 or charges the consumer a fee for debt settlement |
323 | services that is prohibited under s. 817.913. |
324 | (6) A debt settlement provider shall maintain records of |
325 | the debt settlement services that it provide for a consumer for |
326 | at least 4 years after the consumer's final payment. The debt |
327 | settlement provider shall give the consumer a copy of the |
328 | records within a reasonable time upon the consumer's request. |
329 | 817.911 Debt settlement services; requirements; insurance |
330 | coverage; surety bond.-- |
331 | (1) A debt settlement provider must act in good faith in |
332 | all matters under this part. |
333 | (2)(a) A debt settlement provider must obtain and maintain |
334 | insurance coverage in an amount determined necessary by the |
335 | office to protect consumers, which may not exceed the amount of |
336 | insurance coverage required for a credit counseling agency under |
337 | s. 817.804. |
338 | (b) A debt settlement provider, in lieu of maintaining the |
339 | insurance coverage required under paragraph (a), may obtain and |
340 | maintain a surety bond in an amount of at least $10,000, but not |
341 | more than $50,000, as determined necessary by the office based |
342 | on the financial condition and business experience of the debt |
343 | settlement provider, the provider's history of performing debt |
344 | settlement services, and the risk to consumers. The bond must be |
345 | filed with the office and be issued in favor of the office for |
346 | the use and benefit of any consumer who is injured by a |
347 | violation of this part. The aggregate liability of the surety to |
348 | all claimants may not exceed the amount of the bond, regardless |
349 | of the number or amount of claims. If multiple claims exceed the |
350 | amount of the bond and the surety pays the bond's full amount to |
351 | the office, the surety has no further liability. The office |
352 | shall hold any funds collected from the surety for 6 months |
353 | after the date of the first claim and immediately thereafter |
354 | shall pay each claimant the pro rata share of the funds based on |
355 | the claim's proportion of the aggregate amount of claims. |
356 | (3) A debt settlement provider shall maintain a toll-free |
357 | telephone number that allows a consumer to speak with a customer |
358 | service representative during regular business hours. |
359 | (4) Before a consumer executes a debt settlement |
360 | agreement, the debt settlement provider must: |
361 | (a) Prepare a financial analysis of the consumer's income, |
362 | expenses, presettlement debt, and credit history which estimates |
363 | the amount of the consumer's monthly income available for |
364 | repayment or settlement of the debt. The debt settlement |
365 | provider must provide the consumer with a copy of the financial |
366 | analysis free of charge, whether or not the consumer executes a |
367 | service agreement for debt settlement services. |
368 | (b) Inform the consumer of the availability of assistance |
369 | through a toll-free telephone number or in person to discuss the |
370 | financial analysis required under paragraph (a). |
371 | (c) Inform the consumer that not all debt settlement |
372 | services are suitable for all consumers; that debt settlement |
373 | may adversely affect the consumer's credit rating or credit |
374 | scores; that nonpayment of debt may lead creditors to increase |
375 | finance or other charges or undertake collection activities, |
376 | including litigation; and that debt settlement may result in the |
377 | consumer's increased tax liability, whether or not the consumer |
378 | receives any money. |
379 | (d) Inform the consumer that the debt settlement provider |
380 | cannot guarantee specific results or compel a creditor to |
381 | negotiate or settle a debt. |
382 | (e) Inform the consumer that debt settlement services may |
383 | require the consumer to meet certain savings goals in order to |
384 | maximize settlement results. |
385 | (f) Disclose that the debt settlement provider does not |
386 | provide accounting or legal advice to consumers unless the |
387 | provider is professionally licensed to provide such advice; that |
388 | the provider is the consumer's advocate and does not receive |
389 | compensation from creditors, financial institutions, or third- |
390 | party collection agencies; and that the provider does not make |
391 | payments to the consumer's creditors. |
392 | (5) A debt settlement provider that maintains an Internet |
393 | website must disclose on the website's main page, or on a page |
394 | clearly linked to the main page, the provider's corporate or |
