Florida Senate - 2018                       CS for CS for SB 920
       
       
        
       By the Committees on Appropriations; and Commerce and Tourism;
       and Senators Bradley and Braynon
       
       
       
       
       576-03292-18                                           2018920c2
    1                        A bill to be entitled                      
    2         An act relating to consumer finance; amending s.
    3         559.715, F.S.; revising a requirement for an assignee
    4         of the right to bill and collect a consumer debt to
    5         give the debtor written notice of the assignment;
    6         amending s. 560.402, F.S.; providing and revising
    7         definitions; amending s. 560.404, F.S.; specifying the
    8         maximum face amount of checks that may be taken for
    9         deferred presentment installment transactions,
   10         exclusive of fees; specifying the maximum rate and
   11         frequency of fees that deferred presentment providers
   12         or their affiliates may charge on deferred presentment
   13         installment transactions; specifying when fees are
   14         earned for certain deferred presentment transactions;
   15         specifying the calculation of fees earned for deferred
   16         presentment installment transactions; prohibiting
   17         prepayment penalties; specifying the minimum and
   18         maximum terms of a deferred presentment installment
   19         transaction; specifying dates that checks must bear;
   20         authorizing providers of deferred presentment
   21         installment transactions to accept additional checks
   22         subject to certain limitations; requiring the deferred
   23         presentment agreement to include the deferment period
   24         applicable to each check; correcting a reference to
   25         federal law; providing an exception to a prohibition
   26         against the acceptance or holding of undated checks or
   27         checks with certain dates by a deferred presentment
   28         provider or its affiliate; conforming a cross
   29         reference; providing a verification process that may
   30         be relied upon under certain conditions; revising a
   31         notice in deferred presentment agreements; authorizing
   32         a drawer to inform a provider in writing that the
   33         drawer cannot redeem or pay in full the amount due and
   34         owing to the provider; providing an exception to a
   35         prohibition, under certain circumstances, against a
   36         deferred presentment provider’s deposit or presentment
   37         of a drawer’s check; requiring a provider of a
   38         deferred presentment installment transaction to allow
   39         a drawer to defer one scheduled payment under certain
   40         circumstances; providing requirements for the deferred
   41         payment; specifying the frequency a certain fee may be
   42         imposed by Financial Services Commission rule for data
   43         on certain transactions submitted by deferred
   44         presentment providers to a certain database; providing
   45         an exception to a limitation on a deferred presentment
   46         provider’s acceptance of a certain check or
   47         authorization; specifying requirements for
   48         amortization, installment repayments, and the
   49         calculation of charges for deferred presentment
   50         installment transactions; conforming provisions to
   51         changes made by the act; amending s. 560.405, F.S.;
   52         providing an exception to a prohibition against a
   53         deferred presentment provider’s or its affiliate’s
   54         presentment of a drawer’s check before the end of the
   55         deferment period; revising a condition under which a
   56         deferred presentment provider may allow the check to
   57         be redeemed in lieu of presentment; revising a
   58         prohibition against requiring a drawer to redeem his
   59         or her check before the agreed-upon date; reenacting
   60         s. 560.111(5), F.S., relating to prohibited acts, to
   61         incorporate the amendments made to ss. 560.404 and
   62         560.405, F.S., in references thereto; providing an
   63         effective date.
   64          
   65  Be It Enacted by the Legislature of the State of Florida:
   66  
   67         Section 1. Section 559.715, Florida Statutes, is amended to
   68  read:
   69         559.715 Assignment of consumer debts.—This part does not
   70  prohibit the assignment, by a creditor, of the right to bill and
   71  collect a consumer debt. However, the assignee must give the
   72  debtor written notice of such assignment as soon as practical
   73  after the assignment is made, but at least 30 days before
   74  bringing any legal action to collect the debt. The assignee is a
   75  real party in interest and may bring an action to collect a debt
   76  that has been assigned to the assignee and is in default.
   77         Section 2. Present subsections (3) through (5) and (6) of
   78  section 560.402, Florida Statutes, are renumbered as subsections
   79  (4) through (6) and (8), respectively, present subsection (7) is
   80  amended, and new subsections (3) and (7) are added to that
   81  section, to read:
   82         560.402 Definitions.—For the purposes of this part, the
   83  term:
   84         (3)“Deferred presentment installment transaction” means a
   85  deferred presentment transaction that is repayable in
   86  installments.
