Florida Senate - 2019 COMMITTEE AMENDMENT Bill No. SB 874 Ì153120^Î153120 LEGISLATIVE ACTION Senate . House Comm: RCS . 03/25/2019 . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— The Committee on Banking and Insurance (Rouson) recommended the following: 1 Senate Substitute for Amendment (402070) (with title 2 amendment) 3 4 Delete lines 146 - 672 5 and insert: 6 (c) Demonstrate financial responsibility, experience, 7 character, or general fitness, such as to command the confidence 8 of the public and to warrant the belief that the business 9 operated at the licensed or proposed location is lawful, honest, 10 fair, efficient, and within the purposes of this chapter. 11 (d) Not be subject to the issuance of a cease and desist 12 order; the issuance of a removal order; the denial, suspension, 13 or revocation of a license; or any other action within the 14 authority of the office, any financial regulatory agency in this 15 state, or any other state or federal regulatory agency that 16 affects the ability of such person to participate in the 17 program. 18 (3)(a) A program applicant must file with the office a 19 digital application in a form and manner prescribed by 20 commission rule which contains all of the following information 21 with respect to the applicant: 22 1. The legal business name and any other name under which 23 the applicant operates. 24 2. The applicant’s main address. 25 3. The applicant’s telephone number and e-mail address. 26 4. The address of each program branch office. 27 5. The name, title, address, telephone number, and e-mail 28 address of the applicant’s contact person. 29 6. The license number, if the applicant is licensed under 30 s. 516.05. 31 7. A statement as to whether the applicant intends to use 32 the services of one or more access partners under s. 516.44. 33 8. A statement that the applicant has been accepted as a 34 data furnisher by a consumer reporting agency and will report to 35 a consumer reporting agency the payment performance of each 36 borrower on all program loans. 37 9. The signature and certification of an authorized person 38 of the applicant. 39 (b) A person who desires to participate in the program but 40 who is not licensed to make consumer finance loans pursuant to 41 s. 516.05 must concurrently submit the following digital 42 applications in a form and manner specified in this chapter to 43 the office: 44 1. An application pursuant to s. 516.03 for licensure to 45 make consumer finance loans. 46 2. An application for admission to the program in 47 accordance with paragraph (a). 48 (4) Except as otherwise provided in ss. 516.405-516.46, a 49 program licensee is subject to all the laws and rules governing 50 consumer finance loans under this chapter. A program license 51 must be renewed biennially. 52 (5) Notwithstanding s. 516.05(3), only one program license 53 is required for a person to make program loans under ss. 54 516.405-516.46, regardless of whether the program licensee 55 offers program loans to prospective borrowers at its own 56 physical business locations, through access partners, or via an 57 electronic access point through which a prospective borrower may 58 directly access the website of the program licensee. 59 (6) Each branch office of a program licensee must be 60 licensed under this section. 61 (7) The office shall issue a program branch office license 62 to a program licensee after the office determines that the 63 program licensee has submitted a completed electronic 64 application for a program branch office license in a form 65 prescribed by commission rule. The program branch office license 66 must be issued in the name of the program licensee that 67 maintains the branch office. An application is considered 68 received for purposes of s. 120.60 upon receipt of a completed 69 application form. The application for a program branch office 70 license must contain the following information: 71 (a) The legal business name and any other name under which 72 the applicant operates. 73 (b) The applicant’s main address. 74 (c) The applicant’s telephone number and e-mail address. 75 (d) The address of each program branch office. 76 (e) The name, title, address, telephone number, and e-mail 77 address of the applicant’s contact person. 78 (f) The applicant’s license number, if the applicant is 79 licensed under this chapter. 80 (g) The signature and certification of an authorized person 81 of the applicant. 82 (8) Except as provided in subsection (9), a program branch 83 office license must be renewed biennially at the time of 84 renewing the program license. 85 (9) Notwithstanding subsection (7), the office may deny an 86 initial or renewal application for a program license or program 87 branch office license if the applicant or any person with power 88 to direct the management or policies of the applicant’s 89 business: 90 (a) Fails to demonstrate financial responsibility, 91 experience, character, or general fitness, such as to command 92 the confidence of the public and to warrant the belief that the 93 business operated at the licensed or proposed location is 94 lawful, honest, fair, efficient, and within the purposes of this 95 chapter. 