Florida Senate - 2010 CS for SB 2086
By the Committee on Banking and Insurance; and Senator Richter
597-03653-10 20102086c1
1 A bill to be entitled
2 An act relating to consumer debt collection;
3 reordering and amending s. 559.55, F.S.; revising
4 definitions relating to the regulation of debt
5 collection practices; amending s. 559.551, F.S.;
6 conforming cross-references; amending s. 559.552,
7 F.S.; revising provisions relating to the relationship
8 between state and federal law; creating s. 559.5522,
9 F.S.; providing the powers of the Office of Financial
10 Regulation; creating s. 559.5524, F.S.; authorizing
11 the Financial Services Commission to adopt rules;
12 amending s. 559.553, F.S.; deleting all exemptions
13 from registration as a consumer collection agency;
14 amending s. 559.555, F.S.; revising procedures for
15 registering as a consumer collection agency;
16 increasing the registration fee; requiring background
17 screening of applicants and control persons; providing
18 grounds for registration issuance or denial; requiring
19 annual renewal; creating s. 559.5551, F.S.; providing
20 for registration renewal; creating s. 559.5554, F.S.;
21 requiring a licensee to obtain a surety bond and
22 provide proof of such bond to the office; creating s.
23 559.5556, F.S.; requiring a consumer collection agency
24 to maintain records; repealing s. 559.563, F.S.,
25 relating to void registrations; amending s. 559.565,
26 F.S.; increasing the fine against an unregistered
27 consumer collection agency and adding a fine against
28 certain debt collectors; providing that a violation of
29 provisions relating to consumer protection agencies
30 and debt collectors is actionable by the Attorney
31 General under the Florida Deceptive and Unfair Trade
32 Practices Act; providing for attorney’s fees and
33 costs; creating s. 559.566, F.S.; specifying how a
34 debt collector may communicate with a consumer;
35 amending s. 559.715, F.S.; conforming provisions to
36 changes made by the act; amending s. 559.72, F.S.;
37 revising prohibited acts, including violations of
38 communication procedures; specifying acts of
39 harassment; prohibiting a debt collector from acting
40 as a debt collector unless such person is an employee
41 or control person of a registered agency; adding
42 violations relating to prior criminal acts and failure
43 to conform with registration requirements; amending s.
44 559.725, F.S.; revising provisions relating to
45 consumer complaints about a consumer collection
46 agency; creating s. 559.726, F.S.; providing for the
47 issuance of subpoenas by the office; creating s.
48 559.727, F.S.; authorizing the office to issue cease
49 and desist orders; amending s. 559.730, F.S.; revising
50 provisions relating to administrative remedies;
51 increasing the maximum penalty; authorizing the office
52 to adopt rules relating to penalty guidelines;
53 deleting the 2-year limitation on bringing an
54 administrative action; amending s. 559.77, F.S.;
55 revising provisions relating to civil remedies;
56 revising the beginning date for a statute of
57 limitation; amending s. 559.78, F.S.; revising
58 provisions relating to judicial enforcement; amending
59 s. 559.785, F.S.; providing criminal penalties for
60 failure to obtain licensure; delaying the expiration
61 of certain registrations of consumer collection
62 agencies; providing effective dates.
63
64 Be It Enacted by the Legislature of the State of Florida:
65
66 Section 1. Section 559.55, Florida Statutes, is reordered
67 and amended to read:
68 559.55 Definitions.—As used in The following terms shall,
69 unless the context otherwise indicates, have the following
70 meanings for the purpose of this part, the term:
71 (1) “Commission” means the Financial Services Commission.
72 (7)(1) “Debt” or “consumer debt” means any obligation or
73 alleged obligation of a consumer to pay money arising out of a
74 transaction in which the money, property, insurance, or services
75 that which are the subject of the transaction are primarily for
76 personal, family, or household purposes, whether or not such
77 obligation has been reduced to judgment.
78 (3)(2) “Debtor” or “Consumer” means any natural person
79 obligated or allegedly obligated to pay any debt.
80 (6)(3) “Creditor” means any person who offers or extends
81 credit creating a debt or to whom a debt is owed, but does not
82 include a any person who receives to the extent that they
83 receive an assignment or transfer of a debt in default solely
84 for the purpose of facilitating the collection of such debt for
85 another.
86 (11)(4) “Office” means the Office of Financial Regulation
87 of the Financial Services Commission.
88 (2)(5) “Communication” means the conveying of information
89 regarding a debt, directly or indirectly, to any person through
90 any medium.
91 (8)(6) “Debt collector” means a any person who uses any
92 instrumentality of commerce within this state or the mails,
93 whether initiated from within or outside this state, in a any
94 business whose the principal purpose of which is the collection
95 of debts, or who regularly collects or attempts to collect,
96 directly or indirectly, debts owed or due or asserted to be owed
97 or due another. Notwithstanding paragraph (f), the term “debt
98 collector” includes a any creditor who, in the process of
99 collecting her or his own debts, uses any name other than her or
100 his own which indicates would indicate that a third person is
101 collecting or attempting to collect such debts. The term does
102 not include:
103 (a) An Any officer or employee of a creditor who while, in
104 the name of the creditor, collects collecting debts for such
105 creditor;
106 (b) A Any person while acting as a debt collector for
107 another person, both of whom are related by common ownership or
108 affiliated by corporate control, if the person acting as a debt
109 collector for persons to whom it is so related or affiliated and
110 if the principal business of such persons is not the collection
111 of debts;
112 (c) An Any officer or employee of any federal, state, or
113 local governmental body to the extent that collecting or
114 attempting to collect any debt is in the performance of her or
115 his official duties;
116 (d) A Any person while serving or attempting to serve legal
117 process on another any other person in connection with the
118 judicial enforcement of a any debt;
119 (e) A Any not-for-profit organization that which, at the
120 request of consumers, performs bona fide consumer credit
121 counseling and assists consumers in the liquidation of their
122 debts by receiving payments from such consumers and distributing
123 such payments amounts to creditors; or
124 (f) A Any person collecting or attempting to collect any
125 debt if owed or due or asserted to be owed or due another to the
126 extent that such activity is incidental to a bona fide fiduciary
127 obligation or a bona fide escrow arrangement; concerns a debt
128 that which was originated by such person; concerns a debt that
129 which was not in default at the time it was obtained by such
130 person; or concerns a debt obtained by such person as a secured
131 party in a commercial credit transaction involving the creditor;
132 or.
