December 11, 2019
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       Florida Senate - 2010                                     SB 938
       
       
       
       By Senator Bennett
       
       
       
       
       21-00954-10                                            2010938__
    1                        A bill to be entitled                      
    2         An act relating to debt settlement services; creating
    3         part V of ch. 817, F.S.; providing a short title;
    4         defining terms; providing exemptions from the
    5         application of the part; requiring that a person be
    6         licensed if he or she provides or offers to provide
    7         debt settlement services to a client who resides in
    8         this state; providing for a license application and
    9         requiring a fee and proof of an insurance policy or
   10         surety bond; requiring the fingerprinting and
   11         background screening of licensees and certain
   12         personnel of the licensees’ businesses; requiring
   13         certain persons to pay the costs of fingerprint
   14         processing; requiring an applicant or licensee to
   15         notify the Office of Financial Regulation of any
   16         change of the application information within a
   17         specified time; requiring the office to publicize
   18         certain information on its website; providing
   19         procedures for the approval or denial of initial
   20         applications for debt settlement advisor licenses;
   21         setting forth grounds for which the office may deny an
   22         application; authorizing an administrative proceeding
   23         upon denial of an application; requiring an annual
   24         license period; providing for expiration of licenses;
   25         specifying procedures for renewal of debt settlement
   26         advisor licenses; authorizing an administrative
   27         proceeding upon denial of a license renewal;
   28         authorizing certain licensed activity pending the
   29         outcome of an administrative proceeding; requiring
   30         debt settlement advisors to act in good faith and
   31         provide certain customer services; requiring debt
   32         settlement advisors to provide certain documents to
   33         prospective clients before signing debt settlement
   34         services agreements; authorizing debt settlement
   35         advisors to provide certain communications by
   36         electronic means in compliance with federal law;
   37         specifying requirements for the format and contents of
   38         debt settlement services agreements; authorizing
   39         clients to cancel such agreements within a specified
   40         period; specifying the contents of the cancellation
   41         form; requiring debt settlement providers to furnish
   42         certain documents in English and provide translations
   43         under certain circumstances; limiting the fees that
   44         debt settlement advisors may charge; prohibiting debt
   45         settlement advisors from soliciting voluntary
   46         contributions; authorizing clients to void debt
   47         settlement services agreements and recover fees under
   48         certain circumstances; authorizing debt settlement
   49         advisors to terminate such agreements under certain
   50         circumstances; requiring debt settlement advisors to
   51         provide clients with reports containing specified
   52         information under certain circumstances and keep such
   53         records for a specified period; prohibiting debt
   54         settlement advisors from engaging in certain acts and
   55         practices; prohibiting deceptive advertisements;
   56         requiring debt settlement advisors to establish
   57         internal complaint processes; specifying the powers of
   58         the Office of Financial Regulation to administer the
   59         part; authorizing the office to issue subpoenas;
   60         requiring licensees to keep certain records for a
   61         specified period and submit such records for
   62         examination by the office; authorizing the office to
   63         impose certain fees and charges; authorizing the
   64         Financial Services Commission to adopt rules;
   65         providing administrative remedies for violations of
   66         the part; authorizing the office to impose fines and
   67         civil penalties; authorizing the suspension,
   68         revocation, or nonrenewal of debt settlement advisor
   69         licenses under certain circumstances; authorizing an
   70         administrative proceeding upon the suspension,
   71         revocation, or nonrenewal of a license; authorizing
   72         civil actions for enforcement of the part; providing
   73         for the award of attorney’s fees; declaring that
   74         violations of the part are deceptive and unfair trade
   75         practices; specifying that the part does not preempt
   76         other consumer protection laws; providing time
   77         limitations for commencing civil actions; providing
   78         for the part’s application in relation to the
   79         Electronic Signatures in Global and National Commerce
   80         Act; providing for severability; providing an
   81         effective date.
   82  
   83  Be It Enacted by the Legislature of the State of Florida:
   84  
   85         Section 1. Part V of chapter 817, Florida Statutes,
   86  consisting of sections 817.901, 817.903, 817.905, 817.907,
   87  817.909, 817.911, 817.913, 817.915, 817.917, 817.919, 817.921,
   88  817.923, 817.925, 817.927, 817.929, 817.931, 817.933, 817.935,
   89  817.937, 817.939, 817.941, 817.943, 817.945, 817.947, 817.949,
   90  817.951, 817.953, and 817.955, is created to read:
   91                               PART V                              
   92                      DEBT SETTLEMENT SERVICES                     
   93         817.901 Short title.—This part may be cited as the “Debt
   94  Settlement Services Act.”
   95         817.903 Definitions.—As used in this part, the term:
   96         (1) “Agreement” means an agreement between a debt
   97  settlement advisor and a client for the performance of debt
   98  settlement services.
   99         (2) “Bank” means a financial institution, including, but
  100  not limited to, a commercial bank, savings bank, savings and
  101  loan association, credit union, mortgage bank, or trust company,
  102  which is engaged in the business of banking, chartered under
  103  federal or state law, and regulated by a federal or state
  104  banking regulatory authority.
  105         (3) “Client” means a person who enters into an agreement
  106  with a debt settlement advisor for debt settlement services.
  107         (4) “Commission” means the Financial Services Commission.
  108         (5) “Concession” means consent to repay a debt on terms
  109  more favorable to a client than the terms of the original
  110  contract between the client and his or her creditor.