96 (b) Pled nolo contendere to, or was convicted or found 97 guilty of, a crime involving fraud, dishonest dealing, or any 98 act of moral turpitude, regardless of whether adjudication was 99 withheld. 100 (c) Is subject to the issuance of a cease and desist order; 101 the issuance of a removal order; the denial, suspension, or 102 revocation of a license; or any other action within the 103 authority of the office, any financial regulatory agency in this 104 state, or any other state or federal regulatory agency that 105 affects the applicant’s ability to participate in the program. 106 (10) The commission shall adopt rules to implement this 107 section. 108 Section 4. Section 516.43, Florida Statutes, is created to 109 read: 110 516.43 Requirements for program loans.— 111 (1) REQUIREMENTS.—A program licensee shall comply with each 112 of the following requirements in making program loans: 113 (a) A program loan must be unsecured. 114 (b) A program loan must have: 115 1. A term of at least 120 days, but not more than 36 116 months, for a loan with a principal balance upon origination of 117 at least $300, but not more than $3,000. 118 2. A term of at least 12 months, but not more than 60 119 months, for a loan with a principal balance upon origination of 120 more than $3,000. 121 (c) A program loan must not impose a prepayment penalty. A 122 program loan must be repayable by the borrower in substantially 123 equal, periodic installments, except that the final payment may 124 be less than the amount of the prior installments. Installments 125 must be due either every 2 weeks, semimonthly, or monthly. 126 (d) A program loan must include a borrower’s right to 127 rescind the program loan by notifying the program licensee of 128 the borrower’s intent to rescind the program loan and returning 129 the principal advanced by the end of the business day after the 130 day the program loan is consummated. 131 (e) Notwithstanding s. 516.031, the maximum annual interest 132 rate charged on a program loan to the borrower, which must be 133 fixed for the duration of the program loan, is 36 percent on 134 that portion of the unpaid principal balance up to and including 135 $3,000; 30 percent on that portion of the unpaid principal 136 balance exceeding $3,000 and up to and including $4,000; and 24 137 percent on that portion of the unpaid principal balance 138 exceeding $4,000 and up to and including $10,000. The original 139 principal amount of the program loan is equal to the amount 140 financed as defined by the federal Truth in Lending Act and 141 Regulation Z of the Board of Governors of the Federal Reserve 142 System. In determining compliance with the maximum annual 143 interest rates in this paragraph, the computations used must be 144 simple interest through the application of a daily periodic rate 145 to the actual unpaid principal balance each day and may not be 146 added-on interest or any other computations. 147 (f) If two or more interest rates are applied to the 148 principal amount of a program loan, the program licensee may 149 charge, contract for, and receive interest at that single annual 150 percentage rate that, if applied according to the actuarial 151 method to each of the scheduled periodic balances of principal, 152 would produce at maturity the same total amount of interest as 153 would result from the application of the two or more rates 154 otherwise permitted, based upon the assumption that all payments 155 are made as agreed. 156 (g) The program licensee shall reduce the interest rates 157 specified in paragraph (e) on each subsequent program loan to 158 the same borrower by a minimum of 1 percent, up to a maximum of 159 6 percent, if all of the following conditions are met: 160 1. The subsequent program loan is originated within 180 161 days after the prior program loan is fully repaid. 162 2. The borrower was never more than 15 days delinquent on 163 the prior program loan. 164 3. The prior program loan was outstanding for at least one 165 half of its original term before its repayment. 166 (h) The program licensee may not induce or permit any 167 person to become obligated to the program licensee, directly or 168 contingently, or both, under more than one program loan at the 169 same time with the program licensee. 170 (i) The program licensee may not refinance a program loan 171 unless all of the following conditions are met at the time the 172 borrower submits an application to refinance: 173 1. The principal amount payable may not include more than 174 60 days’ unpaid interest accrued on the previous program loan 175 pursuant to s. 516.031(5). 