Florida Senate - 2012                              CS for SB 336
       
       
       
       By the Committee on Banking and Insurance; and Senators Richter
       and Gaetz
       
       
       
       597-02034-12                                           2012336c1
    1                        A bill to be entitled                      
    2         An act relating to debt settlement services; amending
    3         s. 817.801, F.S.; defining terms and revising
    4         definitions; amending s. 817.802, F.S.; conforming a
    5         cross-reference; amending s. 817.803, F.S.; clarifying
    6         that an attorney is exempt from regulation under part
    7         IV of ch. 817, F.S., under certain circumstances;
    8         creating s. 817.8035, F.S.; requiring that debt
    9         settlement services be provided pursuant to a debt
   10         settlement plan; requiring a debt settlement provider
   11         to make certain disclosures to the debtor before a
   12         debtor consents to payment; prohibiting a debt
   13         settlement provider from making certain
   14         misrepresentations to a debtor; providing certain
   15         conditions that a debt settlement provider must meet
   16         before receiving payment; providing that a debtor may
   17         withdraw any account funds placed with a debt
   18         settlement provider at any time without penalty;
   19         amending s. 817.804, F.S.; extending auditing and
   20         insurance requirements to persons providing debt
   21         settlement services; amending s. 817.805, F.S.;
   22         authorizing a debt settlement provider to hold funds
   23         in order to allow the funds to accumulate; providing a
   24         directive to the Division of Statutory Revision;
   25         providing for applicability; providing an effective
   26         date.
   27  
   28  Be It Enacted by the Legislature of the State of Florida:
   29  
   30         Section 1. Section 817.801, Florida Statutes, is amended to
   31  read:
   32         817.801 Definitions.—As used in this part, the term:
   33         (1) “Credit counseling agency” means an any organization
   34  providing debt management services or credit counseling
   35  services.
   36         (2) “Credit counseling services” means confidential money
   37  management, debt reduction, and financial educational services.
   38         (3) “Creditor contribution” means any sum that a creditor
   39  agrees to contribute to a credit counseling agency, whether
   40  directly or by setoff against amounts otherwise payable to the
   41  creditor on behalf of a debtor debtors.
   42         (4) “Debt management plan” means a written agreement or
   43  contract between a credit counseling agency and a debtor whereby
   44  the credit counseling agency, in return for a direct or indirect
   45  payment by the debtor of fees not exceeding those specified in
   46  s. 817.802, will provide credit counseling services or debt
   47  management services that contemplate that the debtor’s creditors
   48  will reduce finance charges or fees incurred by the debtor for
   49  late payment, default, or delinquency.
   50         (5)(4) “Debt management services” means services provided
   51  to a debtor pursuant to a debt management plan by a credit
   52  counseling agency organization for a fee to:
   53         (a) Effect the adjustment, compromise, reduction of
   54  interest rate or fees, modification of terms, negotiation, or
   55  discharge of any unsecured account, note, or other indebtedness
   56  of the debtor; or
   57         (b) Receive from the debtor and disburse to a creditor any
   58  money or other thing of value with the expectation that the
   59  debtor will repay the entire principal amount of the unsecured
   60  debt owed to the creditor.
   61  
   62  Debt management services do not include debt settlement
   63  services.
   64         (6) “Debt settlement plan” means a written agreement or
   65  contract between a debt settlement provider and a debtor whereby
   66  the provider, in return for payment by the debtor, will provide
   67  debt settlement services that contemplate that creditors of the
   68  debtor will settle debts for less than the principal amount of
   69  the debt.
   70         (7) “Debt settlement provider” means any person providing
   71  debt settlement services.
   72         (8) “Debt settlement services” means services provided to a
   73  debtor with the expectation of obtaining the agreement of the
   74  debtor’s creditors to accept less than the principal amount of
   75  the debtor’s unsecured debt in full satisfaction of the debt.
   76  Debt settlement services do not include debt management
   77  services.
   78         (9)(5) “Person” means any individual, corporation,
   79  partnership, trust, association, or other legal entity.
   80         (10) “Principal amount of the debt” means the total
   81  outstanding balance of each unsecured debt included in a debt
   82  management plan or debt settlement plan, including accumulated
   83  interest and penalties that are not subject to an initial
   84  concession by a creditor pursuant to the debt management plan,
   85  and which are calculated individually and in the aggregate as of
   86  the date the plan is executed.