  111         (6) “Control person” means an individual, partnership,
  112  corporation, trust, or other organization that possesses the
  113  power, directly or indirectly, to direct the management or
  114  policies of a debt settlement advisor’s business, whether
  115  through ownership of securities, by contract, or otherwise. A
  116  person is presumed to control a debt settlement advisor’s
  117  business if the person:
  118         (a) Is a director, general partner, or officer exercising
  119  executive responsibility or having similar status or functions;
  120         (b) Directly or indirectly may vote 10 percent or more of a
  121  class of voting securities or sell or direct the sale of 10
  122  percent or more of a class of voting securities; or
  123         (c) In the case of a partnership, may receive upon
  124  dissolution or has contributed 10 percent or more of the
  125  capital.
  126         (7) “Debt settlement advisor” or “licensee” means a person
  127  licensed under this part to provide debt settlement services to
  128  a client. The term includes an employee or agent of a debt
  129  settlement advisor.
  130         (8) “Debt settlement services” means services provided by a
  131  debt settlement advisor who acts as an intermediary between a
  132  client and one or more unsecured creditors of the client for
  133  purposes of obtaining favorable concessions for the client. The
  134  term does not include the receipt of money from a client with
  135  the intent of distributing the money to the client’s creditors.
  136  The term also does not include:
  137         (a) Legal services provided by an attorney licensed to
  138  practice law in this state;
  139         (b) Accounting services provided by a certified public
  140  accountant licensed to provide accounting services in this
  141  state; or
  142         (c) Financial planning services provided by a member of a
  143  financial planning profession.
  144         (9) “Federal act” means the federal Electronic Signatures
  145  in Global and National Commerce Act, 15 U.S.C. ss. 7001 et seq.,
  146  as amended.
  147         (10) “Good faith” means honesty in fact and the observance
  148  of reasonable standards of fair dealing.
  149         (11) “Insolvent” means:
  150         (a) Having generally ceased to pay debts in the ordinary
  151  course of business other than as a result of a good faith
  152  dispute;
  153         (b) Being unable to pay debts as they become due; or
  154         (c) Being insolvent within the meaning of the federal
  155  bankruptcy law, 11 U.S.C. ss. 101 et seq., as amended.
  156         (12) “Office” means the Office of Financial Regulation.
  157         (13) “Principal amount of a debt” means the amount of debt
  158  possessed by the client at the time he or she executes an
  159  agreement with a debt settlement advisor and before concessions
  160  are made by the client’s creditors.
  161         (14) “Program” or “debt settlement program” means a process
  162  whereby a debt settlement advisor furnishes a crafted debt
  163  settlement plan to a client and negotiates on behalf of the
  164  client and, after an agreement, the client makes payments
  165  directly to his or her creditors.
  166         (15) “Record” means information that is inscribed on a
  167  tangible medium or stored in an electronic format or other
  168  medium and is retrievable in perceivable form.
  169         817.905 Exemptions.—This part does not apply to:
  170         (1) A person who provides debt settlement services to a
  171  client but does not receive compensation for such services.
  172         (2) A judicial officer, a person acting under an order of a
  173  court or an administrative agency, or an assignee for the
  174  benefit of creditors.
  175         (3) A bank or its agent.
  176         (4) A title insurer, escrow company, or other entity that
  177  provides bill-paying services if the debt settlement services
  178  are incidental to the bill-paying services.
  179         817.907 Debt settlement advisor license.—
  180         (1)(a) A person must be licensed under this part if he or
  181  she provides or offers to provide debt settlement services to a
  182  client who resides in this state.
  183         (b) A person seeking a debt settlement advisor license must
  184  apply to the office in the format prescribed by commission rule.
  185  An application must include:
  186         1. The applicant’s name, principal business address and
  187  telephone number, and every e-mail address and Internet website
  188  address used by the applicant.
  189         2. The name under which the applicant will conduct
  190  business.
  191         3. The address of each location in this state, other than
  192  the applicant’s principal business address, at which the
  193  applicant will provide debt settlement services, or a statement
  194  that the applicant will provide debt settlement services only at
  195  the principal business address.
  196         4. If the applicant is a business entity, the name and home
  197  address of each officer, director, and other control person of
  198  the business entity.
  199         5. A statement describing, to the extent it is known or
  200  should be known by the applicant, any civil or criminal
  201  judgments related to financial fraud or misuse, and any
  202  administrative or enforcement actions relating to financial
  203  fraud or misuse, by a governmental agency in any jurisdiction
  204  against the applicant or an officer, director, owner, or other
  205  control person, or an employee or agent, of the applicant’s
  206  business.
  207         6. A copy of each debt settlement services agreement form
  208  that the applicant will use in providing services to clients.
  209         7. The schedule of fees and charges that the applicant
  210  intends to charge a client for debt settlement services
  211  rendered.
  212         8. A copy of the financial analysis or budget form that the
  213  applicant intends to use for reviewing a client’s financial
  214  condition.
  215         9. A description of any ownership interest of 10 percent or
  216  more by a director, owner, or other control person, or by an
  217  employee, of the applicant’s business in:
  218         a. Any entity that provides products or services to the
  219  applicant or any client of the applicant’s debt settlement
  220  services; or
  221         b. Another control person of the applicant’s business.
  222         10. Evidence that the applicant has a registered agent in
  223  this state of record with the Department of State.
  224         11. Any other information that the office reasonably
  225  requires to perform the duties of the office under s. 817.909.