176 2. For a program loan with an original term up to and 177 including 25 months, the borrower has repaid at least 60 percent 178 of the outstanding principal remaining on his or her existing 179 program loan. 180 3. For a program loan with an original term of more than 25 181 months, but not more than 60 months, the borrower has made 182 current payments for at least 9 months on his or her existing 183 program loan. 184 4. The borrower is current on payments for his or her 185 existing program loan. 186 5. The program licensee must underwrite the new program 187 loan in accordance with subsection (7). 188 (j) In lieu of the provisions of s. 687.08, the program 189 licensee or, if applicable, its approved access partner shall 190 make available to the borrower by electronic or physical means a 191 plain and complete receipt of payment at the time that a payment 192 is made by the borrower. For audit purposes, the program 193 licensee must maintain an electronic record for each receipt 194 made available to a borrower, which must include a copy of the 195 receipt and the date and time that the receipt was generated. 196 Each receipt made available to the borrower must show all of the 197 following: 198 1. The name of the borrower. 199 2. The name of the access partner, if applicable. 200 3. The total payment amount received. 201 4. The date of payment. 202 5. The program loan balance before and after application of 203 the payment. 204 6. The amount of the payment that was applied to the 205 principal, interest, and fees. 206 7. The type of payment made by the borrower. 207 8. The following statement, prominently displayed in a type 208 size equal to or larger than the type size used to display the 209 other items on the receipt: “If you have any questions about 210 your loan now or in the future, you should direct those 211 questions to ...(name of program licensee)... by ...(at least 212 two different ways in which a borrower may contact the program 213 licensee)....” 214 (2) WRITTEN DISCLOSURES AND STATEMENTS.— 215 (a) Notwithstanding s. 516.15(1), the loan contract and all 216 written disclosures and statements may be provided by a program 217 licensee to a borrower in English or in the language in which 218 the loan is negotiated. 219 (b) The program licensee shall provide to a borrower all 220 the statements required of licensees under s. 516.15. 221 (3) ORIGINATION FEES.—Notwithstanding s. 516.031, a program 222 licensee may: 223 (a) Contract for and receive an origination fee from a 224 borrower on a program loan. The program licensee may either 225 deduct the origination fee from the principal amount of the loan 226 disbursed to the borrower or capitalize the origination fee into 227 the principal balance of the loan. The origination fee is fully 228 earned and nonrefundable immediately upon the making of the 229 program loan and may not exceed the lesser of 6 percent of the 230 principal amount of the program loan made to the borrower, 231 exclusive of the origination fee, or $90. 232 (b) Not charge a borrower an origination fee more than 233 twice in any 12-month period. 234 (4) INSUFFICIENT FUNDS FEES AND DELINQUENCY CHARGES.—A 235 program licensee may: 236 (a) Notwithstanding s. 516.031, require payment from a 237 borrower of no more than $20 for fees incurred by the program 238 licensee from a dishonored payment due to insufficient funds of 239 the borrower. 240 (b) Notwithstanding s. 516.031(3)(a)9., contract for and 241 receive a delinquency charge of up to $15 in a calendar month 242 for one or more payments that are in default for at least 10 243 days if the charge is agreed upon, in writing, between the 244 program licensee and the borrower before it is imposed. 245 246 The program licensee, or any wholly owned subsidiary of the 247 program licensee, may not sell or assign an unpaid debt to an 248 independent third party for collection purposes unless the debt 249 has been delinquent for at least 30 days. 250 (5) CREDIT EDUCATION.—Before disbursement of program loan 251 proceeds to the borrower, the program licensee must: 252 (a) Direct the borrower to the consumer credit counseling 253 services offered by an independent third party; or 254 (b) Provide a credit education program or seminar to the 255 borrower. The borrower is not required to participate in such 256 education program or seminar. A credit education program or 257 seminar offered pursuant to this paragraph must be provided at 258 no cost to the borrower. 259 (6) CREDIT REPORTING.— 260 (a) The program licensee shall report each borrower’s 261 payment performance to at least one consumer reporting agency. 262 (b) The office may not approve an applicant for the program 263 license before the applicant has been accepted as a data 264 furnisher by a consumer reporting agency. 265 (c) The program licensee shall provide each borrower with 266 the name or names of the consumer reporting agency or agencies 267 to which it will report the borrower’s payment history. 268 (7) PROGRAM LOAN UNDERWRITING.