Florida Senate - 2009 SB 1056 By Senator Fasano 11-00729A-09 20091056__ 1 A bill to be entitled 2 An act relating to tax refund loans or checks; 3 providing a short title; providing definitions; 4 requiring a person engaged in providing refund 5 anticipation loans or checks to comply with certain 6 requirements; requiring facilitators of refund 7 anticipation loans or checks to disclose certain 8 information; prescribing how that information must be 9 displayed; requiring a facilitator to disclose certain 10 information in an application for a refund 11 anticipation loan or check; prescribing how that 12 information must be displayed; requiring a facilitator 13 to provide certain information orally to an applicant 14 for a refund anticipation loan or check; providing 15 activities that are prohibited when transacting a 16 refund anticipation loan or check; limiting the amount 17 of interest that may be charged on a refund 18 anticipation loan; requiring refund anticipation loan 19 and check marketing and advertizing efforts to include 20 certain disclosures; providing remedies, including 21 attorney's fees and costs; providing an effective 22 date. 23 24 Be It Enacted by the Legislature of the State of Florida: 25 26 Section 1. Tax Refund Anticipation Loan Act.— 27 (1) TITLE.—This section may be cited as the “Tax Refund 28 Anticipation Loan Act.” 29 (2) DEFINITIONS.—As used in the section, the term: 30 (a) “Consumer” means an individual who singly, or jointly 31 with another consumer, is solicited for, applies for, or 32 receives the proceeds of a refund anticipation loan or refund 33 anticipation check. 34 (b) “Creditor” means a person who makes a refund 35 anticipation loan or who takes an assignment of a refund 36 anticipation loan. 37 (c) “Facilitator” means a person who individually or with 38 another: 39 1. Solicits the execution of, processes, receives, or 40 accepts an application or agreement for a refund anticipation 41 loan or refund anticipation check; 42 2. Services or collects upon a refund anticipation loan or 43 refund anticipation check; or 44 3. Otherwise facilitates the making of a refund 45 anticipation loan or refund anticipation check. 46 If there is no third-party facilitator because a creditor 47 directly solicits the execution of, receives, or accepts an 48 application or agreement for a refund anticipation loan or 49 refund anticipation check, the creditor is the facilitator. 50 (d) “Market” or “advertise” means to produce, distribute, 51 broadcast, or otherwise display written materials, oral 52 statements, or visual materials describing products and 53 services. 54 (e) “Person” has the same meaning as in s. 1.01. 55 (f) “Refund anticipation check” means a check, stored value 56 card, or other payment mechanism representing the proceeds of a 57 consumer’s tax refund which is issued by a depository 58 institution or other person that receives the direct deposit of 59 the consumer’s tax refund or tax credits, and for which the 60 consumer has paid a fee or other consideration for such payment. 61 (g) “Refund anticipation loan” means a loan that is secured 62 by or that the creditor arranges to be repaid, directly or 63 indirectly, from the proceeds of the consumer's income tax 64 refund or tax credits. A refund anticipation loan also includes 65 any sale, assignment, or purchase of a consumer’s tax refund at 66 a discount or for a fee, regardless of whether the consumer is 67 required to repay the buyer or assignee if the Internal Revenue 68 Service denies or reduces the consumer’s tax refund. 69 (h) “Refund anticipation loan fee” means the charges, fees, 70 or other consideration charged or imposed, directly or 71 indirectly, by the creditor for the making of or in connection 72 with a refund anticipation loan. 73 (i) “Refund anticipation loan interest rate” means the 74 interest rate for a refund anticipation loan calculated as 75 follows: the total amount of refund anticipation loan fees, 76 divided by the loan amount minus any loan fees, divided by the 77 number of days in the loan term, multiplied by 365 and expressed 78 as a percentage. The total amount of the refund anticipation 79 loan fees must include all refund anticipation loan fees 80 imposed. If a deposit account is established or maintained, in 81 whole or in part, to receive the consumer's tax refund in order 82 to repay the amount owed on a refund anticipation loan: 83 1. Any fee charged to the consumer for such deposit account 84 is considered a loan fee and must be included in calculating the 85 refund anticipation loan interest rate; and 86 2. For the purpose of determining the refund anticipation 87 loan interest rate, the maturity date of the loan is the 88 estimated date that the tax refund will be deposited in the 89 deposit account. If a deposit account is not established or 90 maintained, the maturity date of the loan is the estimated date 91 that the tax refund is received by the creditor. 