   87         Section 2. Subsection (1) of section 817.802, Florida
   88  Statutes, is amended to read:
   89         817.802 Unlawful fees and costs.—
   90         (1) It is unlawful for any person, while engaging in debt
   91  management services or credit counseling services, to charge or
   92  accept from a debtor residing in this state, directly or
   93  indirectly, a fee or contribution greater than $50 for the
   94  initial setup or initial consultation. Subsequently, the person
   95  may not charge or accept a fee or contribution from a debtor
   96  residing in this state greater than $120 per year for additional
   97  consultations or, alternatively, if debt management services as
   98  defined in s. 817.801(5)(b) 817.801(4)(b) are provided, the
   99  person may charge the greater of 7.5 percent of the amount paid
  100  monthly by the debtor to the person or $35 per month.
  101         Section 3. Section 817.803, Florida Statutes, is amended to
  102  read:
  103         817.803 Exceptions.—Nothing in This part does not apply
  104  applies to:
  105         (1) An attorney licensed to practice law in this state who
  106  is providing debt management, credit counseling, or debt
  107  settlement services and who, in providing such services, is
  108  acting in compliance with the Florida Rules of Professional
  109  Conduct. Any debt management or credit counseling services
  110  provided in the practice of law in this state;
  111         (2) A Any person who engages in debt adjustment to adjust
  112  the indebtedness owed to such person.; or
  113         (3) The following entities or their subsidiaries:
  114         (a) The Federal National Mortgage Association;
  115         (b) The Federal Home Loan Mortgage Corporation;
  116         (c) The Florida Housing Finance Corporation, a public
  117  corporation created in s. 420.504;
  118         (d) A bank, bank holding company, trust company, savings
  119  and loan association, credit union, credit card bank, or savings
  120  bank that is regulated and supervised by the Office of the
  121  Comptroller of the Currency, the Office of Thrift Supervision,
  122  the Federal Reserve, the Federal Deposit Insurance Corporation,
  123  the National Credit Union Administration, the Office of
  124  Financial Regulation of the Department of Financial Services, or
  125  any state banking regulator;
  126         (e) A consumer reporting agency as defined in the Federal
  127  Fair Credit Reporting Act, 15 U.S.C. ss. 1681-1681y, as it
  128  existed on April 5, 2004; or
  129         (f) Any subsidiary or affiliate of a bank holding company,
  130  its employees and its exclusive agents acting under written
  131  agreement.
  132         Section 4. Section 817.8035, Florida Statutes, is created
  133  to read:
  134         817.8035 Debt settlement plans; disclosures to debtor;
  135  payments; refunds.—
  136         (1) Debt settlement services provided to a debtor residing
  137  in this state may be provided only pursuant to a debt settlement
  138  plan that complies with this part.
  139         (2) Before a debtor consents to payment for debt settlement
  140  services, the debt settlement provider must disclose, in writing
  141  and in a clear and conspicuous manner, all of the following
  142  material information:
  143         (a) The amount of time necessary to achieve the represented
  144  results and, to the extent that the debt settlement service may
  145  include a settlement offer to any of the debtor’s creditors or
  146  debt collectors, the anticipated time by which the debt
  147  settlement provider will make a bona fide settlement offer to
  148  each of them.
  149         (b) To the extent that the debt settlement service may
  150  include a settlement offer to any of the debtor’s creditors or
  151  debt collectors, the amount of money or the percentage of each
  152  outstanding debt that the debtor must accumulate before the debt
  153  settlement provider will make a bona fide settlement offer to
  154  each of them.
  155         (c) To the extent that any aspect of the debt settlement
  156  service relies upon or results in the debtor’s failure to make
  157  timely payments to creditors or debt collectors, that the use of
  158  the debt settlement service will likely adversely affect the
  159  debtor’s creditworthiness, may result in the debtor being
  160  subject to collection actions or sued by creditors or debt
  161  collectors, and may increase the amount of money the debtor owes
  162  due to the accrual of fees and interest.
  163         (d) To the extent that the debt settlement provider
  164  requests or requires the debtor to place funds in an account at
  165  a state or federal financial institution insured by the Federal
  166  Deposit Insurance Corporation or the National Credit Union Share
  167  Insurance Fund, that the debtor owns the funds held in the
  168  account, the debtor may withdraw such funds from the debt
  169  settlement service at any time without penalty, and, if the
  170  debtor requests to withdraw such funds, the debtor must receive
  171  all funds in the account, other than funds earned by the debt
  172  settlement provider, within 7 business days after the debtor’s
  173  request.
  174         (3) A debt settlement provider may not misrepresent,
  175  directly or by implication, any material aspect of any debt
  176  settlement service, including, but not limited to, the amount of
  177  money or the percentage of the debt amount which a debtor may
  178  save by using such service; the amount of time necessary to
  179  achieve the represented results; the amount of money or the
  180  percentage of each outstanding debt the debtor must accumulate
  181  before the debt settlement provider will initiate attempts or
  182  make a bona fide offer to negotiate, settle, or modify the terms
  183  of the debtor’s debt with the debtor’s creditors or debt
  184  collectors; the effect of the service on a debtor’s
  185  creditworthiness; the effect of the service on the collection
  186  efforts of the debtor’s creditors or debt collectors; the
  187  percentage or number of debtors who attain the represented
  188  results; and whether a debt settlement service is offered or
  189  provided by a nonprofit entity.
