June 03, 2020
Print This PagePrint This Page

  *
Session:
Bill #:
Session:
Chamber: View Search Tips
Search Term:
Year: View Search Tips
Search Term:
_h0311__
HB 311

1
A bill to be entitled
2An act relating to debt settlement services; creating part
3V of ch. 817, F.S.; providing a short title; defining
4terms; providing exemptions from the application of the
5part; requiring that a person be licensed if he or she
6provides or offers to provide debt settlement services to
7a client who resides in this state; providing for a
8license application and requiring a fee and proof of an
9insurance policy or surety bond; requiring the
10fingerprinting and background screening of licensees and
11certain personnel of the licensees' businesses; requiring
12certain persons to pay the costs of fingerprint
13processing; requiring an applicant or licensee to notify
14the Office of Financial Regulation of any change of the
15application information within a specified time; requiring
16the office to publicize certain information on its
17website; providing procedures for the approval or denial
18of initial applications for debt settlement advisor
19licenses; setting forth grounds for which the office may
20deny an application; authorizing an administrative
21proceeding upon denial of an application; requiring an
22annual license period; providing for expiration of
23licenses; specifying procedures for renewal of debt
24settlement advisor licenses; authorizing an administrative
25proceeding upon denial of a license renewal; authorizing
26certain licensed activity pending the outcome of an
27administrative proceeding; requiring debt settlement
28advisors to act in good faith and provide certain customer
29services; requiring debt settlement advisors to provide
30certain documents to prospective clients before signing
31debt settlement services agreements; authorizing debt
32settlement advisors to provide certain communications by
33electronic means in compliance with federal law;
34specifying requirements for the format and contents of
35debt settlement services agreements; authorizing clients
36to cancel such agreements within a specified period;
37specifying the contents of the cancellation form;
38requiring debt settlement providers to furnish certain
39documents in English and provide translations under
40certain circumstances; limiting the fees that debt
41settlement advisors may charge; prohibiting debt
42settlement advisors from soliciting voluntary
43contributions; authorizing clients to void debt settlement
44services agreements and recover fees under certain
45circumstances; authorizing debt settlement advisors to
46terminate such agreements under certain circumstances;
47requiring debt settlement advisors to provide clients with
48reports containing specified information under certain
49circumstances and keep such records for a specified
50period; prohibiting debt settlement advisors from engaging
51in certain acts and practices; prohibiting deceptive
52advertisements; requiring debt settlement advisors to
53establish internal complaint processes; specifying the
54powers of the Office of Financial Regulation to administer
55the part; authorizing the office to issue subpoenas;
56requiring licensees to keep certain records for a
57specified period and submit such records for examination
58by the office; authorizing the office to impose certain
59fees and charges; authorizing the Financial Services
60Commission to adopt rules; providing administrative
61remedies for violations of the part; authorizing the
62office to impose fines and civil penalties; authorizing
63the suspension, revocation, or nonrenewal of debt
64settlement advisor licenses under certain circumstances;
65authorizing an administrative proceeding upon the
66suspension, revocation, or nonrenewal of a license;
67authorizing civil actions for enforcement of the part;
68providing for the award of attorney's fees; declaring that
69violations of the part are deceptive and unfair trade
70practices; specifying that the part does not preempt other
71consumer protection laws; providing time limitations for
72commencing civil actions; providing for the part's
73application in relation to the Electronic Signatures in
74Global and National Commerce Act; providing for
75severability; providing an effective date.
76
77Be It Enacted by the Legislature of the State of Florida:
78
79     Section 1.  Part V of chapter 817, Florida Statutes,
80consisting of sections 817.901, 817.903, 817.905, 817.907,
81817.909, 817.911, 817.913, 817.915, 817.917, 817.919, 817.921,
82817.923, 817.925, 817.927, 817.929, 817.931, 817.933, 817.935,
83817.937, 817.939, 817.941, 817.943, 817.945, 817.947, 817.949,
84817.951, 817.953, and 817.955, is created to read:
85
PART V
86
DEBT SETTLEMENT SERVICES
87     817.901  Short title.--This part may be cited as the "Debt
88Settlement Services Act."
89     817.903  Definitions.--As used in this part, the term:
90     (1)  "Agreement" means an agreement between a debt
91settlement advisor and a client for the performance of debt
92settlement services.
93     (2)  "Bank" means a financial institution, including, but
94not limited to, a commercial bank, savings bank, savings and
95loan association, credit union, mortgage bank, or trust company,
96which is engaged in the business of banking, chartered under
97federal or state law, and regulated by a federal or state
98banking regulatory authority.
99     (3)  "Client" means a person who enters into an agreement
100with a debt settlement advisor for debt settlement services.
101     (4)  "Commission" means the Financial Services Commission.
102     (5)  "Concession" means consent to repay a debt on terms
103more favorable to a client than the terms of the original
104contract between the client and his or her creditor.