— 269 (a) The program licensee must underwrite each program loan 270 to determine a borrower’s ability and willingness to repay the 271 program loan pursuant to the program loan terms. The program 272 licensee may not make a program loan if it determines that the 273 borrower’s total monthly debt service payments at the time of 274 origination, including the program loan for which the borrower 275 is being considered and all outstanding forms of credit that can 276 be independently verified by the program licensee, exceed 50 277 percent of the borrower’s gross monthly income for a loan of not 278 more than $3,000, or exceed 36 percent of the borrower’s gross 279 monthly income for a loan of more than $3,000. 280 (b)1. The program licensee must seek information and 281 documentation pertaining to all of a borrower’s outstanding debt 282 obligations during the loan application and underwriting 283 process, including loans that are self-reported by the borrower 284 but not available through independent verification. The program 285 licensee must verify such information using a credit report from 286 at least one consumer reporting agency or through other 287 available electronic debt verification services that provide 288 reliable evidence of a borrower’s outstanding debt obligations. 289 2. The program licensee is not required to consider loans 290 made to a borrower by friends or family in determining the 291 borrower’s debt-to-income ratio. 292 (c) The program licensee must verify the borrower’s income 293 to determine the debt-to-income ratio using information from: 294 1. Electronic means or services that provide reliable 295 evidence of the borrower’s actual income; or 296 2. The Internal Revenue Service Form W-2, tax returns, 297 payroll receipts, bank statements, or other third-party 298 documents that provide reasonably reliable evidence of the 299 borrower’s actual income. 300 (8) WAIVERS.— 301 (a) A program licensee may not require, as a condition of 302 providing the program loan, that the borrower: 303 1. Waive any right, penalty, remedy, forum, or procedure 304 provided for in any law applicable to the program loan, 305 including the right to file and pursue a civil action or file a 306 complaint with or otherwise communicate with the office, a 307 court, or any other governmental entity. 308 2. Agree to the application of laws other than those of 309 this state. 310 3. Agree to resolve disputes in a jurisdiction outside of 311 this state. 312 (b) A waiver that is required as a condition of doing 313 business with the program licensee is presumed involuntary, 314 unconscionable, against public policy, and unenforceable. 315 (c) A program licensee may not refuse to do business with 316 or discriminate against a borrower or an applicant on the basis 317 of the borrower’s or applicant’s refusal to waive any right, 318 penalty, remedy, forum, or procedure, including the right to 319 file and pursue a civil action or complaint with, or otherwise 320 communicate with, the office, a court, or any other governmental 321 entity. The exercise of a person’s right to refuse to waive any 322 right, penalty, remedy, forum, or procedure, including a 323 rejection of a contract requiring a waiver, does not affect any 324 otherwise legal terms of a contract or an agreement. 325 (d) This subsection does not apply to any agreement to 326 waive any right, penalty, remedy, forum, or procedure, including 327 any agreement to arbitrate a claim or dispute after a claim or 328 dispute has arisen. This subsection does not affect the 329 enforceability or validity of any other provision of the 330 contract. 331 Section 5. Section 516.44, Florida Statutes, is created to 332 read: 333 516.44 Access partners.— 334 (1) ACCESS PARTNER AGREEMENT.—All arrangements between a 335 program licensee and an access partner must be specified in a 336 written access partner agreement between the parties. The 337 agreement must contain the following provisions: 338 (a) The access partner agrees to comply with this section 339 and all rules adopted under this section regarding the 340 activities of access partners. 341 (b) The office has access to the access partner’s books and 342 records pertaining to the access partner’s operations under the 343 agreement with the program licensee in accordance with s. 344 516.45(3) and may examine the access partner pursuant to s. 345 516.45. 346 (2) AUTHORIZED SERVICES.—A program licensee may use the 347 services of one or more access partners as provided in this 348 section. An access partner may perform one or more of the 349 following services for the program licensee: 350 (a) Distributing, circulating, using, or publishing printed 351 brochures, flyers, fact sheets, or other written materials 352 relating to program loans that the program licensee may make or 353 negotiate. The written materials must be reviewed and approved 354 in writing by the program licensee before being distributed, 355 circulated, used, or published. 356 (b) Providing written factual information about program 357 loan terms, conditions, or qualification requirements to a 358 prospective borrower which has been prepared by the program 359 licensee or reviewed and approved in writing by the program 360 licensee. An access partner may discuss the information with a 361 prospective borrower in general terms. 