Florida Senate - 2011                                    SB 1116
       
       
       
       By Senator Storms
       
       
       
       
       10-00467-11                                           20111116__
    1                        A bill to be entitled                      
    2         An act relating to debt buyers; amending s. 559.55,
    3         F.S.; providing a definition for “debt buyer”;
    4         amending ss. 559.553 and 559.565, F.S.; conforming
    5         cross-references; creating s. 559.717, F.S.; providing
    6         requirements for debt buyers; requiring a debt buyer
    7         to provide a receipt for any payments made by a
    8         debtor; providing acts that are prohibited by a debt
    9         buyer; providing the requirements for filing an action
   10         against a debtor by a debt buyer or for collecting
   11         attorney’s fees charged for collection services;
   12         providing requirements for obtaining a default or
   13         summary judgment against a debtor; providing penalties
   14         against a debt buyer for violations; providing an
   15         effective date.
   16  
   17  Be It Enacted by the Legislature of the State of Florida:
   18  
   19         Section 1. Section 559.55, Florida Statutes, is reordered
   20  and amended to read:
   21         559.55 Definitions.—As used in The following terms shall,
   22  unless the context otherwise indicates, have the following
   23  meanings for the purpose of this part, the term:
   24         (4)(1) “Debt” or “consumer debt” means any obligation or
   25  alleged obligation of a consumer to pay money arising out of a
   26  transaction in which the money, property, insurance, or services
   27  that which are the subject of the transaction are primarily for
   28  personal, family, or household purposes, whether or not such
   29  obligation has been reduced to judgment.
   30         (7)(2) “Debtor” or “consumer” means any natural person
   31  obligated or allegedly obligated to pay any debt.
   32         (3) “Creditor” means any person who offers or extends
   33  credit creating a debt or to whom a debt is owed, but does not
   34  include a any person who receives to the extent that they
   35  receive an assignment or transfer of a debt in default solely
   36  for the purpose of facilitating collection of such debt for
   37  another.
   38         (9)(4) “Office” means the Office of Financial Regulation of
   39  the Financial Services Commission.
   40         (1)(5) “Communication” means conveying the conveying of
   41  information regarding a debt directly or indirectly to any
   42  person through any medium.
   43         (5) “Debt buyer” means a creditor who is also engaged in
   44  the business of purchasing consumer debt for collection
   45  purposes, whether it collects the debt itself, hires a debt
   46  collector to collect the debt, or hires an attorney to litigate
   47  for the collection of the debt.
   48         (6) “Debt collector” means any person who uses any
   49  instrumentality of commerce within this state, whether initiated
   50  from within or outside this state, in any business whose the
   51  principal purpose of which is the collection of debts, or who
   52  regularly collects or attempts to collect, directly or
   53  indirectly, debts owed or due or asserted to be owed or due
   54  another. The term “debt collector” includes any creditor who, in
   55  the process of collecting her or his own debts, uses any name
   56  other than her or his own which indicates would indicate that a
   57  third person is collecting or attempting to collect such debts.
   58  The term does not include:
   59         (a) Any officer or employee of a creditor who while, in the
   60  name of the creditor, collects collecting debts for such
   61  creditor;
   62         (b) Any person while acting as a debt collector for another
   63  person, both of whom are related by common ownership or
   64  affiliated by corporate control, if the person acting as a debt
   65  collector for persons to whom it is so related or affiliated and
   66  if the principal business of such persons is not the collection
   67  of debts;
   68         (c) Any officer or employee of any federal, state, or local
   69  governmental body to the extent that collecting or attempting to
   70  collect any debt is in the performance of her or his official
   71  duties;
   72         (d) Any person while serving or attempting to serve legal
   73  process on any other person in connection with the judicial
   74  enforcement of a any debt;
   75         (e) Any not-for-profit organization that which, at the
   76  request of consumers, performs bona fide consumer credit
   77  counseling and assists consumers in the liquidation of their
   78  debts by receiving payments from such consumers and distributing
   79  such amounts to creditors; or
   80         (f) Any person collecting or attempting to collect any debt
   81  if owed or due or asserted to be owed or due another to the
   82  extent that such activity is incidental to a bona fide fiduciary
   83  obligation or a bona fide escrow arrangement; concerns a debt
   84  that which was originated by such person; concerns a debt that
   85  which was not in default at the time it was obtained by such
   86  person; or concerns a debt obtained by such person as a secured
   87  party in a commercial credit transaction involving the creditor.
   88         (2)(7) “Consumer collection agency” means any debt
   89  collector or business entity engaged in the business of
   90  soliciting consumer debts for collection or of collecting
   91  consumer debts, which debt collector or business is not
   92  expressly exempted under as set forth in s. 559.553(4).
   93         (10)(8) “Out-of-state consumer debt collector” means any
   94  person whose business activities in this state involve both
   95  collecting or attempting to collect consumer debt from debtors
   96  located in this state by means of interstate communication
   97  originating from outside this state and soliciting consumer debt
   98  accounts for collection from creditors who have a business
   99  presence in this state. For purposes of this subsection, a
  100  creditor has a business presence in this state if either the
  101  creditor or an affiliate or subsidiary of the creditor has an
  102  office in this state.