  226         (c) An application must contain a statement informing the
  227  applicant that a false or dishonest answer to any question in
  228  the application may be grounds for denial or subsequent
  229  suspension or revocation of the applicant’s license.
  230         (2) An applicant for a debt settlement advisor license must
  231  remit to the office a nonrefundable license fee established by
  232  commission rule not to exceed $350 and submit proof that:
  233         (a) The applicant is covered by a minimum insurance policy
  234  in an amount specified by commission rule; or
  235         (b) In lieu of an aggregate umbrella insurance policy, the
  236  applicant filed a surety bond with the office, in a form
  237  approved by commission rule, for a term of not less than the
  238  expiration date of the license. The bond must be in an amount of
  239  at least $10,000. However, the office may demand that an
  240  applicant file a bond of a larger amount if the office
  241  determines that the financial condition and business experience
  242  of the debt settlement advisor, the history of the debt
  243  settlement advisor in performing debt settlement services, and
  244  the risk to clients justify a larger surety bond. The office may
  245  not require a surety bond greater than $50,000. The surety bond
  246  must be in favor of the office for the benefit of any clients in
  247  this state who suffer loss arising out of debt settlement
  248  services from the debt settlement advisor.
  249         (3) Each applicant and control person of the applicant’s
  250  business must submit fingerprints in accordance with commission
  251  rule.
  252         (a) The office may require that fingerprints be submitted
  253  to the office or a vendor acting on behalf of the office.
  254         (b) A state criminal history background screening must be
  255  conducted through the Department of Law Enforcement and a
  256  federal criminal history background screening must be conducted
  257  through the Federal Bureau of Investigation. The office is
  258  responsible for reviewing the results of the state and federal
  259  criminal history checks and determining whether the applicant
  260  meets licensure requirements.
  261         (c) The office may contract with third-party vendors that
  262  provide live scan fingerprinting in lieu of a paper fingerprint
  263  card.
  264         (d) All fingerprints submitted to the Department of Law
  265  Enforcement shall be submitted electronically and shall be
  266  entered into the statewide automated fingerprint identification
  267  system established in s. 943.05(2)(b) and shall be available for
  268  use in accordance with s. 943.05(2)(g) and (h). The office shall
  269  participate in this process by payment of an annual fee to the
  270  Department of Law Enforcement and by informing the Department of
  271  Law Enforcement of any person whose fingerprints should no
  272  longer be retained.
  273         (e) The costs of fingerprint processing, including the
  274  costs of retaining fingerprints, shall be borne by the person
  275  subject to the background screening.
  276         (4) An applicant or licensed debt settlement advisor shall
  277  notify the office whenever there is a change of the information
  278  specified in this section or s. 817.911 within 30 days after the
  279  change.
  280         (5) The office shall maintain and publicize on its Internet
  281  website the names and addresses of all licensed debt settlement
  282  advisors in this state.
  283         817.909 Issuance or denial of licenses.—
  284         (1) An application is considered received for purposes of
  285  s. 120.60 upon receipt of a completed application as prescribed
  286  by commission rule, the nonrefundable license fee established
  287  pursuant to s. 817.907(2), and any other fee prescribed by law.
  288         (2) The office shall issue an initial license to a debt
  289  settlement advisor who complies with s. 817.907. The office may
  290  deny an application for an initial debt settlement advisor
  291  license if:
  292         (a) The application contains information that is materially
  293  erroneous or incomplete;
  294         (b) An officer, director, owner, or other control person of
  295  the applicant’s business has been convicted of a crime or has
  296  had a civil judgment entered against him or her involving
  297  dishonesty or the violation of state or federal securities laws;
  298         (c) The application is not accompanied by the required fees
  299  established by the office; or
  300         (d) There is reasonable evidence that the applicant will
  301  not operate as a debt settlement advisor in a lawful, honest,
  302  and fair manner.
  303         (3) Upon denial of an initial application for a debt
  304  settlement advisor license, the applicant may request an
  305  administrative proceeding on the denial pursuant to chapter 120.
  306         (4) The commission shall establish by rule an annual
  307  license period. A debt settlement advisor license expires at the
  308  end of the license period for which the license is issued.
  309         817.911 License renewal.—
  310         (1) A debt settlement advisor must annually renew his or
  311  her license to provide debt settlement services.
  312         (2) A person seeking licensure as a debt settlement advisor
  313  must apply to the office in the format prescribed by commission
  314  rule. A renewal application must:
  315         (a) Be filed at least 30 days, but no more than 60 days,
  316  before the current license expires.
  317         (b) Be accompanied by a nonrefundable renewal fee
  318  established by commission rule not to exceed the initial license
  319  fee established pursuant to s. 817.907(2) and the annual costs
  320  of fingerprint processing pursuant to s. 817.907(3)(d) and (e).
  321         (c) Disclose any changes in the information contained in
  322  the applicant’s initial application for a license or in its
  323  immediately previous license renewal application, as
  324  appropriate.
  325         (d) Provide any other information that the office
  326  reasonably requires to perform its duties under this section.
  327         (3) The office shall renew the license of a debt settlement
  328  advisor who complies with this section. The office may deny a
  329  renewal application for any reason authorized in s. 817.909(2)
  330  for denial of an initial application.
  331         (4) If a debt settlement advisor timely files a complete
  332  application for renewal of his or her license, the license
  333  remains in effect until the office notifies the applicant, in
  334  writing, whether the application is approved or denied. If the
  335  office denies a renewal application, the written notice to the
  336  debt settlement advisor must describe the reasons for the
  337  denial.