133 (g) An attorney licensed to practice law in this state who
134 is collecting a debt asserted to be owed or due another as an
135 ancillary matter to her or his representation of the debt
136 collector as a client.
137 (4)(7) “Consumer collection agency” means a any debt
138 collector or business entity, employing one or more debt
139 collectors, which is engaged in the business of soliciting
140 consumer debts for collection or of collecting consumer debts,
141 which debt collector or business is not expressly exempted as
142 set forth in s. 559.553(4).
143 (5) “Control person” means an individual, partnership,
144 corporation, trust, or other organization that possesses the
145 power, directly or indirectly, to direct the management or
146 policies of a company, whether through ownership of securities,
147 by contract, or otherwise. The term includes, but is not limited
148 to:
149 (a) A company’s executive officers, including the
150 president, chief executive officer, chief financial officer,
151 chief operations officer, chief legal officer, chief compliance
152 officer, director, or other individual having similar status or
153 functions.
154 (b) For a corporation, each shareholder who, directly or
155 indirectly, owns 10 percent or more, or who has the power to
156 vote 10 percent or more, of a class of voting securities unless
157 the applicant is a publicly traded company.
158 (c) For a partnership, all general partners and limited or
159 special partners who have contributed 10 percent or more, or who
160 have the right to receive upon dissolution 10 percent or more,
161 of the partnership’s capital.
162 (d) For a trust, each trustee.
163 (e) For a limited liability company, all managing members
164 and those members who have contributed 10 percent or more, or
165 who have the right to receive upon dissolution 10 percent or
166 more, of the partnership’s capital.
167 (8) “Out-of-state consumer debt collector” means any person
168 whose business activities in this state involve both collecting
169 or attempting to collect consumer debt from debtors located in
170 this state by means of interstate communication originating from
171 outside this state and soliciting consumer debt accounts for
172 collection from creditors who have a business presence in this
173 state. For purposes of this subsection, a creditor has a
174 business presence in this state if either the creditor or an
175 affiliate or subsidiary of the creditor has an office in this
176 state.
177 (9) “Federal Fair Debt Collection Practices Act” or
178 “Federal Act” means the federal legislation regulating fair debt
179 collection practices, as set forth in Pub. L. No. 95-109, as
180 amended and published in 15 U.S.C. ss. 1692 et seq.
181 (10) “Location information” means a consumer’s place of
182 residence and his or her telephone number, or the consumer’s
183 place of employment.
184 Section 2. Section 559.551, Florida Statutes, is amended to
185 read:
186 559.551 Short title.—This part Sections 559.55-559.785 may
187 be cited as the “Florida Consumer Collection Practices Act.”
188 Section 3. Section 559.552, Florida Statutes, is amended to
189 read:
190 559.552 Relationship of state and federal law.—Nothing in
191 This part does not shall be construed to limit or restrict the
192 continued applicability of the federal Fair Debt Collection
193 Practices Act to consumer collection practices in this state
194 and. This part is in addition to the requirements and
195 regulations of the federal act. If there is In the event of any
196 inconsistency between any provision of this part and any
197 provision of the federal act, the provision that which is more
198 protective of the consumer prevails or debtor shall prevail.
199 Section 4. Section 559.5522, Florida Statutes, is created
200 to read:
201 559.5522 Powers and duties of the Office of Financial
202 Regulation; fees.—
203 (1) The office is responsible for the administration and
204 enforcement of this part.
205 (2) The office may conduct an investigation of any person
206 if the office has reason to believe, upon complaint or
207 otherwise, that any violation of this part may have been
208 committed or is about to be committed.
209 (3) All fees, charges, and fines collected pursuant to this
210 part shall be deposited in the State Treasury to the credit of
211 the Regulatory Trust Fund under the office.
212 Section 5. Section 559.5524, Florida Statutes, is created
213 to read:
214 559.5524 Rules.—The commission may adopt rules to
215 administer this part, including rules:
216 (1) Requiring electronic submission of any forms,
217 documents, or fees required under this part.
218 (2) Establishing time periods during which an applicant for
219 registration is barred from registration or a registered
220 consumer collection agency is barred from renewal due to prior
221 criminal convictions of, or guilty or nolo contendere pleas by,
222 any of the applicant’s or registrant’s control persons,
223 regardless of adjudication.
224 (a) The rules must provide:
225 1. Permanent bars for felonies involving money laundering,
226 breach of trust, dishonesty, embezzlement, fraud, fraudulent
227 conversion, misappropriation of property, racketeering, or
228 theft;
229 2. A 15-year disqualifying period for felonies involving
230 moral turpitude;
231 3. A 7-year disqualifying period for all other felonies;
232 and
233 4. A 5-year disqualifying period for misdemeanors involving
234 fraud, dishonesty, or any other act of moral turpitude.
235 (b) The rules may provide for an additional waiting period
236 due to dates of imprisonment or community supervision, the
237 commitment of multiple crimes, and other factors reasonably
238 related to the applicant’s criminal history.
239 (c) The rules may provide for mitigating factors for crimes
240 identified in subparagraph (a)2. However, the mitigation may not
241 result in a period of disqualification less than 7 years. The
242 rule may not mitigate the disqualifying periods in subparagraphs
243 (a)1., (a)3., and (a)4.
244 (d) An applicant is not eligible for registration until the
245 expiration of the disqualifying period set by rule.
246 (e) Section 112.011 is not applicable to eligibility for
247 registration under this part.