   87         (7)“Outstanding transaction balance” means the amount
   88  received by the drawer from the deferred presentment provider
   89  that is due and owing, exclusive of the fees allowed under this
   90  part, in a deferred presentment transaction.
   91         (9)(7) “Termination of a deferred presentment agreement”
   92  means that all checks the check that are is the basis for the
   93  agreement are is redeemed by the drawer by payment in full in
   94  cash, or are is deposited and the deferred presentment provider
   95  has evidence that such checks have check has cleared.
   96  Verification of sufficient funds in the drawer’s account by the
   97  deferred presentment provider is not sufficient evidence to deem
   98  that the deferred presentment deposit transaction is terminated.
   99         Section 3. Subsections (5), (6), (8), (12), (13), (14),
  100  (19), (20), (21), and (22) and present subsections (23) and (24)
  101  of section 560.404, Florida Statutes, are amended, and new
  102  subsection (23) and subsection (26) are added to that section,
  103  to read:
  104         560.404 Requirements for deferred presentment
  105  transactions.—
  106         (5) The face amount of a check taken for deferred
  107  presentment transactions not repayable in installments may not
  108  exceed $500, exclusive of the fees allowed under this part. For
  109  a deferred presentment installment transaction, neither the face
  110  amount of a check nor the outstanding transaction balance may
  111  exceed $1,000, exclusive of the fees allowed under this part.
  112         (6)(a) A deferred presentment provider or its affiliate may
  113  not charge fees that exceed 10 percent of the currency or
  114  payment instrument provided for a deferred presentment
  115  transaction not repayable in installments. A deferred
  116  presentment provider or its affiliate may not charge fees on any
  117  deferred presentment installment transaction which exceed 8
  118  percent of the outstanding transaction balance on a biweekly
  119  basis.
  120         (b)Notwithstanding paragraph (a) However, a verification
  121  fee may be charged as provided in s. 560.309(8). The fees in
  122  paragraph (a) The 10-percent fee may not be applied to the
  123  verification fee.
  124         (c)Fees are earned at the time of origination for a
  125  deferred presentment transaction scheduled to be paid off in 31
  126  days or less; however, fees for a deferred presentment
  127  installment transaction are earned using a simple interest
  128  calculation. A deferred presentment provider may charge only
  129  those fees specifically authorized in this section. Prepayment
  130  penalties are prohibited.
  131         (8) A deferred presentment agreement may not be for a term
  132  longer than 31 days or fewer less than 7 days, except for a
  133  deferred presentment installment transaction, which may not be
  134  for a term longer than 90 days or fewer than 60 days.
  135         (12) The deferred presentment agreement and the drawer’s
  136  initial check must bear the same date, and the number of days of
  137  the deferment period must shall be calculated from that date.
  138  For deferred presentment installment transactions, the deferred
  139  presentment provider may accept additional checks, subject to
  140  the limitations in subsection (5), each bearing the date that
  141  the check was given to the provider, and the deferred
  142  presentment agreement must include the deferment period
  143  applicable to each check. The deferred presentment provider and
  144  the drawer may not alter or delete the date on any written
  145  agreement or check held by the deferred presentment provider.
  146         (13) For each deferred presentment transaction, the
  147  deferred presentment provider must comply with the disclosure
  148  requirements of 12 C.F.R. part 226, relating to the federal
  149  Truth-in-Lending Act, and Regulation Z of the Bureau of Consumer
  150  Financial Protection Board of Governors of the Federal Reserve
  151  Board. A copy of the disclosure must be provided to the drawer
  152  at the time the deferred presentment transaction is initiated.
  153         (14) A deferred presentment provider or its affiliate may
  154  not accept or hold an undated check or a check dated on a date
  155  other than the date on which the deferred presentment provider
  156  agreed to hold the check and signed the deferred presentment
  157  transaction agreement, except when a customer provides a new
  158  payment instrument reflecting the new outstanding transaction
  159  balance and anticipated fees upon making a payment on a deferred
  160  presentment installment transaction.