92 (3) SCOPE.—A person, including an agent or employee of such 93 person, may not, individually or with another person, directly 94 or indirectly, solicit the execution of, process, receive, or 95 accept an application or agreement for a tax refund anticipation 96 loan or refund anticipation check, or in any other manner 97 facilitate the making of a refund anticipation loan or refund 98 anticipation check unless the person has complied with the 99 provisions of this section. 100 (4) POSTING OF FEE SCHEDULES AND DISCLOSURES.— 101 (a) Each facilitator must display a fee schedule showing 102 the current fees for refund anticipation loans or refund 103 anticipation checks transacted at the facilitator's place of 104 business in a prominent location at the place of business, in at 105 least 28-point type, and, unless otherwise noted, on a document 106 measuring at least 16 inches by 20 inches. The fee schedule must 107 also include: 108 1. Examples of the refund anticipation loan interest rate 109 for at least five different refund anticipation loan amounts 110 calculated in accordance with the formula set forth in paragraph 111 (2)(i). 112 2. The following statement centered and in 1-inch uppercase 113 and bold type: 114 TAX REFUND ANTICIPATION LOANS 115 WHEN YOU TAKE OUT A REFUND ANTICIPATION LOAN, YOU ARE 116 BORROWING MONEY AGAINST YOUR TAX REFUND. IF YOUR TAX 117 REFUND IS LESS THAN EXPECTED, YOU WILL STILL OWE THE 118 ENTIRE AMOUNT OF THE LOAN. IF YOUR REFUND IS DELAYED, 119 YOU MAY HAVE TO PAY ADDITIONAL FEES. 120 YOU WILL USUALLY RECEIVE YOUR TAX REFUND IN 8 TO 15 121 DAYS WITHOUT OBTAINING A LOAN OR PAYING EXTRA FEES IF 122 YOUR TAX RETURN IS FILED ELECTRONICALLY AND YOUR 123 REFUND IS DEPOSITED DIRECTLY INTO YOUR BANK ACCOUNT. 124 (b) A facilitator may not facilitate a refund anticipation 125 loan or refund anticipation check unless the disclosures 126 required by this section are displayed and the fee charged for 127 the loan or check is the same as the fee displayed on the 128 schedule. 129 (5) APPLICATION DISCLOSURES.— 130 (a) When a consumer applies for a refund anticipation loan 131 or refund anticipation check, the facilitator must disclose to 132 the consumer on a form separate from the application in 14-point 133 type, unless otherwise noted: 134 1. The fee for the refund anticipation loan or refund 135 anticipation check. 136 2. The fee for tax preparation and any other fee charged to 137 the consumer. 138 3. The time within which the proceeds of the refund 139 anticipation loan or check will be paid to the consumer if the 140 loan or check is approved. 141 4. For refund anticipation loans, the following statement 142 centered and in 18-point uppercase and bold type: 143 NOTICE 144 THIS IS A LOAN. YOU ARE BORROWING MONEY AGAINST YOUR 145 TAX REFUND. IF YOUR TAX REFUND IS LESS THAN EXPECTED, 146 YOU WILL STILL OWE THE ENTIRE AMOUNT OF THE LOAN. IF 147 YOUR REFUND IS DELAYED, YOU MAY HAVE TO PAY ADDITIONAL 148 FEES. 149 YOU WILL USUALLY RECEIVE YOUR REFUND IN 8 TO 15 DAYS 150 WITHOUT OBTAINING A LOAN OR PAYING EXTRA FEES IF YOUR 151 TAX RETURN IS FILED ELECTRONICALLY AND YOUR REFUND IS 152 DEPOSITED DIRECTLY INTO YOUR BANK ACCOUNT. 153 5. For refund anticipation loans, the refund anticipation 154 loan interest rate calculated in accordance with the formula set 155 forth in paragraph (2)(i). 156 6. For refund anticipation checks, the following statement 157 centered and in 18-point bold and uppercase type: 158 NOTICE 159 YOU ARE PAYING [...amount of refund anticipation check 160 fee...] TO RECEIVE YOUR REFUND CHECK THROUGH [...name 161 of issuer of refund anticipation check...]. YOU MAY 162 AVOID THIS FEE AND STILL RECEIVE YOUR REFUND IN THE 163 SAME AMOUNT OF TIME BY HAVING YOUR REFUND DIRECTLY 164 DEPOSITED INTO YOUR BANK ACCOUNT. YOU MAY ALSO WAIT 165 FOR THE INTERNAL REVENUE SERVICE (IRS) TO MAIL YOU A 166 CHECK. IF YOU DO NOT HAVE A BANK ACCOUNT, YOU MAY WANT 167 TO CONSIDER GETTING ONE. 168 (b) Before consummating the loan or check transaction, the 169 facilitator must provide to the consumer, in a form that can be 170 kept by the consumer, the disclosure required by paragraph (a), 171 a copy of the completed loan or check application and agreement, 172 and, for refund anticipation loans, the disclosures required 173 under the federal Truth-In-Lending Act. 174 (c) The disclosures required by paragraph (a) must be 175 provided in English and in the language used primarily for oral 176 communication between the facilitator and the consumer. 177 (6) ORAL DISCLOSURES.