105     (6)  "Control person" means an individual, partnership,
106corporation, trust, or other organization that possesses the
107power, directly or indirectly, to direct the management or
108policies of a debt settlement advisor's business, whether
109through ownership of securities, by contract, or otherwise. A
110person is presumed to control a debt settlement advisor's
111business if the person:
112     (a)  Is a director, general partner, or officer exercising
113executive responsibility or having similar status or functions;
114     (b)  Directly or indirectly may vote 10 percent or more of
115a class of voting securities or sell or direct the sale of 10
116percent or more of a class of voting securities; or
117     (c)  In the case of a partnership, may receive upon
118dissolution or has contributed 10 percent or more of the
119capital.
120     (7)  "Debt settlement advisor" or "licensee" means a person
121licensed under this part to provide debt settlement services to
122a client. The term includes an employee or agent of a debt
123settlement advisor.
124     (8)  "Debt settlement services" means services provided by
125a debt settlement advisor who acts as an intermediary between a
126client and one or more unsecured creditors of the client for
127purposes of obtaining favorable concessions for the client. The
128term does not include the receipt of money from a client with
129the intent of distributing the money to the client's creditors.
130The term also does not include:
131     (a)  Legal services provided by an attorney licensed to
132practice law in this state;
133     (b)  Accounting services provided by a certified public
134accountant licensed to provide accounting services in this
135state; or
136     (c)  Financial planning services provided by a member of a
137financial planning profession.
138     (9)  "Federal act" means the federal Electronic Signatures
139in Global and National Commerce Act, 15 U.S.C. ss. 7001 et seq.,
140as amended.
141     (10)  "Good faith" means honesty in fact and the observance
142of reasonable standards of fair dealing.
143     (11)  "Insolvent" means:
144     (a)  Having generally ceased to pay debts in the ordinary
145course of business other than as a result of a good faith
146dispute;
147     (b)  Being unable to pay debts as they become due; or
148     (c)  Being insolvent within the meaning of the federal
149bankruptcy law, 11 U.S.C. ss. 101 et seq., as amended.
150     (12)  "Office" means the Office of Financial Regulation.
151     (13)  "Principal amount of a debt" means the amount of debt
152possessed by the client at the time he or she executes an
153agreement with a debt settlement advisor and before concessions
154are made by the client's creditors.
155     (14)  "Program" or "debt settlement program" means a
156process whereby a debt settlement advisor furnishes a crafted
157debt settlement plan to a client and negotiates on behalf of the
158client and, after an agreement, the client makes payments
159directly to his or her creditors.
160     (15)  "Record" means information that is inscribed on a
161tangible medium or stored in an electronic format or other
162medium and is retrievable in perceivable form.
163     817.905  Exemptions.--This part does not apply to:
164     (1)  A person who provides debt settlement services to a
165client but does not receive compensation for such services.
166     (2)  A judicial officer, a person acting under an order of
167a court or an administrative agency, or an assignee for the
168benefit of creditors.
169     (3)  A bank or its agent.
170     (4)  A title insurer, escrow company, or other entity that
171provides bill-paying services if the debt settlement services
172are incidental to the bill-paying services.
173     817.907  Debt settlement advisor license.--
174     (1)(a)  A person must be licensed under this part if he or
175she provides or offers to provide debt settlement services to a
176client who resides in this state.
177     (b)  A person seeking a debt settlement advisor license
178must apply to the office in the format prescribed by commission
179rule. An application must include:
180     1.  The applicant's name, principal business address and
181telephone number, and every e-mail address and Internet website
182address used by the applicant.
183     2.  The name under which the applicant will conduct
184business.
185     3.  The address of each location in this state, other than
186the applicant's principal business address, at which the
187applicant will provide debt settlement services, or a statement
188that the applicant will provide debt settlement services only at
189the principal business address.
190     4.  If the applicant is a business entity, the name and
191home address of each officer, director, and other control person
192of the business entity.
193     5.  A statement describing, to the extent it is known or
194should be known by the applicant, any civil or criminal
195judgments related to financial fraud or misuse, and any
196administrative or enforcement actions relating to financial
197fraud or misuse, by a governmental agency in any jurisdiction
198against the applicant or an officer, director, owner, or other
199control person, or an employee or agent, of the applicant's
200business.
201     6.  A copy of each debt settlement services agreement form
202that the applicant will use in providing services to clients.
203     7.  The schedule of fees and charges that the applicant
204intends to charge a client for debt settlement services
205rendered.
206     8.  A copy of the financial analysis or budget form that
207the applicant intends to use for reviewing a client's financial
208condition.
209     9.  A description of any ownership interest of 10 percent
210or more by a director, owner, or other control person, or by an
211employee, of the applicant's business in:
212     a.  Any entity that provides products or services to the
213applicant or any client of the applicant's debt settlement
214services; or
215     b.  Another control person of the applicant's business.
216     10.  Evidence that the applicant has a registered agent in
217this state of record with the Department of State.
218     11.  Any other information that the office reasonably
219requires to perform the duties of the office under s. 817.909.
220     (c)  An application must contain a statement informing the
221applicant that a false or dishonest answer to any question in
222the application may be grounds for denial or subsequent
223suspension or revocation of the applicant's license.