  338         (5)(a) Upon denial of an application to renew a debt
  339  settlement advisor license, the licensee may request an
  340  administrative proceeding on the denial pursuant to chapter 120.
  341         (b) If the office denies a renewal application and the
  342  applicant requests an administrative proceeding under chapter
  343  120, the debt settlement advisor may continue to provide debt
  344  settlement services to a client with whom the advisor has an
  345  agreement. If the denial of the license is affirmed, the debt
  346  settlement advisor must discontinue providing debt settlement
  347  services to clients and transfer the clients’ agreements to
  348  other licensed debt settlement advisors.
  349         817.913 Requirement of good faith.—A debt settlement
  350  advisor must act in good faith in all matters under this part.
  351         817.915 Customer service.—A debt settlement advisor shall
  352  maintain a toll-free telephone service, staffed at a level that
  353  reasonably permits a client to speak to a customer service
  354  representative during ordinary business hours.
  355         817.917 Prerequisites for providing debt settlement
  356  services.—
  357         (1) Before a debt settlement advisor may provide debt
  358  settlement services to a potential client, the debt settlement
  359  advisor must give the potential client an itemized list of goods
  360  and services available from the debt settlement advisor and the
  361  charges for each service rendered. The list and charges must be
  362  clear and conspicuous.
  363         (2) A debt settlement advisor may not furnish debt
  364  settlement services unless he or she prepares a financial
  365  analysis for the potential client.
  366         (3) Before signing an agreement with a potential client, a
  367  debt settlement advisor must:
  368         (a) Provide the potential client with a copy of the
  369  financial analysis and a written notice that identifies the debt
  370  settlement advisor and acknowledges that a potential client may
  371  keep the financial analysis even if he or she chooses not to
  372  become a client of the debt settlement advisor.
  373         (b) Inform the potential client of the availability, at his
  374  or her option, of assistance by a toll-free telephone service or
  375  in person to discuss the financial analysis required in
  376  subsection (2).
  377         (c) Inform the potential client that:
  378         1. Not all debt settlement programs are suitable for all
  379  clients.
  380         2. Participation in a debt settlement program may adversely
  381  affect a client’s credit rating or credit scores.
  382         3. Nonpayment of debt may lead creditors to increase
  383  finance and other charges or undertake collection activity,
  384  including litigation.
  385         4. Unless a client is insolvent and a creditor settles for
  386  less than the full amount of the debt, participation in the
  387  program may result in the creation of taxable income to the
  388  client, even though the client does not receive any money.
  389         5. Specific results cannot be predicted or guaranteed and
  390  the debt settlement advisor cannot force negotiations or
  391  settlements with creditors who do not wish to participate in
  392  negotiations, but will nevertheless advocate on behalf of the
  393  client.
  394         6. The debt settlement program requires that a client meet
  395  a certain savings goal in order to maximize settlement results.
  396         7. The debt settlement advisor may provide accounting or
  397  legal advice to a client only if the debt settlement advisor is
  398  licensed to practice law in this state.
  399         8. The debt settlement advisor is a client’s advocate and
  400  may not receive compensation from creditors, banks, or third
  401  party collection agencies.
  402         9. The debt settlement advisor may not make monthly
  403  payments to a client’s creditors.
  404         817.919 Communication by electronic or other means.—
  405         (1) A debt settlement advisor may satisfy the requirements
  406  of s. 817.917, s. 817.923, or s. 817.935 through the Internet or
  407  other electronic means if the debt settlement advisor obtains
  408  the client’s consent in the manner provided by s. 101(c)(1) of
  409  the federal act.
  410         (2) The disclosures and materials required by ss. 817.917,
  411  817.923, and 817.935 shall be presented in a format that can be
  412  accurately reproduced for later reference.
  413         (3) For disclosure through an Internet website, disclosure
  414  of the information required by s. 817.917 must appear on one or
  415  more screens that contain only the information required, and the
  416  client must be able to see the information on the screens before
  417  agreeing to participate in the program.
  418         (4) At the time of providing the materials or agreement
  419  required in s. 817.917, s. 817.923, or s. 817.935, a debt
  420  settlement advisor shall inform the client that upon electronic,
  421  telephonic, or written request, the advisor shall send the
  422  client a written copy of the materials and shall comply with a
  423  request as provided in subsection (7).
  424         (5) If a debt settlement advisor is requested, within 90
  425  days after a program is completed or terminated, to send a
  426  written copy of the materials required by s. 817.917, s.
  427  817.923, or s. 817.935, the debt settlement advisor shall send
  428  the materials at no charge within 3 business days after receipt
  429  of the request. However, the debt settlement advisor need not
  430  comply with a request more than once per calendar month or
  431  comply with a request that the advisor reasonably believes is
  432  made for purposes of harassment. If a request is made more than
  433  90 days after a program is completed or terminated, the debt
  434  settlement advisor shall send a written copy of the materials
  435  requested within 30 days.
  436         (6) If a debt settlement advisor maintains an Internet
  437  website, the debt settlement advisor shall disclose on the home
  438  page of the website or on a page that is clearly and
  439  conspicuously connected to the home page by a link that clearly
  440  reveals its contents:
  441         (a) The name or names under which the debt settlement
  442  advisor does business.
  443         (b) The principal business address, telephone number, and
  444  e-mail address, if any.