— 178 (a) If a consumer applies for a refund anticipation loan, 179 the facilitator must orally inform the consumer in the language 180 primarily used for oral communications between the facilitator 181 and consumer: 182 1. That the product is a loan that lasts only for 1 to 2 183 weeks; 184 2. If the consumer’s tax refund is less than expected, the 185 consumer is liable for the full amount of the loan and must 186 repay any difference; 187 3. The amount of the refund anticipation loan fee; and 188 4. The refund anticipation loan interest rate. 189 (b) If a consumer applies for a refund anticipation check, 190 the facilitator must orally inform the consumer in the language 191 primarily used for oral communications between the facilitator 192 and consumer: 193 1. The amount of the refund anticipation check fee; and 194 2. That the consumer will usually receive a refund in the 195 same amount of time without a fee if the tax return is filed 196 electronically and the consumer chooses to have the refund 197 directly deposited to the consumer’s bank account. 198 (c) If the facilitator provides an estimate of the amount 199 that the consumer will receive after deducting fees for tax 200 preparation and fees for the refund anticipation loan or refund 201 anticipation check, the facilitator must also describe all the 202 options available to the consumer and the refund amount and the 203 charge for each fee under each option, including: 204 1. Not obtaining a refund anticipation loan or check and 205 receiving the full tax refund amount by mail within 3 to 8 weeks 206 if the tax return is mailed. 207 2. Not obtaining a refund anticipation loan or check and 208 receiving the full refund amount within 8 to 15 days if the tax 209 return is electronically filed and the refund is directly 210 deposited to the consumer's bank account. 211 3. Obtaining a refund anticipation check within 8 to 15 212 days in the amount anticipated from preparing the tax refund, 213 minus the refund anticipation check fee, the tax preparation 214 fee, and any other fee charged, and not receiving a refund 215 check. 216 4. Obtaining a refund anticipation loan within 1 to 2 days 217 in the amount anticipated from preparing the tax refund, minus 218 the refund anticipation loan fee, the tax preparation fee, and 219 any other fee charged, and not receiving a refund check. 220 These disclosures may be used to fulfill the requirements of 221 subparagraph (a)3. or paragraph (b). 222 (7) PROHIBITED ACTIVITIES.—A person, including an agent or 223 employee of such person, may not: 224 (a) Charge or impose any fee, charge, or other 225 consideration in the making or facilitating of a refund 226 anticipation loan or refund anticipation check apart from the 227 fee charged by the creditor or bank that provides the loan or 228 check. This prohibition does not include any charge or fee 229 imposed by the facilitator to all of its customers, such as a 230 fee for preparing tax returns, if the same fee amount is charged 231 to customers who do not receive a refund anticipation loan, 232 refund anticipation check, or any other tax-related financial 233 product. 234 (b) Engage in unfair or deceptive acts or practices in 235 transacting a refund anticipation check or a refund anticipation 236 loan, including making any oral statements contradicting any of 237 the information required to be disclosed under this section. 238 (c) Fail to comply with any applicable provision of this 239 section. 240 (d) In transacting a refund anticipation loan or refund 241 anticipation check, threaten to take any action that is 242 prohibited by this section or any other law, or that the person 243 does not actually intend to take. 244 (e) Directly or indirectly, arrange for any third party to 245 charge any interest, fee, or charge related to a refund 246 anticipation loan or refund anticipation check, other than the 247 loan or check fee imposed by the creditor, including, but not 248 limited to, charges for insurance, attorney's fees or other 249 collection costs, or check cashing. 250 (f) Include any of the following provisions in any document 251 provided or signed in connection with a refund anticipation loan 252 or refund anticipation check, including the loan application or 253 agreement: 254 1. A hold harmless clause. 255 2. A confession of judgment clause. 256 3. A waiver of the right to a jury trial, if applicable, in 257 any action brought by or against the consumer. 258 4. Any assignment of, or order for, payment of wages or 259 other compensation for services. 260 5. A provision in which the consumer agrees not to assert 261 any claim or defense arising out of the contract, or to seek any 262 remedies available under this section. 263 6. A waiver of any provision of this section. Any such 264 waiver is null, void, and of no effect. 265 7. A waiver of the right to injunctive, declaratory, other 266 equitable relief, or relief on a class-wide basis. 