248 Section 6. Section 559.553, Florida Statutes, is amended to
249 read:
250 559.553 Registration of consumer collection agencies
251 required; exemptions.—
252 (1) A After January 1, 1994, No person may not shall engage
253 in business in this state as a consumer collection agency or act
254 as, advertise, or hold themselves out as a consumer collection
255 agency continue to do business in this state as a consumer
256 collection agency without first registering in accordance with
257 this part, and thereafter maintaining a valid registration. This
258 applies to a consumer collection agency operating in this state
259 or from another state, regardless of whether such agency is
260 registered, licensed, or the equivalent in accordance with the
261 laws of another state.
262 (2) Each consumer collection agency doing business in this
263 state shall register with the office and renew such registration
264 annually as set forth in s. 559.555.
265 (3) A prospective registrant shall be entitled to be
266 registered when registration information is complete on its face
267 and the applicable registration fee has been paid; however, the
268 office may reject a registration submitted by a prospective
269 registrant if the registrant or any principal of the registrant
270 previously has held any professional license or state
271 registration which was the subject of any suspension or
272 revocation which has not been explained by the prospective
273 registrant to the satisfaction of the office either in the
274 registration information submitted initially or upon the
275 subsequent written request of the office. In the event that an
276 attempted registration is rejected by the office the prospective
277 registrant shall be informed of the basis for rejection.
278 (4) This section shall not apply to:
279 (a) Any original creditor.
280 (b) Any member of The Florida Bar.
281 (c) Any financial institution authorized to do business in
282 this state and any wholly owned subsidiary and affiliate
283 thereof.
284 (d) Any licensed real estate broker.
285 (e) Any insurance company authorized to do business in this
286 state.
287 (f) Any consumer finance company and any wholly owned
288 subsidiary and affiliate thereof.
289 (g) Any person licensed pursuant to chapter 520.
290 (h) Any out-of-state consumer debt collector who does not
291 solicit consumer debt accounts for collection from credit
292 grantors who have a business presence in this state.
293 (i) Any FDIC-insured institution or subsidiary or affiliate
294 thereof.
295 (5) Any out-of-state consumer debt collector as defined in
296 s. 559.55(8) who is not exempt from registration by application
297 of subsection (4) and who fails to register in accordance with
298 this part shall be subject to an enforcement action by the state
299 as specified in s. 559.565.
300 Section 7. Section 559.555, Florida Statutes, is amended to
301 read:
302 (Substantial rewording of section. See
303 s. 559.555, F.S., for present text.)
304 559.555 Registration of consumer collection agency.—
305 (1) Effective April 1, 2011, each person who acts as a
306 consumer collection agency must be registered in accordance with
307 this section.
308 (2) In order to apply for registration, an applicant must
309 submit:
310 (a) A completed registration application form as prescribed
311 by commission rule which includes the name and principal
312 business address and e-mail address of the consumer collection
313 agency.
314 (b) A nonrefundable registration fee of $600. The
315 registration fee is nonrefundable and may not be prorated for a
316 partial year of registration.
317 (c) Fingerprints for the applicant and each of the
318 applicant’s control persons in accordance with rules adopted by
319 the commission.
320 1. The fingerprints may be submitted to the office, or a
321 vendor acting on behalf of the office.
322 2. The office may contract with a third-party vendor to
323 provide live-scan fingerprinting in lieu of a paper fingerprint
324 card.
325 3. A state criminal history background check must be
326 conducted through the Department of Law Enforcement, and a
327 federal criminal history background check must be conducted
328 through the Federal Bureau of Investigation.
329 4. All fingerprints submitted to the Department of Law
330 Enforcement must be submitted electronically and entered into
331 the statewide automated fingerprint identification system
332 established in s. 943.05(2)(b) and available for use in
333 accordance with s. 943.05(2)(g) and (h). The office shall pay an
334 annual fee to the department to participate in the system and
335 inform the department of any person whose fingerprints are no
336 longer required to be retained.
337 5. The costs of fingerprint processing, including the cost
338 of retaining the fingerprints, shall be borne by the person
339 subject to the background check.
340 6. The office is responsible for reviewing the results of
341 the state and federal criminal history checks and determining
342 whether the applicant meets registration requirements.
343 (d) Documentation demonstrating that the surety bond
344 requirements specified in s. 559.5554 have been satisfied.
345 (e) Additional information or documentation requested by
346 the office and required by rule concerning the applicant or a
347 control person of the applicant. Additional information may
348 include documentation of pending and prior disciplinary and
349 criminal history events, including arrest reports and certified
350 copies of charging documents, plea agreements, judgments and
351 sentencing documents, documents relating to pretrial
352 intervention, orders terminating probation or supervised
353 release, final administrative agency orders, or other comparable
354 documents that may provide the office with the appropriate
355 information to determine eligibility for registration.
356 (3) An application is considered received for the purposes
357 of s. 120.60 upon the office’s receipt of the completed
358 application form, required documentation, criminal history
359 information, the registration application fee, and all
360 applicable fingerprinting processing fees.
361 (4) The office shall issue a consumer collection agency
362 registration to each applicant who is not otherwise ineligible
363 and who meets the requirements of this section. However, it is a
364 ground for denial of registration if the applicant or one of the
365 applicant’s control persons:
366 (a) Has been found guilty of, regardless of adjudication,
367 or has entered a plea of nolo contendere or guilty to, any
368 felony, any crime involving racketeering, fraud, theft,
369 embezzlement, fraudulent conversion, misappropriation of
370 property, breach of trust, dishonesty, or any other act of moral
371 turpitude;
372 (b) Has committed any violation specified in s. 559.72;
373 (c) Is the subject of a pending felony criminal prosecution
374 or a prosecution or an administrative enforcement action, in any
375 jurisdiction, which involves racketeering, fraud, embezzlement,
376 fraudulent conversion, misappropriation of property, theft,
377 dishonesty, breach of trust, or any other act of moral
378 turpitude;
379 (d) Pays the office any fee, fine, or other amount with a
380 check or electronic transmission of funds which fails to clear
381 the applicant’s financial institution;
382 (e) Makes a material misstatement on any form, document, or
383 record required to be submitted under this part or the rules of
384 the commission; or
385 (f) Has been the subject of any decision, finding,
386 injunction, suspension, prohibition, revocation, denial,
387 judgment, or other adverse action by any state or federal
388 agency.