  445         (7) If a client who previously consents to electronic
  446  communication in the manner provided by s. 101(c)(1) of the
  447  federal act withdraws the consent as provided in the federal
  448  act, a debt settlement advisor may terminate the agreement with
  449  the client. If the debt settlement advisor wishes to terminate
  450  the agreement, he or she shall notify the client and, unless the
  451  client consents to electronic communication in the manner
  452  provided in s. 101(c)(1) of the federal act within 30 days after
  453  receiving the notice, the agreement is terminated.
  454         817.921 Form and contents of a debt settlement services
  455  agreement.—
  456         (1) A debt settlement services agreement must be in
  457  writing, dated and signed by the client and the debt settlement
  458  advisor, and delivered to the client immediately upon signing
  459  the agreement. The agreement must include:
  460         (a) The name and home address of the client.
  461         (b) The name, business address, and telephone number of the
  462  debt settlement advisor.
  463         (c) The debt settlement services to be provided.
  464         (d) The amount, or method of determining the amount, of all
  465  fees, individually itemized, to be paid by the client.
  466         (e) The process by which the debt settlement advisor will
  467  comply with his or her obligations under s. 817.935.
  468         (f) A statement that the client may cancel the agreement as
  469  provided in s. 817.923.
  470         (g) A disclosure that the client may contact the office
  471  with any questions or complaints regarding the debt settlement
  472  advisor.
  473         (h) The address, telephone number, and Internet address or
  474  website of the office.
  475         (2) For the purposes of subsection (1), delivery of an
  476  electronic record occurs when it is made available in a format
  477  that the client may retrieve, save, and print, and when the
  478  client is notified that the record is available.
  479         (3) If the office supplies the debt settlement advisor with
  480  any information required under paragraph (1)(h), the debt
  481  settlement advisor may comply with paragraph (1)(h) by
  482  disclosing the information supplied by the office.
  483         (4) An agreement must state that the client has a right to
  484  terminate the agreement at any time by giving the debt
  485  settlement advisor written or electronic notice, in which event
  486  all powers of attorney granted by the client to the debt
  487  settlement advisor are revoked and void.
  488         (5) An agreement may confer on a debt settlement advisor a
  489  power of attorney to settle a client’s debt for no more than 50
  490  percent of the outstanding amount of the debt and may confer a
  491  power of attorney to negotiate with the client’s creditors on
  492  behalf of the client. The debt settlement advisor must obtain
  493  the consent of the client before accepting a concession
  494  settlement of more than 50 percent of the outstanding amount of
  495  the debt.
  496         (6) A debt settlement services agreement may not:
  497         (a) Apply to the agreement any law of any jurisdiction
  498  other than the United States and this state.
  499         (b) Except as permitted by the Federal Arbitration Act, 9
  500  U.S.C. s. 2, as amended, or the Florida Arbitration Code in
  501  chapter 682, contain any modifications or limitations to
  502  otherwise available forums or procedural rights, including the
  503  right to trial by jury, which are generally available to the
  504  client under law and under this part;
  505         (c) Contain restrictions on a client’s remedies under this
  506  part or any other law.
  507         (d) Contain any provision that:
  508         1. Limits or releases the liability of any person for not
  509  performing the agreement or for violating this part.
  510         2. Indemnifies any person for liability arising under the
  511  agreement or this part.
  512         817.923 Cancellation of an agreement; waiver.—
  513         (1) A client may cancel an agreement before midnight of the
  514  3rd business day after the client executes the agreement.
  515  However, if a debt settlement services agreement does not comply
  516  with subsection (2), s. 817.921, or s. 817.937, the client may
  517  cancel the agreement within 30 days after the client executes
  518  the agreement. To exercise the right of cancellation, the client
  519  must give notice in a record to the debt settlement advisor.
  520  Notice by mail is given when mailed.
  521         (2) An agreement must be accompanied by a form that
  522  contains a notice of right of cancellation heading in bold-faced
  523  type underlined by bold black lines. The notice must be in
  524  substantially the following form:
  525  
  526                   NOTICE OF RIGHT OF CANCELLATION                 
  527  
  528         You may cancel this agreement, without any penalty or
  529         obligation, at any time before midnight of the 3rd
  530         business day after the day you sign the agreement or
  531         otherwise agree to it by electronic communication.
  532  
  533         To cancel this agreement during this period, send an
  534         e-mail to ...(e-mail address of debt settlement
  535         advisor)... or mail or deliver a signed, dated copy of
  536         this notice, or any other written notice to ...(name
  537         of debt settlement advisor)... at ...(address of debt
  538         settlement advisor)... before midnight of the 3rd
  539         business day after you executed the agreement.
  540  
  541         If you cancel this agreement within the 3-day period,
  542         we will refund all money you have already paid us.
  543  
  544         I cancel this agreement.
  545  
  546         ................
  547         Print your name
  548         ................
  549         Signature
  550         ................
  551         Date
  552  
  553         817.925 Required language; rules.—Unless provided otherwise
  554  by commission rule, the disclosures and documents required by
  555  this part must be in English. If a debt settlement advisor
  556  communicates with a client primarily in a language other than
  557  English, the debt settlement advisor must furnish a translation
  558  of the disclosures and documents required by this part.
  559         817.927 Fees and other charges.—
  560         (1) A debt settlement advisor may not impose, directly or
  561  indirectly, a fee or other charge on a client or receive money
  562  from or on behalf of a client for debt settlement services
  563  except as permitted by this section.
  564         (2) The total aggregate fees charged by a debt settlement
  565  advisor may not exceed 20 percent of the principal amount of the
  566  debt.