  161         (19) A deferred presentment provider may not enter into a
  162  deferred presentment transaction with a drawer who has an
  163  outstanding deferred presentment transaction with that provider
  164  or with any other deferred presentment provider, or with a
  165  person whose previous deferred presentment transaction with that
  166  provider or with any other provider has been terminated for less
  167  than 24 hours. The deferred presentment provider must verify
  168  such information as follows:
  169         (a) The deferred presentment provider must shall maintain a
  170  common database and shall verify whether the provider or an
  171  affiliate has an outstanding deferred presentment transaction
  172  with a particular person or has terminated a transaction with
  173  that person within the previous 24 hours. If a provider has not
  174  established a database, the provider may rely upon the written
  175  verification of the drawer as provided in subsection (20).
  176         (b) The deferred presentment provider must shall access the
  177  office’s database established pursuant to subsection (24) (23)
  178  and shall verify whether any other deferred presentment provider
  179  has an outstanding deferred presentment transaction with a
  180  particular person or has terminated a transaction with that
  181  person within the previous 24 hours. Before the office has
  182  implemented a database to include deferred presentment
  183  installment transactions If a provider has not established a
  184  database, the deferred presentment provider must access the
  185  office’s current database pursuant to this paragraph and may
  186  rely upon the written verification of the drawer as provided in
  187  subsection (20).
  188         (20) A deferred presentment provider must shall provide the
  189  following notice in a prominent place on each deferred
  190  presentment agreement in at least 14-point type in substantially
  191  the following form and must obtain the signature of the drawer
  192  where indicated:
  193  
  194                               NOTICE                              
  195  
  196         1. STATE LAW PROHIBITS YOU FROM HAVING MORE THAN ONE
  197         DEFERRED PRESENTMENT AGREEMENT AT ANY ONE TIME. STATE
  198         LAW ALSO PROHIBITS YOU FROM ENTERING INTO A DEFERRED
  199         PRESENTMENT AGREEMENT WITHIN 24 HOURS AFTER
  200         TERMINATING ANY PREVIOUS DEFERRED PRESENTMENT
  201         AGREEMENT. FAILURE TO OBEY THIS LAW COULD CREATE
  202         SEVERE FINANCIAL HARDSHIP FOR YOU AND YOUR FAMILY.
  203  
  204         YOU MUST SIGN THE FOLLOWING STATEMENT:
  205  
  206         I DO NOT HAVE AN OUTSTANDING DEFERRED PRESENTMENT
  207         AGREEMENT WITH ANY DEFERRED PRESENTMENT PROVIDER AT
  208         THIS TIME. I HAVE NOT TERMINATED A DEFERRED
  209         PRESENTMENT AGREEMENT WITHIN THE PAST 24 HOURS.
  210         (Signature of Drawer)