389 (5) A registration issued under this section expires
390 annually on March 31 unless canceled, suspended, revoked, or
391 otherwise terminated, and must be renewed as provided under s.
392 559.5551.
393 Section 8. Section 559.5551, Florida Statutes, is created
394 to read:
395 559.5551 Registration renewal.—
396 (1) To renew a consumer collection agency registration, the
397 agency must submit:
398 (a) A completed registration renewal form as prescribed by
399 commission rule.
400 (b) Fingerprints in accordance with s. 559.555 for any new
401 control persons who have not previously been screened.
402 (c) Any additional information or documentation requested
403 by the office and required by rule concerning the registrant or
404 control person of the registrant. Additional information may
405 include documentation of any pending and prior disciplinary and
406 criminal history events, including arrest reports and certified
407 copies of charging documents, plea agreements, judgments and
408 sentencing documents, documents relating to pretrial
409 intervention, orders terminating probation or supervised
410 release, final administrative agency orders, or other comparable
411 documents that may provide the office with the appropriate
412 information to determine edibility for renewal of registration.
413 (d) A nonrefundable renewal fee of $600 and nonrefundable
414 fee to cover the cost of further fingerprint processing and
415 retention as set forth in commission rule.
416 (2) The office may not renew a consumer collection agency
417 registration unless the registrant continues to meet the minimum
418 requirements for initial registration under s. 559.555 and
419 adopted rule.
420 Section 9. Section 559.5554, Florida Statutes, is created
421 to read:
422 559.5554 Surety bond.—
423 (1) Pursuant to an application for registration and renewal
424 under this part, an applicant must obtain and maintain a surety
425 bond from a surety company authorized to do business in this
426 state. The amount and form of the bond shall be specified by
427 rule and must be at least $50,000 but may not exceed $1 million.
428 The rule must provide allowances for business volume. The bond
429 shall be in favor of the state for the use and benefit of any
430 consumer who suffers or sustains any loss or damage by reason of
431 any violation of this part.
432 (2) Pursuant to initial registration and renewal, each
433 applicant shall furnish to the office:
434 (a) The original executed surety bond issued by a surety
435 company authorized to do business in this state.
436 (b) A statement from the surety company that the premium
437 for the bond has been paid in full by the applicant.
438 (c) A statement from the surety company that the bond
439 issued by the surety company meets the requirements of this
440 part.
441 (3) The liability of the surety company under any bond
442 issued pursuant to this section may not, in the aggregate,
443 exceed the amount of the bond regardless of the number or amount
444 of any claims filed or which might be asserted against the
445 surety on such bond. If multiple claims are filed which
446 collectively exceed the amount of the bond, the surety may pay
447 the full amount of the bond to the office and is not further
448 liable under the bond. The office shall hold such funds for
449 distribution to claimants and administratively determine and pay
450 to each claimant a pro rata share of each valid claim made
451 within 6 months after the date the first claim is filed against
452 the surety.
453 Section 10. Section 559.5556, Florida Statutes, is created
454 to read:
455 559.5556 Maintenance of records.—
456 (1) Each registered consumer collection agency shall
457 maintain, at the principal place of business designated on the
458 registration, all books, accounts, records, and documents
459 necessary to determine the registrant’s compliance with this
460 part.
461 (2) The office may authorize the maintenance of records at
462 a location other than a principal place of business. The office
463 may require books, accounts, and records to be produced and
464 available at a reasonable and convenient location in this state.
465 (3) The commission may prescribe by rule the minimum
466 information to be shown in the books, accounts, records, and
467 documents of registrants so that such records enable the office
468 to determine the registrant’s compliance with this part.
469 (4) All books, accounts, records, documents, and receipts
470 of any debt collection transaction must be preserved and kept
471 available for inspection by the office for at least 5 years
472 after the date the transaction is completed. The commission may
473 prescribe by rule requirements for the destruction of books,
474 accounts, records, and documents retained by the registrant
475 after the completion of the 5 years.
476 Section 11. Section 559.563, Florida Statutes, is repealed.
477 Section 12. Section 559.565, Florida Statutes, is amended
478 to read:
479 (Substantial rewording of section. See
480 s. 559.565, F.S., for present text.)
481 559.565 Additional enforcement remedies.—The remedies
482 provided in this section are cumulative to other enforcement and
483 sanctions provided under this part for any violation of this
484 part by a consumer collection agency or a debt collector.
485 (1) A consumer collection agency that is required to be
486 registered under this part and that collects or attempts to
487 collect consumer debts without being registered, or a debt
488 collector who violates s. 559.72(1)(n), is subject to an
489 administrative fine of up to $25,000, plus reasonable attorney’s
490 fees and court costs, in any successful action by the state to
491 collect such fine.
492 (2) A violation of this part is actionable by the Attorney
493 General as a violation of the Florida Deceptive and Unfair Trade
494 Practices Act and such violations are subject to the enforcement
495 remedies and penalties under part II of chapter 501. The
496 Attorney General may recover attorney’s fees and costs resulting
497 from such actions.
498 Section 13. Section 559.566, Florida Statutes, is created
499 to read:
500 559.566 Communication.—
501 (1) In the course of any communication by a debt collector
502 with any person other than the consumer for the purpose of
503 acquiring location information about the consumer, the debt
504 collector must:
505 (a) Identify himself or herself, state that he or she is
506 confirming or correcting location information concerning the
507 consumer, and, only if expressly requested, identify his or her
508 employer;
509 (b) Not state that such consumer owes any debt;
510 (c) Not communicate with such person more than once unless
511 requested to do so by such person or unless the debt collector
512 reasonably believes that the earlier response of such person is
513 erroneous or incomplete and that such person now has correct or
514 complete location information;
515 (d) Not communicate by post card; and
516 (e) Not use any language or symbol on any envelope or in
517 the contents of any communication effected by the mails or
518 telegram which indicates that the debt collector is in the debt
519 collection business or that the communication relates to the
520 collection of a debt.