362 (c) Notifying a prospective borrower of the information 363 needed in order to complete a program loan application. 364 (d) Entering information provided by the prospective 365 borrower on a preprinted or an electronic application form or in 366 a preformatted computer database. 367 (e) Assembling credit applications and other materials 368 obtained in the course of a credit application transaction for 369 submission to the program licensee. 370 (f) Contacting the program licensee to determine the status 371 of a program loan application. 372 (g) Communicating a response that is returned by the 373 program licensee’s automated underwriting system to a borrower 374 or a prospective borrower. 375 (h) Obtaining a borrower’s signature on documents prepared 376 by the program licensee and delivering final copies of the 377 documents to the borrower. 378 (i) Disbursing program loan proceeds to a borrower if this 379 method of disbursement is acceptable to the borrower, subject to 380 the requirements of subsection (3). A loan disbursement made by 381 an access partner under this paragraph is deemed to be made by 382 the program licensee on the date that the funds are disbursed or 383 otherwise made available by the access partner to the borrower. 384 (j) Receiving a program loan payment from the borrower if 385 this method of payment is acceptable to the borrower, subject to 386 the requirements of subsection (3). 387 (k) Operating an electronic access point through which a 388 prospective borrower may directly access the website of the 389 program licensee to apply for a program loan. 390 (3) RECEIPT OR DISBURSEMENT OF PROGRAM LOAN PAYMENTS.— 391 (a) A loan payment made by a borrower to an access partner 392 under paragraph (2)(j) must be applied to the borrower’s program 393 loan and deemed received by the program licensee as of the date 394 on which the payment is received by the access partner. 395 (b) An access partner that receives a loan payment from a 396 borrower must deliver or cause to be delivered to the borrower a 397 plain and complete receipt showing all of the information 398 specified in s. 516.43(1)(j) at the time that the payment is 399 made by the borrower. 400 (c) A borrower who submits a loan payment to an access 401 partner under this subsection is not liable for a failure or 402 delay by the access partner in transmitting the payment to the 403 program licensee. 404 (d) An access partner that disburses or receives loan 405 payments pursuant to paragraph (2)(i) or paragraph (2)(j) must 406 maintain records of all disbursements made and loan payments 407 received for at least 2 years. 408 (4) PROHIBITED ACTIVITIES.—An access partner may not: 409 (a) Provide counseling or advice to a borrower or 410 prospective borrower with respect to any loan term. 411 (b) Provide loan-related marketing material that has not 412 previously been approved by the program licensee to a borrower 413 or a prospective borrower. 414 (c) Negotiate a loan term between a program licensee and a 415 prospective borrower. 416 (d) Offer information pertaining to a single prospective 417 borrower to more than one program licensee. However, if a 418 program licensee has declined to offer a program loan to a 419 prospective borrower and has so notified the prospective 420 borrower in writing, the access partner may then offer 421 information pertaining to that borrower to another program 422 licensee with whom it has an access partner agreement. 423 (e) Require a borrower to pay any fees or charges to the 424 access partner or to any other person in connection with a 425 program loan other than those permitted under ss. 516.405 426 516.46. 427 (5) DISCLOSURE STATEMENTS.— 428 (a) At the time that the access partner receives or 429 processes an application for a program loan, the access partner 430 shall provide the following statement to the applicant on behalf 431 of the program licensee, in at least 10-point type, and shall 432 request that the applicant acknowledge receipt of the statement 433 in writing: 434 435 Your loan application has been referred to us by 436 ...(name of access partner).... We may pay a fee to 437 ...(name of access partner)... for the successful 438 referral of your loan application. If you are approved 439 for the loan, ...(name of program licensee)... will 440 become your lender. If you have any questions about 441 your loan, now or in the future, you should direct 442 those questions to ...(name of program licensee)... by 443 ...(insert at least two different ways in which a 444 borrower may contact the program licensee).... If you 445 wish to report a complaint about ...(name of access 446 partner)... or ...(name of program licensee)... 