224     (2)  An applicant for a debt settlement advisor license
225must remit to the office a nonrefundable license fee established
226by commission rule not to exceed $350 and submit proof that:
227     (a)  The applicant is covered by a minimum insurance policy
228in an amount specified by commission rule; or
229     (b)  In lieu of an aggregate umbrella insurance policy, the
230applicant filed a surety bond with the office, in a form
231approved by commission rule, for a term of not less than the
232expiration date of the license. The bond must be in an amount of
233at least $10,000. However, the office may demand that an
234applicant file a bond of a larger amount if the office
235determines that the financial condition and business experience
236of the debt settlement advisor, the history of the debt
237settlement advisor in performing debt settlement services, and
238the risk to clients justify a larger surety bond. The office may
239not require a surety bond greater than $50,000. The surety bond
240must be in favor of the office for the benefit of any clients in
241this state who suffer loss arising out of debt settlement
242services from the debt settlement advisor.
243     (3)  Each applicant and control person of the applicant's
244business must submit fingerprints in accordance with commission
245rule.
246     (a)  The office may require that fingerprints be submitted
247to the office or a vendor acting on behalf of the office.
248     (b)  A state criminal history background screening must be
249conducted through the Department of Law Enforcement and a
250federal criminal history background screening must be conducted
251through the Federal Bureau of Investigation. The office is
252responsible for reviewing the results of the state and federal
253criminal history checks and determining whether the applicant
254meets licensure requirements.
255     (c)  The office may contract with third-party vendors that
256provide live scan fingerprinting in lieu of a paper fingerprint
257card.
258     (d)  All fingerprints submitted to the Department of Law
259Enforcement shall be submitted electronically and shall be
260entered into the statewide automated fingerprint identification
261system established in s. 943.05(2)(b) and shall be available for
262use in accordance with s. 943.05(2)(g) and (h). The office shall
263participate in this process by payment of an annual fee to the
264Department of Law Enforcement and by informing the Department of
265Law Enforcement of any person whose fingerprints should no
266longer be retained.
267     (e)  The costs of fingerprint processing, including the
268costs of retaining fingerprints, shall be borne by the person
269subject to the background screening.
270     (4)  An applicant or licensed debt settlement advisor shall
271notify the office whenever there is a change of the information
272specified in this section or s. 817.911 within 30 days after the
273change.
274     (5)  The office shall maintain and publicize on its
275Internet website the names and addresses of all licensed debt
276settlement advisors in this state.
277     817.909  Issuance or denial of licenses.--
278     (1)  An application is considered received for purposes of
279s. 120.60 upon receipt of a completed application as prescribed
280by commission rule, the nonrefundable license fee established
281pursuant to s. 817.907(2), and any other fee prescribed by law.
282     (2)  The office shall issue an initial license to a debt
283settlement advisor who complies with s. 817.907. The office may
284deny an application for an initial debt settlement advisor
285license if:
286     (a)  The application contains information that is
287materially erroneous or incomplete;
288     (b)  An officer, director, owner, or other control person
289of the applicant's business has been convicted of a crime or has
290had a civil judgment entered against him or her involving
291dishonesty or the violation of state or federal securities laws;
292     (c)  The application is not accompanied by the required
293fees established by the office; or
294     (d)  There is reasonable evidence that the applicant will
295not operate as a debt settlement advisor in a lawful, honest,
296and fair manner.
297     (3)  Upon denial of an initial application for a debt
298settlement advisor license, the applicant may request an
299administrative proceeding on the denial pursuant to chapter 120.
300     (4)  The commission shall establish by rule an annual
301license period. A debt settlement advisor license expires at the
302end of the license period for which the license is issued.
303     817.911  License renewal.--
304     (1)  A debt settlement advisor must annually renew his or
305her license to provide debt settlement services.
306     (2)  A person seeking licensure as a debt settlement
307advisor must apply to the office in the format prescribed by
308commission rule. A renewal application must:
309     (a)  Be filed at least 30 days, but no more than 60 days,
310before the current license expires.
311     (b)  Be accompanied by a nonrefundable renewal fee
312established by commission rule not to exceed the initial license
313fee established pursuant to s. 817.907(2) and the annual costs
314of fingerprint processing pursuant to s. 817.907(3)(d) and (e).
315     (c)  Disclose any changes in the information contained in
316the applicant's initial application for a license or in its
317immediately previous license renewal application, as
318appropriate.
319     (d)  Provide any other information that the office
320reasonably requires to perform its duties under this section.
321     (3)  The office shall renew the license of a debt
322settlement advisor who complies with this section. The office
323may deny a renewal application for any reason authorized in s.
324817.909(2) for denial of an initial application.
325     (4)  If a debt settlement advisor timely files a complete
326application for renewal of his or her license, the license
327remains in effect until the office notifies the applicant, in
328writing, whether the application is approved or denied. If the
329office denies a renewal application, the written notice to the
330debt settlement advisor must describe the reasons for the
331denial.
332     (5)(a)  Upon denial of an application to renew a debt
333settlement advisor license, the licensee may request an
334administrative proceeding on the denial pursuant to chapter 120.