  567         (3) In addition to the fees authorized in subsection (2),
  568  if a client’s payment to a debt settlement advisor is not
  569  honored, the debt settlement advisor may impose a service fee
  570  not to exceed the service fees authorized under s. 832.08(5) or
  571  5 percent of the face amount of the check, draft, or order,
  572  whichever is greater, for collection of the dishonored check,
  573  draft, or other order for the payment of money.
  574         (4) A debt settlement advisor may not impose charges or
  575  receive payment for debt settlement services until the debt
  576  settlement advisor and the client sign a debt settlement
  577  services agreement.
  578         817.929 Voluntary contributions.—A debt settlement advisor
  579  may not solicit a voluntary contribution from a client for any
  580  debt settlement services provided to the client.
  581         817.931 Voidable agreements.—
  582         (1) If a debt settlement advisor imposes a fee or other
  583  charge or receives money or other payments not authorized by s.
  584  817.927, the client may void the agreement and recover the fees
  585  or charges as provided in s. 817.949.
  586         (2) If a debt settlement advisor is not licensed under this
  587  part at the time a client approves the debt settlement services
  588  agreement, the agreement is voidable by the client.
  589         (3) If a client voids an agreement pursuant to this
  590  section, the debt settlement advisor does not have a claim
  591  against the client for breach of contract or for restitution.
  592         817.933 Termination of agreements.—If a client fails to
  593  make payments required by the agreement for 60 days, a debt
  594  settlement advisor may terminate the agreement.
  595         817.935 Periodic reports; retention of records.—
  596         (1) A debt settlement advisor shall provide the accounting
  597  required by subsection (2) in the following cases:
  598         (a) After each settlement of a debt with a creditor on
  599  behalf of a client.
  600         (b) Within 5 business days after receiving a request by a
  601  client. However, the debt settlement advisor need not comply
  602  with more than one request from the client in any calendar
  603  month.
  604         (c) Upon cancelling or terminating an agreement.
  605         (2) If a creditor agrees to accept as payment in full an
  606  amount less than the principal amount of the debt owed by the
  607  client, the debt settlement advisor shall document, in a record,
  608  an accounting of all of the following:
  609         (a) The amount of the client’s debt when the creditor
  610  agrees to a settlement.
  611         (b) The amount of the debt that the creditor accepts as
  612  settlement in full.
  613         (c) Any other terms of the settlement.
  614         (d) For a debt settlement advisor who uses a fee agreement
  615  that calculates any portion of the fee based on a percentage of
  616  savings that the client realizes from a settled debt, the
  617  calculation of the fee.
  618         (3) A debt settlement advisor must maintain records for
  619  each client for whom the advisor provides debt settlement
  620  services for 4 years after the most recent date that the advisor
  621  received payment from the client. The debt settlement advisor
  622  shall produce a copy of the records for the client within a
  623  reasonable time after a request is received. The debt settlement
  624  advisor may use electronic or other means for storing records.
  625         817.937 Prohibited acts and practices of debt settlement
  626  advisors.—
  627         (1) A debt settlement advisor may not engage in any of the
  628  following practices:
  629         (a) Settle a debt on behalf of a client for more than 50
  630  percent of the amount of the debt owed to a creditor, unless the
  631  client explicitly consents to the settlement after the creditor
  632  agrees to the settlement.
  633         (b) Hold a power of attorney that authorizes a debt
  634  settlement advisor to settle a debt, unless the power of
  635  attorney expressly limits the debt settlement advisor’s
  636  authority to settle debts for not more than 50 percent of the
  637  amount of the debt owed to a creditor.
  638         (c) Exercise or attempt to exercise a power of attorney
  639  after a client terminates an agreement.
  640         (d) Initiate a transfer from a client’s bank account to
  641  another person unless the transfer is:
  642         1. A return of money to the client;
  643         2. Before termination of an agreement, payment of a fee
  644  properly authorized by the agreement and this part;
  645         3. A payment to a creditor to fund a negotiated settlement
  646  authorized by this part; or
  647         4. A payment to a creditor to fund a negotiated settlement
  648  of which both the settlement and transfer of money are
  649  authorized by the client.
  650         (e) Structure a settlement that results in a negative
  651  amortization of any of the client’s debts.
  652         (f) Settle a debt or lead a client to believe that a
  653  payment to a creditor is in settlement of a debt to the creditor
  654  unless, at the time of settlement, the client receives a
  655  certification or confirmation by the creditor that the payment
  656  is in full settlement of the debt or is part of a payment plan
  657  that is in full settlement of the debt.
  658         (g) Make a representation that:
  659         1. The debt settlement advisor will furnish money to pay
  660  bills or prevent attachments;
  661         2. Payment of a certain amount of money guarantees
  662  satisfaction of a certain amount or range of indebtedness;
  663         3. Participation in a program may prevent litigation,
  664  garnishment, attachment, repossession, foreclosure, eviction, or
  665  loss of employment;
  666         4. The debt settlement advisor is authorized or competent
  667  to furnish legal advice or perform legal services, unless such
  668  advice or services are provided by a licensed attorney working
  669  with the debt settlement advisor; or
  670         5. The debt settlement advisor is a not-for-profit entity,
  671  unless the debt settlement advisor is organized and properly
  672  operating as a corporation not for profit under chapter 617.
  673         (h) Employ deceptive and unfair trade practices, including
  674  the knowing omission of any material information.