447 regarding this loan transaction, you may contact the 448 Division of Consumer Finance of the Office of 449 Financial Regulation at 850-487-9687 or 450 http://www.flofr.com. 451 452 (b) If the loan applicant has questions about the program 453 loan which the access partner is not permitted to answer, the 454 access partner must make a good faith effort to assist the 455 applicant in making direct contact with the program licensee 456 before the program loan is consummated. 457 (6) COMPENSATION.— 458 (a) The program licensee may compensate an access partner 459 in accordance with a written agreement and a compensation 460 schedule that is agreed to by the program licensee and the 461 access partner, subject to the requirements in paragraph (b). 462 (b) The compensation of an access partner by a program 463 licensee is subject to the following requirements: 464 1. Compensation may not be paid to an access partner in 465 connection with a loan application unless the program loan is 466 consummated. 467 2. The access partner’s location for services and other 468 information required in subsection (7) must be reported to the 469 office. 470 (7) NOTICE TO OFFICE.—A program licensee that uses the 471 service of an access partner must notify the office, in a form 472 and manner prescribed by commission rule, within 15 days after 473 entering into a contract with an access partner regarding all of 474 the following: 475 (a) The name, business address, and licensing details of 476 the access partner and all locations at which the access partner 477 will perform services under this section. 478 (b) The name and contact information for an employee of the 479 access partner who is knowledgeable about, and has the authority 480 to execute, the access partner agreement. 481 (c) The name and contact information of one or more 482 employees of the access partner who are responsible for that 483 access partner’s referring activities on behalf of the program 484 licensee. 485 (d) A statement by the program licensee that it has 486 conducted due diligence with respect to the access partner and 487 has confirmed that none of the following apply: 488 1. The filing of a petition under the United States 489 Bankruptcy Code for bankruptcy or reorganization by the access 490 partner. 491 2. The commencement of an administrative or a judicial 492 license suspension or revocation proceeding, or the denial of a 493 license request or renewal, by any state, the District of 494 Columbia, any United States territory, or any foreign country in 495 which the access partner operates, plans to operate, or is 496 licensed to operate. 497 3. A felony indictment involving the access partner or an 498 affiliated party. 499 4. The felony conviction, guilty plea, or plea of nolo 500 contendere, regardless of adjudication, of the access partner or 501 an affiliated party. 502 5. Any suspected criminal act perpetrated in this state 503 relating to activities regulated under this chapter by the 504 access partner. 505 6. Notification by a law enforcement or prosecutorial 506 agency that the access partner is under criminal investigation, 507 including, but not limited to, subpoenas to produce records or 508 testimony and warrants issued by a court of competent 509 jurisdiction which authorize the search and seizure of any 510 records relating to a business activity regulated under this 511 chapter. 512 513 As used in this paragraph, the term “affiliated party” means a 514 director, officer, responsible person, employee, or foreign 515 affiliate of an access partner; or a person who has a 516 controlling interest in an access partner. 517 (e) Any other information requested by the office, subject 518 to the limitations specified in s. 516.45(3). 519 (8) NOTICE OF CHANGES.—An access partner must provide the 520 program licensee with a written notice sent by registered mail 521 within 30 days after any change is made to the information 522 specified in paragraphs (7)(a)-(c) and within 30 days after the 523 occurrence or knowledge of any of the events specified in 524 paragraph (7)(d). 525 (9) RESPONSIBILITY FOR ACTS OF AN ACCESS PARTNER.—A program 526 licensee is responsible for any act of its access partner if 527 such act is a violation of this chapter. 528 (10) RULEMAKING.—The commission shall adopt rules to 529 implement this section. 530 Section 6. Section 516.45, Florida Statutes, is created to 531 read: 532 516.45 Examinations, investigations, and grounds for 533 disciplinary action.— 534 (1) Notwithstanding any other law, the office may examine 535 each program licensee that is accepted into the program and each 536 branch office of the program licensee in accordance with this 537 chapter. 538 (2) Notwithstanding any other law, the office may examine 539 each access partner that is accepted into the program in 540 accordance with this chapter. 541 542 ================= T I T L E A M E N D M E N T ================ 543 And the title is amended as follows: 544 Delete lines 53 - 55 545 and insert: 546 creating s. 516.45, F.S.; authorizing the office to 547 examine each program licensee, branch office, and 548 access partner;