395 | fictitious name, any other name under which the provider |
396 | conducts business in the state, the street address and telephone |
397 | number of the provider's principal place of business in the |
398 | state, and the provider's email address. |
399 | 817.913 Prohibited fees.-- |
400 | (1) A debt settlement provider may not impose, directly or |
401 | indirectly, a fee or other charge on a consumer or receive money |
402 | from or on behalf of a consumer for debt settlement services, |
403 | except as authorized by this section. |
404 | (2) A debt settlement provider may not charge or collect |
405 | fees from a consumer for debt settlement services until the |
406 | consumer executes a service agreement as provided in s. 817.909. |
407 | The fees may not exceed 20 percent of the consumer's |
408 | presettlement debt. |
409 | (3) A debt settlement provider may charge a service fee to |
410 | a consumer that does not exceed the service fees authorized |
411 | under s. 832.08(5) or 5 percent of the face amount of the check, |
412 | draft, or order, whichever is greater, for the collection of a |
413 | dishonored check, draft, or other order for the payment of money |
414 | to the provider. |
415 | 817.915 Prohibited acts.--A debt settlement provider may |
416 | not: |
417 | (1) Engage in debt settlement services at any location |
418 | other than a location licensed under s. 817.907. |
419 | (2) Charge or accept from a consumer, directly or |
420 | indirectly, any fee or charge prohibited under s. 817.913 or |
421 | solicit a voluntary contribution from a consumer for any service |
422 | provided for the consumer. |
423 | (3) Engage in debt settlement services, or charge or |
424 | accept from a consumer, directly or indirectly, any fee or |
425 | contribution before the consumer signs a service agreement under |
426 | s. 817.909. |
427 | (4) Fail to maintain at all times the insurance coverage |
428 | or surety bond required under s. 817.911(2). |
429 | (5) Settle a debt on behalf of a consumer for more than 50 |
430 | percent of the amount of the presettlement debt unless the |
431 | consumer agrees in writing to the settlement. |
432 | (6) Accept a power of attorney from a consumer that |
433 | authorizes the debt settlement provider to settle a debt on |
434 | behalf of the consumer unless the power of attorney expressly |
435 | limits the provider's authority to settle the debt for no more |
436 | than 50 percent of the amount of the presettlement debt unless |
437 | the consumer agrees in writing to the settlement. |
438 | (7) Use or attempt to use a consumer's power of attorney |
439 | after the consumer terminates the service agreement with the |
440 | debt settlement provider. |
441 | (8) Structure a settlement that results in a negative |
442 | amortization schedule for repayment of any of a consumer's |
443 | debts. |
444 | (9) Settle a debt, or cause a consumer to believe that |
445 | payment to a creditor settles a debt, unless the consumer |
446 | receives before the settlement or payment a certification or |
447 | confirmation from the creditor that the payment fully settles |
448 | the debt or is part of a payment plan that, upon completion, |
449 | fully settles the debt. |
450 | (10) Initiate a transfer from a consumer's account unless |
451 | the transfer is for return of money to the consumer, for payment |
452 | of a fee authorized by a current debt settlement service |
453 | agreement, for payment of a creditor to fund a negotiated |
454 | settlement of no more than 50 percent of the presettlement debt, |
455 | or for payment of a creditor to fund a negotiated settlement of |
456 | more than 50 percent of the presettlement debt if the consumer |
457 | agrees to the settlement and the transfer. |
458 | (11) Purchase any debt or obligation of a consumer; lend |
459 | money or provide credit to a consumer, except as a deferral of a |
460 | fee payment at no additional expense to the consumer; obtain a |
461 | mortgage or other security interest from any person in |
462 | connection with the debt settlement services provided to the |
463 | consumer; accept from, or on behalf of, a consumer a promissory |
464 | note or other negotiable instrument, other than a check or |
465 | demand draft; or accept a postdated check or demand draft. |
466 | (12) Provide the consumer with less than the full benefit |
467 | of any settlement of a debt negotiated by the debt settlement |
468 | provider. |
469 | (13) Advise a consumer to stop payment on any debts. |
470 | (14) Represent to a consumer that the debt settlement |
471 | provider is authorized or competent to provide legal or |
472 | accounting advice, or perform legal or accounting services for a |