  190         (4) A debt settlement provider may not receive payment of
  191  any fee or consideration for any debt settlement service until:
  192         (a) The debt settlement provider has renegotiated, settled,
  193  reduced, or otherwise altered the terms of at least one debt
  194  pursuant to a debt settlement plan;
  195         (b) The debtor has made at least one payment pursuant to
  196  that debt settlement plan; and
  197         (c) The fee or consideration for settling each individual
  198  debt enrolled in a debt settlement plan is a percentage of the
  199  amount saved as a result of the settlement. The percentage
  200  charged may not change from one individual debt to another and
  201  may not exceed 30 percent of the amount saved. The amount saved
  202  is the difference between the amount owed at the time the debtor
  203  enrolled in the debt settlement plan and the amount actually
  204  paid to satisfy the debt.
  205         (5) This section does not prohibit a debt settlement
  206  provider from requesting or requiring the debtor to place funds
  207  in an account to be used for the debt settlement provider’s fees
  208  and for payments to creditors or debt collectors in connection
  209  with a renegotiation, settlement, reduction, or other alteration
  210  of the terms of payment or other terms of a debt if:
  211         (a) The funds are held in an account at a state or federal
  212  financial institution insured by the Federal Deposit Insurance
  213  Corporation or the National Credit Union Share Insurance Fund;
  214         (b) The debtor owns the funds held in the account and is
  215  paid accrued interest on the account, if any;
  216         (c) The entity administering the account is not owned or
  217  controlled by, or in any way affiliated with, the debt
  218  settlement provider; and
  219         (d) The entity administering the account does not give or
  220  accept any money or other compensation in exchange for referrals
  221  of business by the debt settlement provider.
  222         (6) The debtor may withdraw from the debt settlement
  223  service at any time without penalty, and must receive all funds
  224  held in the account, other than funds earned by the debt
  225  settlement provider in compliance with this part, within 7
  226  business days after the debtor’s request.
  227         Section 5. Subsection (1) of section 817.804, Florida
  228  Statutes, is amended to read:
  229         817.804 Requirements; disclosure and financial reporting.—
  230         (1) Any person engaged in debt management services, debt
  231  settlement services, or credit counseling services shall:
  232         (a) Obtain from a licensed certified public accountant an
  233  annual audit in accordance with generally accepted auditing
  234  standards which includes that shall include all accounts of such
  235  person in which the funds of debtors are deposited and from
  236  which payments are made to creditors on behalf of debtors. If
  237  another person administers accounts on behalf of a debtor under
  238  agreement with a debt settlement provider, or under the
  239  direction or control of that provider, the audit must include
  240  all accounts in which the funds of residents of this state are
  241  deposited and from which payments are made at the direction or
  242  control of the debt settlement provider or its affiliate.
  243         (b) Obtain and maintain at all times insurance coverage for
  244  employee dishonesty, depositor’s forgery, and computer fraud.
  245  The insurance coverage must be in an amount not less than the
  246  greater of $100,000 or 10 percent of the monthly average of the
  247  aggregate amount of all deposits made for distribution to
  248  creditors with such person by all debtors for the 6 months
  249  immediately preceding the date of initial application for or
  250  renewal of the insurance. The deductible on such coverage may
  251  shall not exceed 10 percent of the face amount of the policy
  252  coverage.
  253         Section 6. Section 817.805, Florida Statutes, is amended to
  254  read:
  255         817.805 Disbursement of funds.—Any person engaged in debt
  256  management, debt settlement, or credit counseling services shall
  257  disburse to the appropriate creditors all funds received from a
  258  debtor, less any fees permitted by s. 817.802 and any creditor
  259  contributions, within 30 days after receipt of such funds,
  260  unless, under a debt settlement plan, reasonable payment of one
  261  or more of the debtor’s obligations requires that the funds be
  262  held for a longer period in order to accumulate. However, a
  263  creditor contribution may not reduce any sums to be credited to
  264  the account of a debtor making a payment to the credit
  265  counseling agency for further payment to the creditor. Further,
  266  any person engaged in such services must shall maintain a
  267  separate trust account for the receipt of any funds from debtors
  268  and the disbursement of such funds on behalf of such debtors.
  269         Section 7. The Division of Statutory Revision is requested
  270  to rename part IV of chapter 817, Florida Statutes, as “Credit
  271  Counseling and Debt Settlement Services.”
  272         Section 8. This act applies to debt settlement plans
  273  executed on or after July 1, 2012.
  274         Section 9. This act shall take effect July 1, 2012.