  211  
  212         2. YOU CANNOT BE PROSECUTED IN CRIMINAL COURT FOR A
  213         CHECK WRITTEN UNDER THIS AGREEMENT, BUT ALL LEGALLY
  214         AVAILABLE CIVIL MEANS TO ENFORCE THE DEBT MAY BE
  215         PURSUED AGAINST YOU.
  216  
  217         3. STATE LAW PROHIBITS A DEFERRED PRESENTMENT PROVIDER
  218         (THIS BUSINESS) FROM ALLOWING YOU TO “ROLL OVER” YOUR
  219         DEFERRED PRESENTMENT TRANSACTION. THIS MEANS THAT YOU
  220         CANNOT BE ASKED OR REQUIRED TO PAY AN ADDITIONAL FEE
  221         IN ORDER TO FURTHER DELAY THE DEPOSIT OR PRESENTMENT
  222         OF YOUR CHECK FOR PAYMENT.
  223  
  224         4.FOR DEFERRED PRESENTMENT TRANSACTIONS NOT REPAYABLE
  225         IN INSTALLMENTS: IF YOU INFORM THE PROVIDER IN PERSON
  226         THAT YOU CANNOT COVER THE CHECK OR PAY IN FULL THE
  227         AMOUNT OWING AT THE END OF THE TERM OF THIS AGREEMENT,
  228         YOU WILL RECEIVE A GRACE PERIOD EXTENDING THE TERM OF
  229         THE AGREEMENT FOR AN ADDITIONAL 60 DAYS AFTER THE
  230         ORIGINAL TERMINATION DATE, WITHOUT ANY ADDITIONAL
  231         CHARGE. THE DEFERRED PRESENTMENT PROVIDER MUST SHALL
  232         REQUIRE THAT YOU, AS A CONDITION OF OBTAINING THE
  233         GRACE PERIOD, COMPLETE CONSUMER CREDIT COUNSELING
  234         PROVIDED BY AN AGENCY INCLUDED ON THE LIST THAT WILL
  235         BE PROVIDED TO YOU BY THIS PROVIDER. YOU MAY ALSO
  236         AGREE TO COMPLY WITH AND ADHERE TO A REPAYMENT PLAN
  237         APPROVED BY THAT AGENCY. IF YOU DO NOT COMPLY WITH AND
  238         ADHERE TO A REPAYMENT PLAN APPROVED BY THAT AGENCY, WE
  239         MAY DEPOSIT OR PRESENT YOUR CHECK FOR PAYMENT AND
  240         PURSUE ALL LEGALLY AVAILABLE CIVIL MEANS TO ENFORCE
  241         THE DEBT AT THE END OF THE 60-DAY GRACE PERIOD.
  242  
  243         5.FOR DEFERRED PRESENTMENT INSTALLMENT TRANSACTIONS:
  244         IF YOU INFORM THE PROVIDER IN WRITING OR IN PERSON BY
  245         NOON [TIME ZONE] OF THE BUSINESS DAY BEFORE A
  246         SCHEDULED PAYMENT THAT YOU CANNOT PAY IN FULL THE
  247         SCHEDULED AMOUNT DUE AND OWING, YOU MAY DEFER THE
  248         SCHEDULED PAYMENT, WITHOUT ANY ADDITIONAL FEES OR
  249         CHARGES, AND THE PROVIDER MAY NOT DEFAULT THE ACCOUNT
  250         AND ACCELERATE THE FULL BALANCE. YOU MAY REQUEST ONLY
  251         ONE DEFERRED PAYMENT PER LOAN. THE DEFERRED PAYMENT
  252         WILL BE ADDED AFTER THE LAST SCHEDULED PAYMENT AND IS
  253         DUE AT AN INTERVAL NO SHORTER THAN THE INTERVALS
  254         BETWEEN THE ORIGINALLY SCHEDULED PAYMENTS.
  255  
  256         (21) The deferred presentment provider may not deposit or
  257  present the drawer’s check if the drawer informs the provider in
  258  writing or in person that the drawer cannot redeem or pay in
  259  full in cash the amount due and owing the deferred presentment
  260  provider, unless the drawer fails to comply with subsection (22)
  261  or subsection (23), as applicable. No additional fees or
  262  penalties may be imposed on the drawer by virtue of any
  263  misrepresentation made by the drawer as to the sufficiency of
  264  funds in the drawer’s account. Additional fees may not be added
  265  to the amounts due and owing to the deferred presentment
  266  provider.
  267         (22) For deferred presentment transactions not repayable in
  268  installments, if, by the end of the deferment period, the drawer
  269  informs the deferred presentment provider in writing or in
  270  person that the drawer cannot redeem or pay in full in cash the
  271  amount due and owing the deferred presentment provider, the
  272  deferred presentment provider must shall provide a grace period
  273  extending the term of the agreement for an additional 60 days
  274  after the original termination date, without any additional
  275  charge.
  276         (a) The provider must shall require, that as a condition of
  277  providing a grace period, that the drawer make an appointment
  278  with a consumer credit counseling agency within 7 days after the
  279  end of the deferment period and complete the counseling by the
  280  end of the grace period. The drawer may agree to, comply with,
  281  and adhere to a repayment plan approved by the counseling
  282  agency. If the drawer agrees to comply with and adhere to a
  283  repayment plan approved by the counseling agency, the provider
  284  must also comply with and adhere to that repayment plan. The
  285  deferred presentment provider may not deposit or present the
  286  drawer’s check for payment before the end of the 60-day grace
  287  period unless the drawer fails to comply with such conditions or
  288  the drawer fails to notify the provider of such compliance.
  289  Before each deferred presentment transaction, the provider may
  290  verbally advise the drawer of the availability of the grace
  291  period consistent with the written notice in subsection (20),
  292  and may not discourage the drawer from using the grace period.