521 (2) Without the prior consent of the consumer given
522 directly to the debt collector or pursuant to express court
523 permission, a debt collector may not communicate with a consumer
524 in connection with the collection of any debt:
525 (a) At any unusual time or place or a time or place that is
526 known or should be known to be inconvenient to the consumer. In
527 the absence of knowledge to the contrary, a debt collector shall
528 assume that the convenient time for communicating with a
529 consumer is after 8 a.m. and before 9 p.m. local time at the
530 consumer’s location.
531 1. A debt collector may presume that the time a telephone
532 call is received conforms to the local time zone assigned to the
533 area code of the number called, unless the debt collector
534 reasonably believe that the consumer’s telephone is located in a
535 different time zone.
536 2. If, such as with toll-free numbers, an area code is not
537 assigned to a specific geographic area, a debt collector may
538 presume that the time a telephone call is received conforms to
539 the local time zone of the consumer’s last known place of
540 residence, unless the debt collector reasonably believes that
541 the consumer’s telephone is located in a different time zone;
542 (b) If the debt collector knows the consumer is represented
543 by an attorney with respect to such debt and has knowledge of,
544 or can readily ascertain, such attorney’s name and address;
545 however, the debt collector may communicate with the consumer if
546 the attorney fails to respond within 30 days after receiving a
547 written communication from the debt collector regarding the debt
548 or the attorney consents to direct communication with the
549 consumer; or
550 (c) At the consumer’s place of employment if the debt
551 collector knows or has reason to know that the consumer’s
552 employer prohibits the consumer from receiving such
553 communication at his or her place of employment.
554 (3) Except as provided in subsection (1), without the prior
555 consent of the consumer given directly to the debt collector,
556 pursuant to express court permission, or as reasonably necessary
557 to effectuate a postjudgment judicial remedy, a debt collector
558 may not communicate with any person other than a consumer, his
559 or her attorney, a consumer reporting agency if otherwise
560 permitted by law, the creditor, the attorney of the creditor, or
561 the attorney of the debt collector in connection with the
562 collection of a debt.
563 (4) If a consumer notifies a debt collector in writing that
564 the consumer refuses to pay a debt or that the consumer wishes
565 the debt collector to cease further communication with the
566 consumer, the debt collector may not communicate further with
567 the consumer with respect to such debt, except to:
568 (a) Advise the consumer that the debt collector’s further
569 efforts are being terminated;
570 (b) Notify the consumer that the debt collector or creditor
571 may invoke specified remedies that are ordinarily invoked by
572 such debt collector or creditor; or
573 (c) Notify the consumer that the debt collector or creditor
574 intends to invoke a specified remedy, where applicable. If such
575 notice from the consumer is made by mail, notification is
576 complete upon receipt.
577 (5) For the purpose of this section, the term “consumer”
578 includes the consumer’s spouse, guardian, executor, or
579 administrator, or, if the consumer is a minor, a parent.
580 Section 14. Section 559.715, Florida Statutes, is amended
581 to read:
582 559.715 Assignment of consumer debts.—This part does not
583 prohibit the assignment, by a creditor, of the right to bill and
584 collect a consumer debt. However, the assignee must give the
585 consumer debtor written notice of such assignment within 30 days
586 after the assignment. The assignee is a real party in interest
587 and may bring an action in a court of competent jurisdiction to
588 collect a debt that has been assigned to the such assignee and
589 is in default.
590 Section 15. Section 559.72, Florida Statutes, is amended to
591 read:
592 559.72 Prohibited practices generally.—
593 (1) In collecting consumer debts, a debt collector may not
594 no person shall:
595 (a) Violate the communication requirements of s. 559.566.
596 (b)(1) Simulate in any manner a law enforcement officer or
597 a representative of any governmental agency.;
598 (2) Use or threaten force or violence;
599 (c)(3) Tell a consumer debtor who disputes a consumer debt
600 that she or he or any person employing her or him will disclose
601 to another, orally or in writing, directly or indirectly,
602 information affecting the consumer’s debtor’s reputation for
603 credit worthiness without also informing the consumer debtor
604 that the existence of the dispute will also be disclosed as
605 required by paragraph (f). subsection (6);
606 (d)(4) Communicate or threaten to communicate with a
607 consumer’s debtor’s employer before prior to obtaining final
608 judgment against the consumer debtor, unless the consumer debtor
609 gives her or his permission in writing to contact her or his
610 employer or acknowledges in writing the existence of the debt
611 after the debt has been placed for collection. However, but this
612 does shall not prohibit a person from telling the consumer
613 debtor that her or his employer will be contacted if a final
614 judgment is obtained.;
615 (e)(5) Disclose to a person other than the consumer debtor
616 or her or his family information affecting the consumer’s
617 debtor’s reputation, whether or not for credit worthiness, with
618 knowledge or reason to know that the other person does not have
619 a legitimate business need for the information or that the
620 information is false.;
621 (f)(6) Disclose information concerning the existence of a
622 debt known to be reasonably disputed by the consumer debtor
623 without disclosing that fact. If a disclosure is made before
624 prior to such reasonable dispute has having been asserted and
625 written notice is received from the consumer debtor that any
626 part of the debt is disputed, and if such dispute is reasonable,
627 the person who made the original disclosure must shall reveal
628 upon the request of the consumer debtor within 30 days the
629 details of the dispute to each person to whom disclosure of the
630 debt without notice of the dispute was made within the preceding
631 90 days.;
632 (g) Engage in any conduct the natural consequence of which
633 is to harass, oppress, or abuse any person in connection with
634 the collection of a debt, which includes, but is not limited to:
635 1. The use or threat of the use of violence or other
636 criminal means to harm the physical person, reputation, or
637 property of any person.
638 2. The use of obscene or profane language or language the
639 natural consequence of which is to abuse the hearer or reader.
640 3. The publication of a list of consumers who allegedly
641 refuse to pay debts, except to a consumer reporting agency.
642 4. The advertisement for sale of any debt to coerce payment
643 of the debt.