335     (b)  If the office denies a renewal application and the
336applicant requests an administrative proceeding under chapter
337120, the debt settlement advisor may continue to provide debt
338settlement services to a client with whom the advisor has an
339agreement. If the denial of the license is affirmed, the debt
340settlement advisor must discontinue providing debt settlement
341services to clients and transfer the clients' agreements to
342other licensed debt settlement advisors.
343     817.913  Requirement of good faith.--A debt settlement
344advisor must act in good faith in all matters under this part.
345     817.915  Customer service.--A debt settlement advisor shall
346maintain a toll-free telephone service, staffed at a level that
347reasonably permits a client to speak to a customer service
348representative during ordinary business hours.
349     817.917  Prerequisites for providing debt settlement
350services.--
351     (1)  Before a debt settlement advisor may provide debt
352settlement services to a potential client, the debt settlement
353advisor must give the potential client an itemized list of goods
354and services available from the debt settlement advisor and the
355charges for each service rendered. The list and charges must be
356clear and conspicuous.
357     (2)  A debt settlement advisor may not furnish debt
358settlement services unless he or she prepares a financial
359analysis for the potential client.
360     (3)  Before signing an agreement with a potential client, a
361debt settlement advisor must:
362     (a)  Provide the potential client with a copy of the
363financial analysis and a written notice that identifies the debt
364settlement advisor and acknowledges that a potential client may
365keep the financial analysis even if he or she chooses not to
366become a client of the debt settlement advisor.
367     (b)  Inform the potential client of the availability, at
368his or her option, of assistance by a toll-free telephone
369service or in person to discuss the financial analysis required
370in subsection (2).
371     (c)  Inform the potential client that:
372     1.  Not all debt settlement programs are suitable for all
373clients.
374     2.  Participation in a debt settlement program may
375adversely affect a client's credit rating or credit scores.
376     3.  Nonpayment of debt may lead creditors to increase
377finance and other charges or undertake collection activity,
378including litigation.
379     4.  Unless a client is insolvent and a creditor settles for
380less than the full amount of the debt, participation in the
381program may result in the creation of taxable income to the
382client, even though the client does not receive any money.
383     5.  Specific results cannot be predicted or guaranteed and
384the debt settlement advisor cannot force negotiations or
385settlements with creditors who do not wish to participate in
386negotiations, but will nevertheless advocate on behalf of the
387client.
388     6.  The debt settlement program requires that a client meet
389a certain savings goal in order to maximize settlement results.
390     7.  The debt settlement advisor may provide accounting or
391legal advice to a client only if the debt settlement advisor is
392licensed to practice law in this state.
393     8.  The debt settlement advisor is a client's advocate and
394may not receive compensation from creditors, banks, or third-
395party collection agencies.
396     9.  The debt settlement advisor may not make monthly
397payments to a client's creditors.
398     817.919  Communication by electronic or other means.--
399     (1)  A debt settlement advisor may satisfy the requirements
400of s. 817.917, s. 817.923, or s. 817.935 through the Internet or
401other electronic means if the debt settlement advisor obtains
402the client's consent in the manner provided by s. 101(c)(1) of
403the federal act.
404     (2)  The disclosures and materials required by ss. 817.917,
405817.923, and 817.935 shall be presented in a format that can be
406accurately reproduced for later reference.
407     (3)  For disclosure through an Internet website, disclosure
408of the information required by s. 817.917 must appear on one or
409more screens that contain only the information required, and the
410client must be able to see the information on the screens before
411agreeing to participate in the program.
412     (4)  At the time of providing the materials or agreement
413required in s. 817.917, s. 817.923, or s. 817.935, a debt
414settlement advisor shall inform the client that upon electronic,
415telephonic, or written request, the advisor shall send the
416client a written copy of the materials and shall comply with a
417request as provided in subsection (7).
418     (5)  If a debt settlement advisor is requested, within 90
419days after a program is completed or terminated, to send a
420written copy of the materials required by s. 817.917, s.
421817.923, or s. 817.935, the debt settlement advisor shall send
422the materials at no charge within 3 business days after receipt
423of the request. However, the debt settlement advisor need not
424comply with a request more than once per calendar month or
425comply with a request that the advisor reasonably believes is
426made for purposes of harassment. If a request is made more than
42790 days after a program is completed or terminated, the debt
428settlement advisor shall send a written copy of the materials
429requested within 30 days.
430     (6)  If a debt settlement advisor maintains an Internet
431website, the debt settlement advisor shall disclose on the home
432page of the website or on a page that is clearly and
433conspicuously connected to the home page by a link that clearly
434reveals its contents:
435     (a)  The name or names under which the debt settlement
436advisor does business.
437     (b)  The principal business address, telephone number, and
438e-mail address, if any.
439     (7)  If a client who previously consents to electronic
440communication in the manner provided by s. 101(c)(1) of the
441federal act withdraws the consent as provided in the federal
442act, a debt settlement advisor may terminate the agreement with
443the client. If the debt settlement advisor wishes to terminate
444the agreement, he or she shall notify the client and, unless the
445client consents to electronic communication in the manner
446provided in s. 101(c)(1) of the federal act within 30 days after
447receiving the notice, the agreement is terminated.