473 | consumer, unless the provider is licensed to provide such advice |
474 | or services. |
475 | (15) Represent to a consumer that the debt settlement |
476 | provider will furnish money to pay a bill or prevent the |
477 | attachment of an asset; that partial payment of a certain amount |
478 | will guarantee satisfaction of the full amount of a debt; or |
479 | that participation in debt settlement services will prevent |
480 | litigation, garnishment, attachment, repossession, foreclosure, |
481 | eviction, or loss of employment. |
482 | (16) Represent that the debt settlement provider is a |
483 | corporation not for profit unless it is organized under chapter |
484 | 617 or is exempt from federal income taxation and has a |
485 | certificate issued by the Internal Revenue Service recognizing |
486 | the provider's exemption. |
487 | (17) Make or use any false or misleading representation, |
488 | omit any material fact in the offer or sale of services, or |
489 | engage directly or indirectly in any fraudulent, false, |
490 | misleading, unconscionable, unfair, or deceptive act or practice |
491 | in connection with the offer or sale of any services of a debt |
492 | settlement provider. |
493 | (18) Violate any other provision of this part. |
494 | 817.917 Complaints; civil remedies.-- |
495 | (1) A debt settlement provider shall establish an internal |
496 | complaint process that allows the provider to receive, review, |
497 | and address or resolve a consumer's complaint internally. The |
498 | debt settlement provider shall notify each consumer in writing |
499 | of the complaint process. A complaint process must specify a |
500 | reasonable period after a consumer submits a complaint for the |
501 | debt settlement provider to respond to the complaint. A debt |
502 | settlement provider shall maintain records of each consumer |
503 | complaint, its processing, and its resolution and shall disclose |
504 | the records to the office upon request. |
505 | (2)(a) A consumer who is injured by a debt settlement |
506 | provider's violation of this part may bring an action in circuit |
507 | court against the provider and any person who caused the |
508 | violation for compensatory damages for the economic injury |
509 | caused by the violation, or $1,000, whichever is greater, and |
510 | reasonable attorney's fees and costs. The $1,000 minimum amount |
511 | of compensatory damages per consumer does not apply to a class |
512 | action. |
513 | (b) In addition to the compensatory damages authorized |
514 | under paragraph (a), if a debt settlement provider violates a |
515 | consumer's rights under s. 817.909, the consumer may recover in |
516 | a civil action all money paid by or on behalf of the consumer |
517 | under the service agreement, except for amounts paid to |
518 | creditors. |
519 | (c) In addition to the compensatory damages authorized in |
520 | paragraph (a), a consumer who voids a service agreement under s. |
521 | 817.909(5) may recover in a civil action all money paid by or on |
522 | behalf of the consumer under the agreement. |
523 | (d) A debt settlement provider is not liable under this |
524 | section for a violation of this part if the provider proves that |
525 | the violation is not intentional and resulted from a good faith |
526 | error to comply with this part, despite the provider's use of |
527 | procedures reasonably adapted to avoid the error. If, in |
528 | connection with a violation, the debt settlement provider |
529 | receives more money than authorized by the service agreement or |
530 | this part, the defense provided in this paragraph is not |
531 | available unless the provider refunds the excess moneys within 3 |
532 | business days after learning of the violation. |
533 | 817.919 Administrative remedies; penalties.-- |
534 | (1) The office may enforce this part and rules adopted |
535 | under this part by taking one or more of the following actions: |
536 | (a) Ordering a debt settlement provider, a person in |
537 | control of the provider, or the provider's employee or agent to |
538 | cease and desist from any violations. |
539 | (b) Ordering a debt settlement provider or a person |
540 | causing a violation to correct the violation, including making |
541 | restitution of money or property to the person aggrieved by the |
542 | violation. |
543 | (c) Imposing on a debt settlement provider, or a person |
544 | causing a violation, a civil penalty not to exceed $1,000 for |
545 | each violation. |
546 | (d) Prosecuting a civil action to enforce an order; to |
547 | obtain restitution, an injunction or other equitable relief, or |
548 | both; or to intervene in an action brought by a consumer under |
549 | s. 817.917(2). |