267 8. A requirement that any aspect of a resolution of a 268 dispute between the parties to the agreement be kept 269 confidential. This does not affect the right of the parties to 270 agree that certain specified information is a trade secret or 271 otherwise confidential or to later agree, after a dispute 272 arises, to keep a resolution confidential. 273 (g) Take, or arrange for a creditor to take, a security 274 interest in any of the consumer's property, other than the 275 proceeds of the consumer's tax refund, in order to secure 276 payment of a refund anticipation loan. 277 (h) Directly, indirectly, individually, or with another 278 person, engage in the collection of an outstanding or delinquent 279 refund anticipation loan for any creditor or assignee, including 280 soliciting the execution of, processing, receiving, or accepting 281 an application or agreement for a refund anticipation loan or 282 refund anticipation check that contains a provision authorizing 283 the creditor to repay, by offset or other means, an outstanding 284 or delinquent refund anticipation loan from the proceeds of the 285 consumer’s tax refund. 286 (i) Refer, facilitate, or solicit consumers on behalf of a 287 third party engaged in check cashing for a fee, or allow third 288 party check cashing for a fee, in any place of business in which 289 refund anticipation loans or refund anticipation checks are 290 transacted. 291 (8) INTEREST RATE CAP FOR NONBANK REFUND ANTICIPATION 292 LOANS.— 293 (a) A person may not make or facilitate a refund 294 anticipation loan for which the refund anticipation loan 295 interest rate is greater than the loan rate authorized under s. 296 687.03. The refund anticipation loan interest rate shall be 297 calculated as set forth in paragraph (2)(i). Any refund 298 anticipation loan for which the loan interest rate exceeds the 299 amount allowed under s. 687.03, Florida Statutes, is void ab 300 initio. 301 (b) This subsection does not apply to persons facilitating 302 for or doing business as a bank, thrift association, savings 303 association, or credit union subject to federal laws that 304 preempt the prohibition set forth in paragraph (a). 305 (9) ADVERTISING AND MARKETING.— 306 (a) A facilitator may not market or advertise a refund 307 anticipation loan without including the following statement 308 verbatim: “[...Name of product...] is a loan. You will usually 309 receive get your refund in 8 to 15 days without a loan or extra 310 fees if you use e-file and direct deposit.” For print 311 advertisements, the statement must be printed in type size one 312 half as large as the largest type size in the advertisement. For 313 radio and television advertisements, this statement must receive 314 at least 7 seconds of airtime. 315 (b) A facilitator may not market or advertise a refund 316 anticipation check without including the following statement 317 verbatim: “The [...name of product...] costs [...fee for refund 318 anticipation check...]. You will usually receive your refund in 319 the same amount of time without this fee if you use e-file and 320 direct deposit.” For print advertisements, the statement must be 321 printed in type size one-half as large as the largest type size 322 in the advertisement. For radio and television advertisements, 323 this statement must receive at least 7 seconds of airtime. 324 (10) REMEDIES.— 325 (a) Any violation of: 326 1. Any state law prohibiting unfair or deceptive acts or 327 practices by a facilitator or creditor constitutes a violation 328 of this section. 329 2. The federal Fair Debt Collection Practices Act, 15 330 U.S.C. s. 1692 et seq., by a facilitator or creditor constitutes 331 a violation of this section. 332 3. This section constitutes an unfair or deceptive act or 333 practice. 334 (b) A facilitator or creditor who fails to comply with any 335 provision of this section is liable to the consumer for: 336 1. Actual and consequential damages; 337 2. Statutory damages of $2,500, to be adjusted annually to 338 reflect changes in the Consumer Price Index, or three times the 339 amount of the refund anticipation loan fee or other unauthorized 340 charge, whichever is greater; and 341 3. Reasonable attorney's fees and costs. 342 (c) Any person may sue for injunctive or other appropriate 343 equitable relief to enforce this section. 344 (d) Any consumer may bring a class action suit to enforce 345 this section. In such class action, a facilitator or creditor 346 who fails to comply with any provision of this section is liable 347 to each class member as provided in this subsection. 348 (e) The remedies provided in this subsection are cumulative 349 and do not abrogate any other relief available under state or 350 federal law. 351 Section 2. This act shall take effect July 1, 2009.