  293         (b) At the commencement of the grace period, the deferred
  294  presentment provider must shall provide the drawer:
  295         1. Verbal notice of the availability of the grace period
  296  consistent with the written notice in subsection (20).
  297         2. A list of approved consumer credit counseling agencies
  298  prepared by the office. The office list must shall include
  299  nonprofit consumer credit counseling agencies affiliated with
  300  the National Foundation for Credit Counseling which provide
  301  credit counseling services to state residents in person, by
  302  telephone, or through the Internet. The office list must include
  303  phone numbers for the agencies, the counties served by the
  304  agencies, and indicate the agencies that provide telephone
  305  counseling and those that provide Internet counseling. The
  306  office must shall update the list at least once each year.
  307         3. The following notice in at least 14-point type in
  308  substantially the following form:
  309  
  310         AS A CONDITION OF OBTAINING A GRACE PERIOD EXTENDING
  311         THE TERM OF YOUR DEFERRED PRESENTMENT AGREEMENT FOR AN
  312         ADDITIONAL 60 DAYS, UNTIL [DATE], WITHOUT ANY
  313         ADDITIONAL FEES, YOU MUST COMPLETE CONSUMER CREDIT
  314         COUNSELING PROVIDED BY AN AGENCY INCLUDED ON THE LIST
  315         THAT WILL BE PROVIDED TO YOU BY THIS PROVIDER. YOU MAY
  316         ALSO AGREE TO COMPLY WITH AND ADHERE TO A REPAYMENT
  317         PLAN APPROVED BY THE AGENCY. THE COUNSELING MAY BE IN
  318         PERSON, BY TELEPHONE, OR THROUGH THE INTERNET. YOU
  319         MUST NOTIFY US WITHIN 7 DAYS, BY [DATE], THAT YOU HAVE
  320         MADE AN APPOINTMENT WITH A CONSUMER CREDIT COUNSELING
  321         AGENCY. YOU MUST ALSO NOTIFY US WITHIN 60 DAYS, BY
  322         [DATE], THAT YOU HAVE COMPLETED THE CONSUMER CREDIT
  323         COUNSELING. WE MAY VERIFY THIS INFORMATION WITH THE
  324         AGENCY. IF YOU FAIL TO PROVIDE THE 7-DAY OR 60-DAY
  325         NOTICE, OR IF YOU HAVE NOT MADE THE APPOINTMENT OR
  326         COMPLETED THE COUNSELING WITHIN THE TIME REQUIRED, WE
  327         MAY DEPOSIT OR PRESENT YOUR CHECK FOR PAYMENT AND
  328         PURSUE ALL LEGALLY AVAILABLE CIVIL MEANS TO ENFORCE
  329         THE DEBT.
  330  
  331         (c) If a drawer completes an approved payment plan, the
  332  deferred presentment provider must shall pay one-half of the
  333  drawer’s fee for the deferred presentment agreement to the
  334  consumer credit counseling agency.
  335         (23)For deferred presentment installment transactions, if
  336  a drawer informs the deferred presentment provider in writing or
  337  in person by noon of the business day before a scheduled payment
  338  that the drawer cannot pay in full the scheduled payment amount
  339  due and owing the provider, the deferred presentment provider
  340  must provide the drawer the opportunity to defer the scheduled
  341  payment, at no additional fee or charge, until after the last
  342  scheduled payment. The phrase “by noon” means 12:00 p.m. of the
  343  same time zone in which the deferred presentment agreement was
  344  entered into. Only one deferred payment is permitted for each
  345  deferred presentment installment transaction. The deferred
  346  payment must be due at an interval after the last scheduled
  347  payment which is no shorter than the intervals between the
  348  originally scheduled payments.
  349         (24)(a)(23) The office must shall implement a common
  350  database with real-time access through an Internet connection
  351  for deferred presentment providers, as provided in this
  352  subsection. The database must be accessible to the office and
  353  the deferred presentment providers in order to verify whether
  354  any deferred presentment transactions are outstanding for a
  355  particular person. Deferred presentment providers must shall
  356  submit such data before entering into each deferred presentment
  357  transaction in such format as required by rule, including the
  358  drawer’s name, social security number or employment
  359  authorization alien number, address, driver license number,
  360  amount of the transaction, date of transaction, the date that
  361  the transaction is closed, and such additional information as is
  362  required by rule.