  103         (8)(9) “Federal Fair Debt Collection Practices Act” or
  104  “Federal Act” means the federal legislation regulating fair debt
  105  collection practices, as set forth in Pub. L. No. 95-109, as
  106  amended and published in 15 U.S.C. ss. 1692 et seq.
  107         Section 2. Subsection (5) of section 559.553, Florida
  108  Statutes, is amended to read:
  109         559.553 Registration of consumer collection agencies
  110  required; exemptions.—
  111         (5) An Any out-of-state consumer debt collector as defined
  112  in s. 559.55(8) who is not exempt from registration under by
  113  application of subsection (4) and who fails to register in
  114  accordance with this part is shall be subject to an enforcement
  115  action by the state as specified in s. 559.565.
  116         Section 3. Section 559.565, Florida Statutes, is amended to
  117  read:
  118         559.565 Enforcement action against out-of-state consumer
  119  debt collector.—The remedies of this section are cumulative to
  120  other sanctions and enforcement provisions of this part for any
  121  violation by an out-of-state consumer debt collector, as defined
  122  in s. 559.55(8).
  123         (1) An out-of-state consumer debt collector who collects or
  124  attempts to collect consumer debts in this state without first
  125  registering in accordance with this part is subject to an
  126  administrative fine of up to $10,000 together with reasonable
  127  attorney fees and court costs in any successful action by the
  128  state to collect such fines.
  129         (2) Any person, whether or not exempt from registration
  130  under this part, who violates s. 559.72 is subject to sanctions
  131  the same as any other consumer debt collector, including
  132  imposition of an administrative fine. The registration of a duly
  133  registered out-of-state consumer debt collector is subject to
  134  revocation or suspension in the same manner as the registration
  135  of any other registrant under this part.
  136         (3) In order to effectuate this section and enforce the
  137  requirements of this part as it relates to out-of-state consumer
  138  debt collectors, the Attorney General is expressly authorized to
  139  initiate such action on behalf of the state as he or she deems
  140  appropriate in any state or federal court of competent
  141  jurisdiction.
  142         Section 4. Section 559.717, Florida Statutes, is created to
  143  read:
  144         559.717Debt buyers.—
  145         (1) RECEIPT REQUIREMENTS.—If payment is received in cash by
  146  a debt buyer from a debtor, an original receipt must be
  147  furnished by the debt buyer to the debtor showing:
  148         (a) The name of the creditor for whom the payment is
  149  collected, the account number assigned by the creditor, and, if
  150  the current creditor is not the original creditor, the account
  151  number assigned to the debt by the original creditor;
  152         (b) The amount and date paid;
  153         (c) The name of the person accepting payment; and
  154         (d) A clear statement of whether the payment is accepted as
  155  payment in full or a full and final compromise of the debt, or
  156  if not, the balance due after payment is credited.
  157         (2) PROHIBITED ACTS.—A debt buyer may not bring suit or
  158  initiate an arbitration proceeding against the debtor, or
  159  otherwise attempt to collect on the debt:
  160         (a) If the debt buyer knows, or reasonably should know,
  161  that such collection is barred by the applicable statute of
  162  limitations or the debt has been discharged in bankruptcy;
  163         (b) Without valid documentation that the debt buyer is the
  164  owner of the debt instrument or account at issue and reasonable
  165  substantiation by admissible evidence and verification of the
  166  amount of the debt owed by the debtor. For purposes of this
  167  paragraph, reasonable substantiation by admissible evidence and
  168  verification requires:
  169         1. Documentation of the identity of the original creditor
  170  by providing a copy of the original written contract between the
  171  original creditor and debtor, or, if there is no written
  172  contract, the original application for credit by the debtor, or
  173  other writing evidencing the original debt, which must contain
  174  the debtor’s signature. If a claim is based on credit card debt
  175  or other revolving debt or open account and a signed writing
  176  evidencing the original debt does not exist, copies of each of
  177  the documents generated when the credit card was used or the
  178  items charged must be attached;
  179         2. The name and address of the debtor as it appears in the
  180  original creditor’s records;
  181         3. The debtor’s original account number;
  182         4. A life-of-the-debt itemized accounting of the amount
  183  owed, including all interest, fees, and charges and all
  184  payments, refunds, and credits;
  185         5. If there is an arbitration agreement, a valid, signed
  186  agreement to arbitrate the type of claim which is the subject of
  187  the arbitration; and
  188         6. If equitable relief is sought, documentation evidencing
  189  the amount paid for the debt by the debt buyer; and
  190         (c) Without first giving the debtor written notice of
  191  intent to file a legal action at least 30 days before filing the
  192  notice. The notice must include the name, address, and telephone
  193  number of the debt buyer; the name of the original creditor and
  194  the debtor’s original account number; a copy of the original
  195  written contract or other document evidencing the original debt;
  196  and a life-of-the-debt itemized accounting of all amounts
  197  claimed to be owed.