  675         (2) If a debt settlement advisor furnishes debt settlement
  676  services to a client, the debt settlement advisor may not,
  677  directly or indirectly, engage in any of the following
  678  practices:
  679         (a) Purchase a debt or obligation of the client.
  680         (b) Receive from or on behalf of the client:
  681         1. A promissory note or other negotiable instrument other
  682  than a check or a demand draft; or
  683         2. A postdated check or demand draft.
  684         (c) Lend money or provide credit to the client, except as a
  685  deferral of a fee payment at no additional expense to the
  686  client.
  687         (d) Obtain a mortgage or other security interest from any
  688  person in connection with the services provided to the client.
  689         (e) Except as permitted by federal law, disclose the
  690  identity or identifying information of the client or the
  691  identity of the client’s creditors, except to:
  692         1. The office, upon proper demand;
  693         2. A creditor of the client, to the extent necessary to
  694  secure the cooperation of the creditor in a debt settlement
  695  program; or
  696         3. The extent necessary to administer the debt settlement
  697  program.
  698         (f) Except as otherwise provided in s. 817.927, provide the
  699  client less than the full benefit of a compromise of a debt
  700  arranged by the debt settlement advisor.
  701         (g) Furnish legal advice or perform legal services, unless
  702  the person furnishing the advice to, or performing the services
  703  for, the client is licensed to practice law.
  704         (h) Advise clients to stop payment on any of the accounts
  705  being handled by the debt settlement advisor.
  706         817.939 Advertising.—A debt settlement advisor that
  707  advertises debt settlement services may not make statements that
  708  are misleading or deceptive, and the advertisements may not
  709  conflict with the information specified in s. 817.917.
  710         817.941 Internal complaint policy.—Each debt settlement
  711  advisor shall establish a formal internal complaint policy that
  712  creates a process for the debt settlement advisor to receive,
  713  review, and address or resolve formal complaints internally. The
  714  availability of this process shall be communicated in writing to
  715  clients enrolled in the debt settlement advisor’s debt
  716  settlement program. This policy must include a provision that
  717  all clients who file a formal complaint will receive a response
  718  from the debt settlement advisor within 30 days after the debt
  719  settlement advisor’s receipt of the complaint. The debt
  720  settlement advisor shall maintain a file that documents each
  721  formal complaint and the handling and resolution of each
  722  complaint, and the debt settlement advisor shall disclose the
  723  file to the office upon request.
  724         817.943 Powers of administration; rules.—
  725         (1) The office may act on its own initiative or in response
  726  to a complaint. The office may seek voluntary compliance with
  727  this part or initiate enforcement actions as provided in this
  728  part.
  729         (2) The office may investigate and examine, by subpoena or
  730  otherwise, the activities, books, accounts, and records of a
  731  debt settlement advisor or any person to whom a debt settlement
  732  advisor delegates his or her obligations under an agreement or
  733  this part, in order to determine compliance with this part.
  734         (3) Each licensee and control person of the licensee’s
  735  business must maintain all books, accounts, documents, files,
  736  and information necessary for determining compliance with this
  737  part and commission rules adopted under this part for 5 years.
  738         (a) The records required under this part may be maintained
  739  by the licensee at any location identified in its license
  740  application or by amendment to the application. The licensee
  741  must make such records available to the office for examination
  742  and investigation in this state within 10 days after receipt of
  743  a written request.
  744         (b) The original of any record of a licensee includes a
  745  record stored or transmitted by electronic, computerized,
  746  mechanized, or other information storage or retrieval or
  747  transmission system or device that can generate, regenerate, or
  748  transmit the precise data or other information comprising the
  749  record. An original also includes the visible data or other
  750  information so generated, regenerated, or transmitted if it is
  751  legible or can be made legible by enlargement or other process.
  752         (4) In support of its enforcement powers, the office may:
  753         (a) Charge the debt settlement advisor the reasonable
  754  expenses necessarily incurred to conduct the examination.
  755         (b) Require or permit the debt settlement advisor to file a
  756  statement under oath as to all the facts and circumstances of
  757  the matter to be investigated.
  758         (c) Enter into a cooperative arrangement with any federal
  759  or state agency having authority over debt settlement advisors
  760  and exchange with any of those agencies information about a debt
  761  settlement advisor, including information obtained during an
  762  examination of the debt settlement advisor.
  763         (d) Establish reasonable fees to be paid by a debt
  764  settlement advisor for the expense of administering this
  765  section.
  766         (5) The commission may adopt rules to administer this part.
  767         817.945 Administrative remedies.—
  768         (1) The office may enforce this part by:
  769         (a) Ordering a debt settlement advisor, director, officer,
  770  or other control person of the debt settlement advisor’s
  771  business, or an agent thereof, to cease and desist from any
  772  violations of this part.
  773         (b) Ordering a debt settlement advisor who violates this
  774  part to correct the violation, including making restitution to
  775  the person aggrieved by the violation.
  776         (c) Imposing on a debt settlement advisor a civil penalty
  777  not to exceed $1,000 per violation.
  778         (d) Intervening in an action brought under s. 817.949.
  779         (e) Initiating an enforcement action in circuit court to
  780  enforce an order or to obtain restitution, an injunction, or
  781  another equitable relief.
  782         (2) The office may impose a fine not to exceed $1,000 per
  783  day for each day that a person engages in debt settlement
  784  services without a license.
  785         (3) If a person knowingly and willfully violates, or
  786  authorizes, directs, or aids another to violate, a final order
  787  issued under subsection (1), the office may impose an additional
  788  civil penalty not to exceed $1,000 per violation.