448     817.921  Form and contents of a debt settlement services
449agreement.--
450     (1)  A debt settlement services agreement must be in
451writing, dated and signed by the client and the debt settlement
452advisor, and delivered to the client immediately upon signing
453the agreement. The agreement must include:
454     (a)  The name and home address of the client.
455     (b)  The name, business address, and telephone number of
456the debt settlement advisor.
457     (c)  The debt settlement services to be provided.
458     (d)  The amount, or method of determining the amount, of
459all fees, individually itemized, to be paid by the client.
460     (e)  The process by which the debt settlement advisor will
461comply with his or her obligations under s. 817.935.
462     (f)  A statement that the client may cancel the agreement
463as provided in s. 817.923.
464     (g)  A disclosure that the client may contact the office
465with any questions or complaints regarding the debt settlement
466advisor.
467     (h)  The address, telephone number, and Internet address or
468website of the office.
469     (2)  For the purposes of subsection (1), delivery of an
470electronic record occurs when it is made available in a format
471that the client may retrieve, save, and print, and when the
472client is notified that the record is available.
473     (3)  If the office supplies the debt settlement advisor
474with any information required under paragraph (1)(h), the debt
475settlement advisor may comply with paragraph (1)(h) by
476disclosing the information supplied by the office.
477     (4)  An agreement must state that the client has a right to
478terminate the agreement at any time by giving the debt
479settlement advisor written or electronic notice, in which event
480all powers of attorney granted by the client to the debt
481settlement advisor are revoked and void.
482     (5)  An agreement may confer on a debt settlement advisor a
483power of attorney to settle a client's debt for no more than 50
484percent of the outstanding amount of the debt and may confer a
485power of attorney to negotiate with the client's creditors on
486behalf of the client. The debt settlement advisor must obtain
487the consent of the client before accepting a concession
488settlement of more than 50 percent of the outstanding amount of
489the debt.
490     (6)  A debt settlement services agreement may not:
491     (a)  Apply to the agreement any law of any jurisdiction
492other than the United States and this state.
493     (b)  Except as permitted by the Federal Arbitration Act, 9
494U.S.C. s. 2, as amended, or the Florida Arbitration Code in
495chapter 682, contain any modifications or limitations to
496otherwise available forums or procedural rights, including the
497right to trial by jury, which are generally available to the
498client under law and under this part;
499     (c)  Contain restrictions on a client's remedies under this
500part or any other law.
501     (d)  Contain any provision that:
502     1.  Limits or releases the liability of any person for not
503performing the agreement or for violating this part.
504     2.  Indemnifies any person for liability arising under the
505agreement or this part.
506     817.923  Cancellation of an agreement; waiver.--
507     (1)  A client may cancel an agreement before midnight of
508the 3rd business day after the client executes the agreement.
509However, if a debt settlement services agreement does not comply
510with subsection (2), s. 817.921, or s. 817.937, the client may
511cancel the agreement within 30 days after the client executes
512the agreement. To exercise the right of cancellation, the client
513must give notice in a record to the debt settlement advisor.
514Notice by mail is given when mailed.
515     (2)  An agreement must be accompanied by a form that
516contains a notice of right of cancellation heading in bold-faced
517type underlined by bold black lines. The notice must be in
518substantially the following form:
519
520
NOTICE OF RIGHT OF CANCELLATION
521
522     You may cancel this agreement, without any penalty or
523obligation, at any time before midnight of the 3rd business
524day after the day you sign the agreement or otherwise agree
525to it by electronic communication.
526
527To cancel this agreement during this period, send an e-
528mail to ...(e-mail address of debt settlement advisor)...
529or mail or deliver a signed, dated copy of this notice, or
530any other written notice to ...(name of debt settlement
531advisor)... at ...(address of debt settlement advisor)...
532before midnight of the 3rd business day after you executed
533the agreement.
534
535If you cancel this agreement within the 3-day period, we
536will refund all money you have already paid us.
537
538     I cancel this agreement.
539
540     ................
541     Print your name
542     ................
543     Signature
544     ................
545     Date
546
547     817.925  Required language; rules.--Unless provided
548otherwise by commission rule, the disclosures and documents
549required by this part must be in English. If a debt settlement
550advisor communicates with a client primarily in a language other
551than English, the debt settlement advisor must furnish a
552translation of the disclosures and documents required by this
553part.
554     817.927  Fees and other charges.--
555     (1)  A debt settlement advisor may not impose, directly or
556indirectly, a fee or other charge on a client or receive money
557from or on behalf of a client for debt settlement services
558except as permitted by this section.
559     (2)  The total aggregate fees charged by a debt settlement
560advisor may not exceed 20 percent of the principal amount of the
561debt.
562     (3)  In addition to the fees authorized in subsection (2),
563if a client's payment to a debt settlement advisor is not
564honored, the debt settlement advisor may impose a service fee
565not to exceed the service fees authorized under s. 832.08(5) or
5665 percent of the face amount of the check, draft, or order,
567whichever is greater, for collection of the dishonored check,
568draft, or other order for the payment of money.
569     (4)  A debt settlement advisor may not impose charges or
570receive payment for debt settlement services until the debt
571settlement advisor and the client sign a debt settlement
572services agreement.