644 5. Causing a telephone to ring or engaging any person in
645 telephone conversation repeatedly or continuously with intent to
646 annoy, abuse, or harass any person at the called number.
647 6. Except as provided in s. 559.566(1), the placement of
648 telephone calls without meaningful disclosure of the caller’s
649 identity.
650 (7) Willfully communicate with the debtor or any member of
651 her or his family with such frequency as can reasonably be
652 expected to harass the debtor or her or his family, or willfully
653 engage in other conduct which can reasonably be expected to
654 abuse or harass the debtor or any member of her or his family;
655 (8) Use profane, obscene, vulgar, or willfully abusive
656 language in communicating with the debtor or any member of her
657 or his family;
658 (h)(9) Claim, attempt, or threaten to enforce a debt when
659 such person knows that the debt is not legitimate, or assert the
660 existence of some other legal right when such person knows that
661 the right does not exist.;
662 (i)(10) Use a communication that which simulates in any
663 manner legal or judicial process or that which gives the
664 appearance of being authorized, issued, or approved by a
665 government, governmental agency, or attorney at law, when it is
666 not.;
667 (j)(11) Communicate with a consumer debtor under the guise
668 of an attorney by using the stationery of an attorney or forms
669 or instruments that which only attorneys are authorized to
670 prepare.;
671 (k)(12) Orally communicate with a consumer debtor in such a
672 manner as to give the false impression or appearance that such
673 person is or is associated with an attorney.;
674 (13) Advertise or threaten to advertise for sale any debt
675 as a means to enforce payment except under court order or when
676 acting as an assignee for the benefit of a creditor;
677 (14) Publish or post, threaten to publish or post, or cause
678 to be published or posted before the general public individual
679 names or any list of names of debtors, commonly known as a
680 deadbeat list, for the purpose of enforcing or attempting to
681 enforce collection of consumer debts;
682 (l)(15) Refuse to provide adequate identification of
683 herself or himself or her or his employer or other entity whom
684 she or he represents when requested to do so by a consumer
685 debtor from whom she or he is collecting or attempting to
686 collect a consumer debt.;
687 (16) Mail any communication to a debtor in an envelope or
688 postcard with words typed, written, or printed on the outside of
689 the envelope or postcard calculated to embarrass the debtor. An
690 example of this would be an envelope addressed to “Deadbeat,
691 Jane Doe” or “Deadbeat, John Doe”;
692 (17) Communicate with the debtor between the hours of 9
693 p.m. and 8 a.m. in the debtor’s time zone without the prior
694 consent of the debtor;
695 (18) Communicate with a debtor if the person knows that the
696 debtor is represented by an attorney with respect to such debt
697 and has knowledge of, or can readily ascertain, such attorney’s
698 name and address, unless the debtor’s attorney fails to respond
699 within a reasonable period of time to a communication from the
700 person, unless the debtor’s attorney consents to a direct
701 communication with the debtor, or unless the debtor initiates
702 the communication; or
703 (m)(19) Cause a consumer to be charged charges to be made
704 to any debtor for communications by concealing concealment of
705 the true purpose of the communication, including collect
706 telephone calls and telegram fees.
707 (n) Act as a debt collector unless he or she is an employee
708 or a control person of a consumer collection agency registered
709 under this part.
710 (2) The office may take any actions permitted under s.
711 559.730 if the consumer collection agency:
712 (a) Has been found guilty of, regardless of adjudication,
713 or has entered a plea of nolo contendere or guilty to, any
714 felony, any crime involving racketeering, fraud, breach of
715 trust, theft, embezzlement, fraudulent conversion,
716 misappropriation of property, dishonesty, or any other acts of
717 moral turpitude.
718 (b) Fails to maintain the surety bond required pursuant to
719 s. 559.5554.
720 (c) Fails to maintain books, records, or other documents
721 required by this part and the rules of the commission.
722 (d) Fails to permit an investigation of books and records
723 by the office, or fails to comply with an office subpoena or
724 subpoena duces tecum.
725 (e) Fails to report on a form prescribed by commission rule
726 any change to information contained in any initial application
727 form or any amendment to the application within 30 days after
728 the change is effective.
729 (f) Fails to comply with any rule or order adopted pursuant
730 to this part, or any written agreement entered into with the
731 office.
732 (g) Fails to comply with, or violates, any other provision
733 of this part.
734 (h) Pays the office any fee, fine, or other amount with a
735 check or electronic transmission of funds which fails to clear
736 the applicant’s or registrant’s financial institution.
737 (i) Makes a material misstatement on any form, document, or
738 record required to be submitted under this part or the rules of
739 the commission.
740 (j) Has been the subject of any decision, finding,
741 injunction, suspension, prohibition, revocation, denial,
742 judgment, or other adverse action by any state or federal
743 agency.
744 (3) A violation of this section by a control person,
745 employee, or agent of a consumer collection agency shall be
746 treated as a violation by the consumer collection agency.
747 Section 16. Section 559.725, Florida Statutes, is amended
748 to read:
749 559.725 Consumer complaints; administrative duties.—
750 (1) The office division of Consumer Services of the
751 department of Financial Services shall receive and maintain
752 serve as the registry for receiving and maintaining records of
753 inquiries, correspondence, and complaints from consumers
754 concerning any and all persons who collect debts, including
755 consumer collection agencies.
756 (2) The division shall classify complaints by type and
757 identify the number of written complaints against persons
758 collecting or attempting to collect debts in this state,
759 including credit grantors collecting their own debts, debt
760 collectors generally, and, specifically, consumer collection
761 agencies as distinguished from other persons who collect debts
762 such as commercial debt collection agencies regulated under part
763 V of this chapter. The division shall identify the nature and
764 number of various kinds of written complaints, including
765 specifically those alleging violations of s. 559.72.
766 (2)(3) The office division shall inform and furnish
767 relevant information to the appropriate regulatory body of the
768 state or the Federal Government, or The Florida Bar in the case
769 of attorneys, if a person when any consumer debt collector
770 exempt from registration under this part has been named in a
771 five or more written consumer complaint complaints alleging
772 violations of s. 559.72 within a 12-month period.