  198         (3) COMPLAINT AGAINST DEBTOR.—In any cause of action
  199  initiated by a debt buyer, all of the following must be attached
  200  to the complaint, which must be verified under oath:
  201         (a) A copy of the contract or other writing evidencing the
  202  original debt, which must contain the defendant’s signature. If
  203  there is no written contract, the original application for
  204  credit by the debtor or other writing evidencing the original
  205  debt, which must contain the debtor’s signature. If a claim is
  206  based on credit card debt or other revolving debt or open
  207  account and a signed writing evidencing the original debt does
  208  not exist, copies of each of the documents generated when the
  209  credit card was actually used or the items charged must be
  210  attached.
  211         (b) A copy of the assignment and all attachments referenced
  212  therein relating to the debt or other writing establishing that
  213  the plaintiff is the owner of the debt and a copy of all notices
  214  of assignment sent to the debtor. If the debt has been assigned
  215  more than once, each assignment and all attachments referenced
  216  therein relating to the debt or other writing evidencing
  217  transfer of ownership and establishing an unbroken chain of
  218  ownership must be attached. Each assignment or other writing
  219  evidencing transfer of ownership must contain the debtor’s
  220  original account number and clearly show the debtor’s name
  221  associated with that account number.
  222         (4) ATTORNEY’S FEES AND COSTS.—If attorney’s fees are
  223  charged for collection services rendered to a debt buyer, all of
  224  the following materials setting forth a party’s obligation to
  225  pay the fees must be provided to the court before a court may
  226  enforce those provisions:
  227         (a) A copy of the contract or other writing evidencing the
  228  original debt, which must contain the defendant’s signature. If
  229  a claim is based on credit card debt and a signed writing
  230  evidencing the original debt does not exist, copies of each of
  231  the documents generated when the credit card was used must be
  232  attached.
  233         (b) A copy of the assignment and all attachments referenced
  234  therein relating to the debt or other writing establishing that
  235  the plaintiff is the owner of the debt. If the debt has been
  236  assigned more than once, each assignment and all attachments
  237  referenced therein relating to the debt or other writing
  238  evidencing transfer of ownership and establishing an unbroken
  239  chain of ownership must be attached. Each assignment or other
  240  writing evidencing transfer of ownership must include the
  241  debtor’s original account number and clearly show the debtor’s
  242  name associated with the account number.
  243         (c) A verified copy of the fee agreement between the
  244  attorney seeking fees and the debt buyer, documenting the amount
  245  of fees payable by the debt buyer to the attorney for collection
  246  services.
  247         (d) Documentation of each item of costs claimed as
  248  recoverable, including the source of each cost and the invoice
  249  for the cost.
  250         (5) DEFAULT OR SUMMARY JUDGMENT AGAINST A DEBTOR.—
  251         (a) Before entry of a default judgment or summary judgment
  252  against a debtor in a verified complaint initiated by a debt
  253  buyer, the plaintiff must file competent, admissible evidence
  254  with the court to establish the amount and nature of the debt.
  255         (b) The only evidence sufficient to establish the amount
  256  and nature of the debt are properly authenticated business
  257  records that satisfy Rules 90.803(6) and 90.901, Florida Rules
  258  of Evidence. The authenticated business records must, at a
  259  minimum, include all of the following:
  260         1. The date of the origination of the debt.
  261         2. The original account number.
  262         3. The original creditor.
  263         4. The amount of the original debt or, if the debt involves
  264  open-end credit, the initial credit limit.
  265         5. A life-of-the-debt itemization of charges and fees owed
  266  and all payments, refunds, and credits and an explanation of how
  267  the outstanding balance was calculated.
  268         6. If the debt has been charged off, the original charge
  269  off balance.
  270         7. An itemization of post charge-off additions, if
  271  applicable.
  272         8. The date of assignment or purchase by the debt buyer and
  273  the outstanding balance at that time.
  274         9. The date and amount of last payment, together with
  275  independent documentation thereof.
  276         10. The amount of interest claimed throughout the
  277  transaction and the basis for the computation of the interest
  278  charged.
  279         (6) VIOLATIONS BY DEBT BUYER.—
  280         (a) Any debt buyer who violates any provisions of this
  281  section is liable to the debtor for statutory damages in the
  282  amount of the purported debt or $1,000, whichever is smaller,
  283  for each such violation, or, if a class action lawsuit is
  284  brought under this section, the lesser of 1 percent of the net
  285  worth of the debt buyer or $500,000, and actual damages,
  286  punitive damages, reasonable attorney’s fees and costs, and
  287  appropriate equitable relief. The remedies provided in the
  288  paragraph are cumulative and in addition to any other remedies
  289  available.
  290         (b) An action brought under this subsection must be
  291  commenced within 2 years after the date on which the alleged
  292  violation occurred.
  293         Section 5. This act shall take effect July 1, 2011.