  789         (4) The office may recover the reasonable costs of
  790  enforcing this part, including reasonable attorney’s fees.
  791         (5) In determining the amount of a civil penalty to be
  792  imposed under subsection (1) or subsection (2), the office shall
  793  consider the seriousness of the violation, the good faith of the
  794  violator, any previous violations by the violator, the
  795  deleterious effect of the violation on the public, and any other
  796  fact relevant to the determination of the civil penalty.
  797         817.947 Suspension, revocation, or nonrenewal of license.—
  798         (1) The office may suspend, revoke, or deny the renewal of
  799  a debt settlement advisor license if:
  800         (a) A fact or condition exists that, if it existed when the
  801  debt settlement advisor applied for a debt settlement advisor
  802  license, the fact or condition would be a reason for denying the
  803  license.
  804         (b) The debt settlement advisor commits a material
  805  violation of this part, a commission rule adopted under this
  806  part, or an order of the office issued under this part.
  807         (c) The debt settlement advisor is insolvent.
  808         (d) The debt settlement advisor or a control person of the
  809  debt settlement advisor’s business refuses to permit the office
  810  to make an examination authorized by this part, failed to comply
  811  with s. 817.943(4)(b) within 30 days after request, or made a
  812  material misrepresentation or omission in complying with s.
  813  817.943(4)(b).
  814         (e) The debt settlement advisor does not respond within a
  815  reasonable time or in an appropriate manner to communications
  816  from the office.
  817         (2) A licensee must maintain the insurance coverage or bond
  818  at all times in the amount required under s. 817.907(2). If the
  819  office determines that the insurance coverage is insecure,
  820  deficient in amount, or exhausted in whole or in part, the
  821  office may suspend the licensee’s debt settlement advisor
  822  license, unless or until the licensee presents satisfactory
  823  evidence to the office that the coverage or bond is replaced.
  824         (3) Upon the suspension, revocation, or nonrenewal of a
  825  debt settlement advisor license, the licensee may request an
  826  administrative proceeding on the suspension, revocation, or
  827  nonrenewal pursuant to chapter 120.
  828         817.949 Private enforcement.—
  829         (1) If a client voids an agreement pursuant to s. 817.931,
  830  the client may recover in a civil action all money paid by or on
  831  behalf of the client pursuant to the agreement, in addition to
  832  the recovery of reasonable attorney’s fees and costs.
  833         (2) A client for whom a debt settlement advisor violates
  834  this part may recover in a civil action from the debt settlement
  835  advisor and any person that caused the violation:
  836         (a) Compensatory damages for economic injury caused by the
  837  violation.
  838         (b) Except as otherwise provided in subsection (3), the
  839  amount recoverable under subsection (1) or $1,000, whichever is
  840  greater.
  841         (c) Reasonable attorney’s fees and costs.
  842         (3) In addition to the remedy available under subsection
  843  (2), if a debt settlement advisor violates a client’s rights
  844  under s. 817.927, the client may recover in a civil action all
  845  money paid by or on behalf of the client pursuant to the
  846  agreement, except for the amounts paid to the creditors.
  847         (4) A debt settlement advisor is not liable for violating
  848  this part if he or she proves that the violation was not
  849  intentional and resulted from a good faith error notwithstanding
  850  the maintenance of procedures reasonably adapted to avoid the
  851  error. If, in connection with a violation, the debt settlement
  852  advisor receives more money than authorized by an agreement or
  853  this part, the defense provided by this subsection is not
  854  available unless the debt settlement advisor refunds the excess
  855  money within 3 business days after learning of the violation.
  856         817.951 Deceptive and unfair trade practices; effect on
  857  other remedies.—
  858         (1) A violation of this part is a deceptive and unfair
  859  trade practice and constitutes a violation of part II of chapter
  860  501.
  861         (2) This part is supplemental to, and makes no attempt to
  862  preempt, other consumer protection laws that are not
  863  inconsistent with this part.
  864         817.953 Statute of limitations.—
  865         (1) Any enforcement action must be commenced within 4 years
  866  after the violation occurs.
  867         (2) Any private enforcement action must be commenced within
  868  2 years after the latest of:
  869         (a) The client’s last transmission of money to the debt
  870  settlement advisor;
  871         (b) The date on which the client discovered or reasonably
  872  should have discovered the facts upon which the client’s claim
  873  is based; or
  874         (c) Termination of actions or proceedings by the office for
  875  a violation of this part.
  876         (3) Any limitation period prescribed in this section is
  877  tolled during any period in which the debt settlement advisor
  878  materially and willfully misrepresents information required to
  879  be disclosed to the client or the office by this part.
  880         817.955 Relation to the Electronic Signatures in Global and
  881  National Commerce Act.—This part modifies, limits, and
  882  supersedes the federal Electronic Signatures in Global and
  883  National Commerce Act, 15 U.S.C. ss. 7001 et seq., but does not
  884  modify, limit, or supersede s. 101(c) of the act, 15 U.S.C. s.
  885  7001(c), or authorize electronic delivery of any of the notices
  886  described in s. 103(b) of the act, 15 U.S.C. s. 7003(b).
  887         Section 2. If any provision of this act or the application
  888  thereof to any person or circumstance is held invalid, the
  889  invalidity does not affect other provisions or applications of
  890  the act which can be given effect without the invalid provision
  891  or application, and to this end the provisions of this act are
  892  declared severable.
  893         Section 3. This act shall take effect July 1, 2010.

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