773 (4) The division shall furnish a form to each complainant
774 whose complaint concerns an alleged violation of s. 559.72 by a
775 consumer collection agency. Such form may be filed with the
776 office. The form shall identify the accused consumer collection
777 agency and provide for the complainant’s summary of the nature
778 of the alleged violation and facts which allegedly support the
779 complaint. The form shall include a provision for the
780 complainant to state under oath before a notary public that the
781 allegations therein made are true.
782 (5) Upon receipt of such sworn complaint, the office shall
783 promptly furnish a copy of the sworn complaint to the accused
784 consumer collection agency.
785 (3)(6) The office shall investigate sworn complaints by
786 direct written communication with the complainant and the
787 affected consumer collection agency. In addition, the office
788 shall attempt to resolve each sworn complaint and shall record
789 the resolution of such complaints.
790 (7) Periodically, the office shall identify consumer
791 collection agencies that have unresolved sworn consumer
792 complaints from five or more different consumers within a 12
793 month period under the provisions of this part.
794 (8) The office shall issue a written warning notice to the
795 accused consumer collection agency if the office is unable to
796 resolve all such sworn complaints and fewer than five unresolved
797 complaints remain. Such notice shall include a statement that
798 the warning may constitute evidence in any future investigation
799 of similar complaints against that agency and in any future
800 administrative determination of the imposition of other
801 administrative remedies available to the office under this part.
802 (9) The office may issue a written reprimand when five or
803 more such unresolved sworn complaints against a consumer
804 collection agency collectively fall short of constituting
805 apparent repeated violations that warrant more serious
806 administrative sanctions. Such reprimand shall include a
807 statement that the reprimand may constitute evidence in any
808 future investigation of similar complaints against that agency
809 and in any future administrative determination of the imposition
810 of other administrative remedies available to the office.
811 (10) The office shall issue a notice of intent either to
812 revoke or suspend the registration or to impose an
813 administrative fine when the office preliminarily determines
814 that repeated violations of s. 559.72 by an accused registrant
815 have occurred which would warrant more serious administrative
816 sanctions being imposed under this part. The office shall advise
817 each registrant of the right to require an administrative
818 hearing under chapter 120, prior to the agency’s final action on
819 the matter as authorized by s. 559.730.
820 (4)(11) The office shall advise the appropriate state
821 attorney, or the Attorney General in the case of an out-of-state
822 consumer debt collector, of any determination by the office of a
823 violation of the requirements of this part by any consumer
824 collection agency that which is not registered as required by
825 this part. The office shall furnish the state attorney or
826 Attorney General with the office’s information concerning the
827 alleged violations of such requirements.
828 (5) A registered consumer collection agency must provide a
829 written response to the office within 20 days after receipt of a
830 written request from the office for information concerning a
831 consumer complaint. The response must address the issues and
832 allegations raised in the complaint. The office may impose an
833 administrative fine of up to $2,500 per request per day upon any
834 registrant that fails to comply with this subsection.
835 Section 17. Section 559.726, Florida Statutes, is created
836 to read:
837 559.726 Subpoenas.—
838 (1) The office may:
839 (a) Issue and serve subpoenas and subpoenas duces tecum to
840 compel the attendance of witnesses and the production of all
841 books, accounts, records, and other documents and materials
842 relevant to an investigation conducted by the office. The
843 office, or its authorized representative, may administer oaths
844 and affirmations to any person.
845 (b) Seek subpoenas or subpoenas duces tecum from any court
846 to command the appearance of witnesses and the production of
847 books, accounts, records, and other documents or materials at a
848 time and place named in the subpoenas, and an authorized
849 representative of the office may serve such subpoenas.
850 (2) If there is substantial noncompliance with a subpoena
851 or subpoena duces tecum issued by the office, the office may
852 petition the court in the county where the person subpoenaed
853 resides or has his or her principal place of business for an
854 order requiring the person to appear, testify, or produce such
855 books, accounts, records, and other documents as are specified
856 in the subpoena or subpoena duces tecum.
857 (3) The office is entitled to the summary procedure
858 provided in s. 51.011, and the court shall advance such cause on
859 its calendar. Attorney’s fees and any other costs incurred by
860 the office to obtain an order granting, in whole or in part, a
861 petition for enforcement of a subpoena or subpoena duces tecum
862 shall be taxed against the subpoenaed person, and failure to
863 comply with such order is a contempt of court.
864 (4) To aid in the enforcement of this part, the office may
865 require or permit a person to file a statement in writing, under
866 oath, or otherwise as the office determines, as to all the facts
867 and circumstances concerning the matter to be investigated.
868 Section 18. Section 559.727, Florida Statutes, is created
869 to read:
870 559.727 Cease and desist orders.—The office may issue and
871 serve upon any person an order to cease and desist and to take
872 corrective action if it has reason to believe the person is
873 violating, has violated, or is about to violate any provision of
874 this part, any rule or order issued under this part, or any
875 written agreement between the person and the office. All
876 procedural matters relating to issuance and enforcement of such
877 order are governed by the Administrative Procedure Act.
878 Section 19. Section 559.730, Florida Statutes, is amended
879 to read:
880 559.730 Administrative remedies.—
881 (1) The office may impose an administrative fine against,
882 or revoke or suspend the registration of a any registrant under
883 this part who has committed a violation of engaged in repeated
884 violations which establish a clear pattern of abuse of
885 prohibited collection practices under s. 559.72. Final office
886 action to fine, suspend, or revoke or suspend the registration
887 of a any registrant is shall be subject to review in accordance
888 with chapter 120 in the same manner as revocation of a license.
889 The repeated violations of the law by one employee shall not be
890 grounds for revocation or suspension of the registration of the
891 employing consumer collection agency, unless the employee is
892 also the owner of a majority interest in the collection agency.
893 (2) The registration of a registrant shall not be revoked
894 or suspended if the registrant shows by a preponderance of the
895 evidence that the violations were not intentional and resulted
896 from bona fide error notwithstanding the maintenance of
897 procedures reasonably adapted to avoid any such error.