573     817.929  Voluntary contributions.--A debt settlement
574advisor may not solicit a voluntary contribution from a client
575for any debt settlement services provided to the client.
576     817.931  Voidable agreements.--
577     (1)  If a debt settlement advisor imposes a fee or other
578charge or receives money or other payments not authorized by s.
579817.927, the client may void the agreement and recover the fees
580or charges as provided in s. 817.949.
581     (2)  If a debt settlement advisor is not licensed under
582this part at the time a client approves the debt settlement
583services agreement, the agreement is voidable by the client.
584     (3)  If a client voids an agreement pursuant to this
585section, the debt settlement advisor does not have a claim
586against the client for breach of contract or for restitution.
587     817.933  Termination of agreements.--If a client fails to
588make payments required by the agreement for 60 days, a debt
589settlement advisor may terminate the agreement.
590     817.935  Periodic reports; retention of records.--
591     (1)  A debt settlement advisor shall provide the accounting
592required by subsection (2) in the following cases:
593     (a)  After each settlement of a debt with a creditor on
594behalf of a client.
595     (b)  Within 5 business days after receiving a request by a
596client. However, the debt settlement advisor need not comply
597with more than one request from the client in any calendar
598month.
599     (c)  Upon cancelling or terminating an agreement.
600     (2)  If a creditor agrees to accept as payment in full an
601amount less than the principal amount of the debt owed by the
602client, the debt settlement advisor shall document, in a record,
603an accounting of all of the following:
604     (a)  The amount of the client's debt when the creditor
605agrees to a settlement.
606     (b)  The amount of the debt that the creditor accepts as
607settlement in full.
608     (c)  Any other terms of the settlement.
609     (d)  For a debt settlement advisor who uses a fee agreement
610that calculates any portion of the fee based on a percentage of
611savings that the client realizes from a settled debt, the
612calculation of the fee.
613     (3)  A debt settlement advisor must maintain records for
614each client for whom the advisor provides debt settlement
615services for 4 years after the most recent date that the advisor
616received payment from the client. The debt settlement advisor
617shall produce a copy of the records for the client within a
618reasonable time after a request is received. The debt settlement
619advisor may use electronic or other means for storing records.
620     817.937  Prohibited acts and practices of debt settlement
621advisors.--
622     (1)  A debt settlement advisor may not engage in any of the
623following practices:
624     (a)  Settle a debt on behalf of a client for more than 50
625percent of the amount of the debt owed to a creditor, unless the
626client explicitly consents to the settlement after the creditor
627agrees to the settlement.
628     (b)  Hold a power of attorney that authorizes a debt
629settlement advisor to settle a debt, unless the power of
630attorney expressly limits the debt settlement advisor's
631authority to settle debts for not more than 50 percent of the
632amount of the debt owed to a creditor.
633     (c)  Exercise or attempt to exercise a power of attorney
634after a client terminates an agreement.
635     (d)  Initiate a transfer from a client's bank account to
636another person unless the transfer is:
637     1.  A return of money to the client;
638     2.  Before termination of an agreement, payment of a fee
639properly authorized by the agreement and this part;
640     3.  A payment to a creditor to fund a negotiated settlement
641authorized by this part; or
642     4.  A payment to a creditor to fund a negotiated settlement
643of which both the settlement and transfer of money are
644authorized by the client.
645     (e)  Structure a settlement that results in a negative
646amortization of any of the client's debts.
647     (f)  Settle a debt or lead a client to believe that a
648payment to a creditor is in settlement of a debt to the creditor
649unless, at the time of settlement, the client receives a
650certification or confirmation by the creditor that the payment
651is in full settlement of the debt or is part of a payment plan
652that is in full settlement of the debt.
653     (g)  Make a representation that:
654     1.  The debt settlement advisor will furnish money to pay
655bills or prevent attachments;
656     2.  Payment of a certain amount of money guarantees
657satisfaction of a certain amount or range of indebtedness;
658     3.  Participation in a program may prevent litigation,
659garnishment, attachment, repossession, foreclosure, eviction, or
660loss of employment;
661     4.  The debt settlement advisor is authorized or competent
662to furnish legal advice or perform legal services, unless such
663advice or services are provided by a licensed attorney working
664with the debt settlement advisor; or
665     5.  The debt settlement advisor is a not-for-profit entity,
666unless the debt settlement advisor is organized and properly
667operating as a corporation not for profit under chapter 617.
668     (h)  Employ deceptive and unfair trade practices, including
669the knowing omission of any material information.
670     (2)  If a debt settlement advisor furnishes debt settlement
671services to a client, the debt settlement advisor may not,
672directly or indirectly, engage in any of the following
673practices:
674     (a)  Purchase a debt or obligation of the client.
675     (b)  Receive from or on behalf of the client:
676     1.  A promissory note or other negotiable instrument other
677than a check or a demand draft; or
678     2.  A postdated check or demand draft.
679     (c)  Lend money or provide credit to the client, except as
680a deferral of a fee payment at no additional expense to the
681client.
682     (d)  Obtain a mortgage or other security interest from any
683person in connection with the services provided to the client.