550 | (2) If a person violates or knowingly authorizes, directs, |
551 | or aids another person to violate a final order issued under |
552 | subsection (1), the office may impose an additional civil |
553 | penalty not to exceed $1,000 for each violation. |
554 | (3) In determining the amount of a civil penalty to impose |
555 | under subsection (1) or subsection (2), the office shall |
556 | consider the seriousness of the violation, the good faith of the |
557 | violator, any previous violations by the violator, the harm or |
558 | potential harm of the violation to the public, and the net worth |
559 | of the violator. |
560 | (4)(a) The office may bring an action to enforce this part |
561 | in any county. |
562 | (b) The office may recover the reasonable costs of |
563 | enforcing this part under this section, including attorney's |
564 | fees based on the hours reasonably expended and the hourly rates |
565 | for attorneys of comparable experience in the community. |
566 | 817.921 Limitations of actions.-- |
567 | (1) An action brought under s. 817.917(2) must be |
568 | commenced within 2 years after the latest of: |
569 | (a) The consumer's final payment of money to the debt |
570 | settlement provider. |
571 | (b) The date on which the consumer discovered or |
572 | reasonably should have discovered the facts giving rise to the |
573 | consumer's claim. |
574 | (c) Termination of an action or proceeding by the office |
575 | for a violation of this part. |
576 | (2) An action or proceeding brought under s. 817.919 must |
577 | be commenced within 4 years after the conduct that is the basis |
578 | of the office's complaint. |
579 | 817.923 Disciplinary proceedings; penalties.--The office |
580 | may suspend, revoke, or deny the renewal of a debt settlement |
581 | provider's license, if: |
582 | (1) A fact or condition exists that, if it existed when |
583 | the debt settlement provider applied for a license, would be a |
584 | reason for denying the license. |
585 | (2) The debt settlement provider materially violates this |
586 | part or a rule adopted under this part. |
587 | (3) The debt settlement provider becomes insolvent. As |
588 | used in this subsection, the term "insolvent" means: |
589 | (a) Generally ceasing to pay debts in the ordinary course |
590 | of business other than due to a good faith dispute. |
591 | (b) Being unable to pay debts as they become due. |
592 | (c) Being insolvent as defined in the federal Bankruptcy |
593 | Code, 11 U.S.C. s. 101, as amended. |
594 | (4) The debt settlement provider, or the provider's |
595 | employee or agent, refuses to disclose records to the office as |
596 | required in s. 817.917(1), fails to comply with s. 817.925(2) |
597 | within 30 days after the request, or makes a material |
598 | misrepresentation or omission in complying with s. 817.925(2). |
599 | (5) The debt settlement provider does not respond within a |
600 | reasonable time and in an appropriate manner to communications |
601 | from the office. |
602 | 817.925 Powers of Office of Financial Regulation; |
603 | rulemaking.-- |
604 | (1) The Office of Financial Regulation may act on its own |
605 | initiative, may act on a consumer complaint received by the |
606 | office, may take action to obtain voluntary compliance with this |
607 | part, and may seek or impose the administrative and disciplinary |
608 | remedies authorized in this part. |
609 | (2) The office may investigate and examine, in this state |
610 | or any other jurisdiction, the activities, books, accounts, and |
611 | records of a person who provides or offers to provide debt |
612 | settlement services in the state. In connection with an |
613 | investigation, the office may: |
614 | (a) Charge the person the reasonable expenses necessarily |
615 | incurred to conduct the examination. |
616 | (b) Require or permit a person to file a statement under |
617 | oath as to all the facts and circumstances of the matter under |
618 | investigation. |
619 | (3) The office may enter into cooperative arrangements |
620 | with any other federal or state agency having authority over |
621 | debt settlement providers and may exchange with any such agency |
622 | information about a debt settlement provider, including |
623 | information obtained during an examination of the provider. |
624 | (4) The office shall adopt rules under ss. 120.536(1) and |
625 | 120.54 to administer this part. |
626 | 817.927 Sunset review.--This part shall be reviewed by the |
627 | Legislature before June 30, 2015, but does not expire and is not |
628 | repealed if the Legislature does not take action before that |
629 | date. |
630 | Section 3. This act shall take effect July 1, 2009. |