898 (3) The office shall consider the number of complaints
899 against the registrant in relation to the accused registrant’s
900 volume of business when determining whether suspension or
901 revocation is the more appropriate sanction when circumstances
902 warrant that one or the other should be imposed upon a
903 registrant.
904 (2)(4) The office may shall impose suspension rather than
905 revocation of a registration if when circumstances warrant that
906 one or the other should be imposed upon a registrant and the
907 accused registrant demonstrates that the registrant has taken
908 affirmative steps that which can be expected to effectively
909 eliminate the repeated violations and that the registrant’s
910 registration has never been previously been suspended.
911 (3)(5) In addition to, or in lieu of suspension or
912 revocation of a registration, the office may impose an
913 administrative fine of up to $25,000 per violation $1,000
914 against a the offending registrant as a sanction for repeated
915 violations of the provisions of s. 559.72 when violations do not
916 rise to the level of misconduct governed by subsection (1). The
917 office shall adopt rules establishing guidelines for imposing
918 administrative penalties. Final office action to impose an
919 administrative fine shall be subject to review in accordance
920 with ss. 120.569 and 120.57.
921 (6) Any administrative fine imposed under this part shall
922 be payable to the office. The office shall maintain an
923 appropriate record and shall deposit such fine into the
924 Regulatory Trust Fund of the office.
925 (7) An administrative action by the office to impose
926 revocation, suspension, or fine shall be brought within 2 years
927 after the date of the last violation upon which the action is
928 founded.
929 (4)(8) Nothing in This part does not shall be construed to
930 preclude any person from pursuing remedies available under the
931 Federal Fair Debt Collection Practices Act for any violation of
932 such act, including specifically against any person who is
933 exempt from the registration provisions of this part.
934 Section 20. Section 559.77, Florida Statutes, is amended to
935 read:
936 559.77 Civil remedies.—
937 (1) A consumer debtor may bring a civil action against a
938 debt collector or consumer collection agency, or both, for a
939 debt collector’s violation person violating the provisions of s.
940 559.72(1) 559.72 in a court of competent jurisdiction of the
941 county in which the alleged violator resides or has his or her
942 principal place of business or in the county wherein the alleged
943 violation occurred.
944 (2) Upon adverse adjudication, the defendant is shall be
945 liable for actual damages and for additional statutory damages
946 of up to $1,000, together with court costs and reasonable
947 attorney’s fees incurred by the plaintiff. In determining the
948 defendant’s liability for any additional statutory damages, the
949 court shall consider the nature of the defendant’s noncompliance
950 with s. 559.72(1) 559.72, the frequency and persistence of such
951 noncompliance, and the extent to which such noncompliance was
952 intentional. In a any class action lawsuit brought under this
953 section, the court may award additional statutory damages of up
954 to $1,000 for each named plaintiff and an aggregate award of
955 additional statutory damages up not to exceed the lesser of
956 $500,000 or 1 percent of the defendant’s net worth for all
957 remaining class members; however, the, but in no event may this
958 aggregate award may not provide an individual class member with
959 additional statutory damages in excess of $1,000. The court may,
960 in its discretion, award punitive damages and may provide such
961 equitable relief as it deems necessary or proper, including
962 enjoining the defendant from further violations of this part. If
963 the court finds that the suit fails to raise a justiciable issue
964 of law or fact, the plaintiff is shall be liable for court costs
965 and reasonable attorney’s fees incurred by the defendant.
966 (3) A person may shall not be held liable in any action
967 brought under this section if the person shows by a
968 preponderance of the evidence that the violation was not
969 intentional and resulted from a bona fide error, notwithstanding
970 the maintenance of procedures reasonably adapted to avoid any
971 such error.
972 (4) An action brought under this section must be commenced
973 within 2 years after the date of the last violation upon which
974 the action is founded on which the alleged violation occurred.
975 (5) In applying and construing this section, due
976 consideration and great weight shall be given to the
977 interpretations of the Federal Trade Commission and the federal
978 courts relating to the federal Fair Debt Collection Practices
979 Act.
980 Section 21. Section 559.78, Florida Statutes, is amended to
981 read:
982 559.78 Judicial enforcement.—In addition to other penalties
983 provided under in this part, state attorneys and their
984 assistants may are authorized to apply to the court of competent
985 jurisdiction within their respective jurisdictions, upon the
986 sworn affidavit of any person alleging a violation of any of the
987 provisions of this part. Such court shall have jurisdiction,
988 upon hearing and for cause shown, to grant a temporary or
989 permanent injunction restraining any person from violating any
990 provision of this part, whether or not there exists an adequate
991 remedy at law,; and such injunction, suspension, or revocation
992 shall issue without bond.
993 Section 22. Section 559.785, Florida Statutes, is amended
994 to read:
995 559.785 Criminal penalty.—It is a felony of the third shall
996 be a misdemeanor of the first degree, punishable as provided in
997 s. 775.082, or s. 775.083, or s. 775.084, for any person not
998 exempt from registering as provided in this part to engage in
999 collecting consumer debts in this state without first
1000 registering with the office, or to register or attempt to
1001 register by means of fraud, misrepresentation, or concealment.
1002 Section 23. Expiration of registrations.—
1003 (1) Effective October 1, 2010, notwithstanding s.
1004 559.555(3), Florida Statutes, or any other provision of this
1005 act, all current registrations of consumer collection agencies
1006 issued by the Office of Financial Regulation which are due to
1007 expire between October 1 and December 31, 2010, shall
1008 permanently expire March 31, 2011. No renewals of such
1009 registrations are permitted.
1010 (2) Effective January 1, 2011, notwithstanding s.
1011 559.555(5), Florida Statutes, as amended by this act, all
1012 registrations issued between January 1, 2011, and March 31,
1013 2011, expire March 31, 2012.
1014 Section 24. Except as otherwise expressly provided in this
1015 act and except for this section, which shall take effect October
1016 1, 2010, this act shall take effect January 1, 2011.