684     (e)  Except as permitted by federal law, disclose the
685identity or identifying information of the client or the
686identity of the client's creditors, except to:
687     1.  The office, upon proper demand;
688     2.  A creditor of the client, to the extent necessary to
689secure the cooperation of the creditor in a debt settlement
690program; or
691     3.  The extent necessary to administer the debt settlement
692program.
693     (f)  Except as otherwise provided in s. 817.927, provide
694the client less than the full benefit of a compromise of a debt
695arranged by the debt settlement advisor.
696     (g)  Furnish legal advice or perform legal services, unless
697the person furnishing the advice to, or performing the services
698for, the client is licensed to practice law.
699     (h)  Advise clients to stop payment on any of the accounts
700being handled by the debt settlement advisor.
701     817.939  Advertising.--A debt settlement advisor that
702advertises debt settlement services may not make statements that
703are misleading or deceptive, and the advertisements may not
704conflict with the information specified in s. 817.917.
705     817.941  Internal complaint policy.--Each debt settlement
706advisor shall establish a formal internal complaint policy that
707creates a process for the debt settlement advisor to receive,
708review, and address or resolve formal complaints internally. The
709availability of this process shall be communicated in writing to
710clients enrolled in the debt settlement advisor's debt
711settlement program. This policy must include a provision that
712all clients who file a formal complaint will receive a response
713from the debt settlement advisor within 30 days after the debt
714settlement advisor's receipt of the complaint. The debt
715settlement advisor shall maintain a file that documents each
716formal complaint and the handling and resolution of each
717complaint, and the debt settlement advisor shall disclose the
718file to the office upon request.
719     817.943  Powers of administration; rules.--
720     (1)  The office may act on its own initiative or in
721response to a complaint. The office may seek voluntary
722compliance with this part or initiate enforcement actions as
723provided in this part.
724     (2)  The office may investigate and examine, by subpoena or
725otherwise, the activities, books, accounts, and records of a
726debt settlement advisor or any person to whom a debt settlement
727advisor delegates his or her obligations under an agreement or
728this part, in order to determine compliance with this part.
729     (3)  Each licensee and control person of the licensee's
730business must maintain all books, accounts, documents, files,
731and information necessary for determining compliance with this
732part and commission rules adopted under this part for 5 years.
733     (a)  The records required under this part may be maintained
734by the licensee at any location identified in its license
735application or by amendment to the application. The licensee
736must make such records available to the office for examination
737and investigation in this state within 10 days after receipt of
738a written request.
739     (b)  The original of any record of a licensee includes a
740record stored or transmitted by electronic, computerized,
741mechanized, or other information storage or retrieval or
742transmission system or device that can generate, regenerate, or
743transmit the precise data or other information comprising the
744record. An original also includes the visible data or other
745information so generated, regenerated, or transmitted if it is
746legible or can be made legible by enlargement or other process.
747     (4)  In support of its enforcement powers, the office may:
748     (a)  Charge the debt settlement advisor the reasonable
749expenses necessarily incurred to conduct the examination.
750     (b)  Require or permit the debt settlement advisor to file
751a statement under oath as to all the facts and circumstances of
752the matter to be investigated.
753     (c)  Enter into a cooperative arrangement with any federal
754or state agency having authority over debt settlement advisors
755and exchange with any of those agencies information about a debt
756settlement advisor, including information obtained during an
757examination of the debt settlement advisor.
758     (d)  Establish reasonable fees to be paid by a debt
759settlement advisor for the expense of administering this
760section.
761     (5)  The commission may adopt rules to administer this
762part.
763     817.945  Administrative remedies.--
764     (1)  The office may enforce this part by:
765     (a)  Ordering a debt settlement advisor, director, officer,
766or other control person of the debt settlement advisor's
767business, or an agent thereof, to cease and desist from any
768violations of this part.
769     (b)  Ordering a debt settlement advisor who violates this
770part to correct the violation, including making restitution to
771the person aggrieved by the violation.
772     (c)  Imposing on a debt settlement advisor a civil penalty
773not to exceed $1,000 per violation.
774     (d)  Intervening in an action brought under s. 817.949.
775     (e)  Initiating an enforcement action in circuit court to
776enforce an order or to obtain restitution, an injunction, or
777another equitable relief.
778     (2)  The office may impose a fine not to exceed $1,000 per
779day for each day that a person engages in debt settlement
780services without a license.
781     (3)  If a person knowingly and willfully violates, or
782authorizes, directs, or aids another to violate, a final order
783issued under subsection (1), the office may impose an additional
784civil penalty not to exceed $1,000 per violation.
785     (4)  The office may recover the reasonable costs of
786enforcing this part, including reasonable attorney's fees.
787     (5)  In determining the amount of a civil penalty to be
788imposed under subsection (1) or subsection (2), the office shall
789consider the seriousness of the violation, the good faith of the
790violator, any previous violations by the violator, the
791deleterious effect of the violation on the public, and any other
792fact relevant to the determination of the civil penalty.