  363         (b)For data that must be submitted by a deferred
  364  presentment provider, the commission may by rule impose a fee of
  365  up to $1 per transaction for deferred presentment transactions
  366  not repayable in installments, and the commission may impose a
  367  fee of up to $1 for each full or partial 30-day period that a
  368  balance is scheduled to be outstanding for a deferred
  369  presentment installment transaction for data that must be
  370  submitted by a deferred presentment provider.
  371         (c) A deferred presentment provider may rely on the
  372  information contained in the database as accurate and is not
  373  subject to any administrative penalty or civil liability due to
  374  relying on inaccurate information contained in the database.
  375         (d) A deferred presentment provider must notify the office,
  376  in a manner as prescribed by rule, within 15 business days after
  377  ceasing operations or no longer holding a license under part II
  378  or part III of this chapter. Such notification must include a
  379  reconciliation of all open transactions. If the provider fails
  380  to provide notice, the office must shall take action to
  381  administratively release all open and pending transactions in
  382  the database after the office becomes aware of the closure.
  383         (e) This section does not affect the rights of the provider
  384  to enforce the contractual provisions of the deferred
  385  presentment agreements through any civil action allowed by law.
  386         (f) The commission may adopt rules to administer this
  387  subsection and to ensure that the database is used by deferred
  388  presentment providers in accordance with this section.
  389         (25)(24) A deferred presentment provider may not accept
  390  more than one check or authorization to initiate more than one
  391  automated clearinghouse transaction to collect on a deferred
  392  presentment transaction for a single deferred presentment
  393  transaction, except for deferred presentment installment
  394  transactions in which such checks or authorizations represent
  395  multiple scheduled payments.
  396         (26)A deferred presentment installment transaction must be
  397  fully amortizing and repayable in consecutive installments as
  398  nearly equal as mathematically practicable according to a
  399  payment schedule agreed upon by the parties with no fewer than
  400  13 days and not more than 1 calendar month between payments,
  401  except that the first installment may be longer than the
  402  remaining installments by not more than 15 days, and the first
  403  installment payment may be larger than the remaining installment
  404  payments by the amount of charges applicable to the extra days.
  405  In calculating charges under this subsection, when the first
  406  installment is longer than the remaining installments, the
  407  amount of the charges applicable to the extra days may not
  408  exceed those that would accrue under a simple interest
  409  calculation based on the rate allowed under subsection (6).
  410         Section 4. Subsections (1), (3), and (4) of section
  411  560.405, Florida Statutes, are amended to read:
  412         560.405 Deposit; redemption.—
  413         (1) The deferred presentment provider or its affiliate may
  414  not present the drawer’s check before the end of the deferment
  415  period, except for a missed scheduled payment for a deferred
  416  presentment installment transaction that has not been otherwise
  417  deferred pursuant to s. 560.404(23), as reflected and described
  418  in the deferred presentment transaction agreement.
  419         (3) Notwithstanding subsection (1), in lieu of presentment,
  420  a deferred presentment provider may allow the check to be
  421  redeemed at any time upon payment of the outstanding transaction
  422  balance and earned fees face amount of the drawer’s check.
  423  However, payment may not be made in the form of a personal
  424  check. Upon redemption, the deferred presentment provider must
  425  shall return the drawer’s check and provide a signed, dated
  426  receipt showing that the drawer’s check has been redeemed.
  427         (4) A drawer may not be required to redeem his or her check
  428  in full before the agreed-upon date; however, the drawer may
  429  choose to redeem the check before the agreed-upon presentment
  430  date.
  431         Section 5. For the purpose of incorporating the amendments
  432  made by this act to sections 560.404 and 560.405, Florida
  433  Statutes, in references thereto, subsection (5) of section
  434  560.111, Florida Statutes, is reenacted to read:
  435         560.111 Prohibited acts.—
  436         (5) Any person who willfully violates any provision of s.
  437  560.403, s. 560.404, or s. 560.405 commits a felony of the third
  438  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  439  775.084.
  440         Section 6. This act shall take effect July 1, 2019.