793     817.947  Suspension, revocation, or nonrenewal of
794license.--
795     (1)  The office may suspend, revoke, or deny the renewal of
796a debt settlement advisor license if:
797     (a)  A fact or condition exists that, if it existed when
798the debt settlement advisor applied for a debt settlement
799advisor license, the fact or condition would be a reason for
800denying the license.
801     (b)  The debt settlement advisor commits a material
802violation of this part, a commission rule adopted under this
803part, or an order of the office issued under this part.
804     (c)  The debt settlement advisor is insolvent.
805     (d)  The debt settlement advisor or a control person of the
806debt settlement advisor's business refuses to permit the office
807to make an examination authorized by this part, failed to comply
808with s. 817.943(4)(b) within 30 days after request, or made a
809material misrepresentation or omission in complying with s.
810817.943(4)(b).
811     (e)  The debt settlement advisor does not respond within a
812reasonable time or in an appropriate manner to communications
813from the office.
814     (2)  A licensee must maintain the insurance coverage or
815bond at all times in the amount required under s. 817.907(2). If
816the office determines that the insurance coverage is insecure,
817deficient in amount, or exhausted in whole or in part, the
818office may suspend the licensee's debt settlement advisor
819license, unless or until the licensee presents satisfactory
820evidence to the office that the coverage or bond is replaced.
821     (3)  Upon the suspension, revocation, or nonrenewal of a
822debt settlement advisor license, the licensee may request an
823administrative proceeding on the suspension, revocation, or
824nonrenewal pursuant to chapter 120.
825     817.949  Private enforcement.--
826     (1)  If a client voids an agreement pursuant to s. 817.931,
827the client may recover in a civil action all money paid by or on
828behalf of the client pursuant to the agreement, in addition to
829the recovery of reasonable attorney's fees and costs.
830     (2)  A client for whom a debt settlement advisor violates
831this part may recover in a civil action from the debt settlement
832advisor and any person that caused the violation:
833     (a)  Compensatory damages for economic injury caused by the
834violation.
835     (b)  Except as otherwise provided in subsection (3), the
836amount recoverable under subsection (1) or $1,000, whichever is
837greater.
838     (c)  Reasonable attorney's fees and costs.
839     (3)  In addition to the remedy available under subsection
840(2), if a debt settlement advisor violates a client's rights
841under s. 817.927, the client may recover in a civil action all
842money paid by or on behalf of the client pursuant to the
843agreement, except for the amounts paid to the creditors.
844     (4)  A debt settlement advisor is not liable for violating
845this part if he or she proves that the violation was not
846intentional and resulted from a good faith error notwithstanding
847the maintenance of procedures reasonably adapted to avoid the
848error. If, in connection with a violation, the debt settlement
849advisor receives more money than authorized by an agreement or
850this part, the defense provided by this subsection is not
851available unless the debt settlement advisor refunds the excess
852money within 3 business days after learning of the violation.
853     817.951  Deceptive and unfair trade practices; effect on
854other remedies.--
855     (1)  A violation of this part is a deceptive and unfair
856trade practice and constitutes a violation of part II of chapter
857501.
858     (2)  This part is supplemental to, and makes no attempt to
859preempt, other consumer protection laws that are not
860inconsistent with this part.
861     817.953  Statute of limitations.--
862     (1)  Any enforcement action must be commenced within 4
863years after the violation occurs.
864     (2)  Any private enforcement action must be commenced
865within 2 years after the latest of:
866     (a)  The client's last transmission of money to the debt
867settlement advisor;
868     (b)  The date on which the client discovered or reasonably
869should have discovered the facts upon which the client's claim
870is based; or
871     (c)  Termination of actions or proceedings by the office
872for a violation of this part.
873     (3)  Any limitation period prescribed in this section is
874tolled during any period in which the debt settlement advisor
875materially and willfully misrepresents information required to
876be disclosed to the client or the office by this part.
877     817.955  Relation to the Electronic Signatures in Global
878and National Commerce Act.--This part modifies, limits, and
879supersedes the federal Electronic Signatures in Global and
880National Commerce Act, 15 U.S.C. ss. 7001 et seq., but does not
881modify, limit, or supersede s. 101(c) of the act, 15 U.S.C. s.
8827001(c), or authorize electronic delivery of any of the notices
883described in s. 103(b) of the act, 15 U.S.C. s. 7003(b).
884     Section 2.  If any provision of this act or the application
885thereof to any person or circumstance is held invalid, the
886invalidity does not affect other provisions or applications of
887the act which can be given effect without the invalid provision
888or application, and to this end the provisions of this act are
889declared severable.
890     Section 3.  This act shall take effect July 1, 2010.


CODING: Words stricken are deletions; words underlined are additions.
Site Map
Session:   Bills ·   Calendars ·   Bound Journals ·   Citator ·   Search ·   Appropriations ·   Redistricting ·   Bill Information Reports
Committee Publications
Historical Information
Statutes:   Introduction ·   View Statutes ·   Search Statutes
Flsenate.gov
Disclaimer: The information on this system is unverified. The journals or printed bills of the respective chambers should be consulted for official purposes.    Copyright © 2000-2020 State of Florida.     Privacy Statement     Contact Us     Get Acrobat Reader