Florida Senate - 2018                        COMMITTEE AMENDMENT
       Bill No. SB 920
       
       
       
       
       
       
                                Ì478870BÎ478870                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  01/29/2018           .                                
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       The Committee on Commerce and Tourism (Bradley) recommended the
       following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Present subsections (3) through (5) and (6) of
    6  section 560.402, Florida Statutes, are renumbered as subsections
    7  (4) through (6) and (8), respectively, present subsection (7) is
    8  amended, and new subsections (3) and (7) are added to that
    9  section, to read:
   10         560.402 Definitions.—For the purposes of this part, the
   11  term:
   12         (3)“Deferred presentment installment transaction” means a
   13  deferred presentment transaction that is repayable in
   14  installments.
   15         (7)“Outstanding transaction balance” means the amount
   16  received by the drawer from the deferred presentment provider
   17  that is due and owing, exclusive of the fees allowed under this
   18  part, in a deferred presentment transaction.
   19         (9)(7) “Termination of a deferred presentment agreement”
   20  means that all checks the check that are is the basis for the
   21  agreement are is redeemed by the drawer by payment in full in
   22  cash, or are is deposited and the deferred presentment provider
   23  has evidence that such checks have check has cleared.
   24  Verification of sufficient funds in the drawer’s account by the
   25  deferred presentment provider is not sufficient evidence to deem
   26  that the deferred presentment deposit transaction is terminated.
   27         Section 2. Subsections (5), (6), (8), (12), (13), (14),
   28  (19), (20), (21), and (22) and present subsections (23) and (24)
   29  of section 560.404, Florida Statutes, are amended, and new
   30  subsection (23) and subsection (26) are added to that section,
   31  to read:
   32         560.404 Requirements for deferred presentment
   33  transactions.—
   34         (5) The face amount of a check taken for deferred
   35  presentment transactions not repayable in installments may not
   36  exceed $500, exclusive of the fees allowed under this part. For
   37  a deferred presentment installment transaction, neither the face
   38  amount of a check nor the outstanding transaction balance may
   39  exceed $1,000, exclusive of the fees allowed under this part.
   40         (6)(a) A deferred presentment provider or its affiliate may
   41  not charge fees that exceed 10 percent of the currency or
   42  payment instrument provided for a deferred presentment
   43  transaction not repayable in installments. A deferred
   44  presentment provider or its affiliate may not charge fees on any
   45  deferred presentment installment transaction which exceed 8
   46  percent of the outstanding transaction balance on a biweekly
   47  basis.
   48         (b)Notwithstanding paragraph (a) However, a verification
   49  fee may be charged as provided in s. 560.309(8). The fees in
   50  paragraph (a) The 10-percent fee may not be applied to the
   51  verification fee.
   52         (c)Fees are earned at the time of origination for a
   53  deferred presentment transaction scheduled to be paid off in 31
   54  days or less; however, fees for a deferred presentment
   55  installment transaction are earned using a simple interest
   56  calculation. A deferred presentment provider may charge only
   57  those fees specifically authorized in this section. Prepayment
   58  penalties are prohibited.
   59         (8) A deferred presentment agreement may not be for a term
   60  longer than 31 days or fewer less than 7 days, except for a
   61  deferred presentment installment transaction, which may not be
   62  for a term longer than 90 days or fewer than 60 days.
   63         (12) The deferred presentment agreement and the drawer’s
   64  initial check must bear the same date, and the number of days of
   65  the deferment period must shall be calculated from that date.
   66  For deferred presentment installment transactions, the deferred
   67  presentment provider may accept additional checks, subject to
   68  the limitations in subsection (5), each bearing the date that
   69  the check was given to the provider, and the deferred
   70  presentment agreement must include the deferment period
   71  applicable to each check. The deferred presentment provider and
   72  the drawer may not alter or delete the date on any written
   73  agreement or check held by the deferred presentment provider.
   74         (13) For each deferred presentment transaction, the
   75  deferred presentment provider must comply with the disclosure
   76  requirements of 12 C.F.R. part 226, relating to the federal
   77  Truth-in-Lending Act, and Regulation Z of the Bureau of Consumer
   78  Financial Protection Board of Governors of the Federal Reserve
   79  Board. A copy of the disclosure must be provided to the drawer
   80  at the time the deferred presentment transaction is initiated.
   81         (14) A deferred presentment provider or its affiliate may
   82  not accept or hold an undated check or a check dated on a date
   83  other than the date on which the deferred presentment provider
   84  agreed to hold the check and signed the deferred presentment
   85  transaction agreement, except when a customer provides a new
   86  payment instrument reflecting the new outstanding transaction
   87  balance and anticipated fees upon making a payment on a deferred
   88  presentment installment transaction.
   89         (19) A deferred presentment provider may not enter into a
   90  deferred presentment transaction with a drawer who has an
   91  outstanding deferred presentment transaction with that provider
   92  or with any other deferred presentment provider, or with a
   93  person whose previous deferred presentment transaction with that
   94  provider or with any other provider has been terminated for less
   95  than 24 hours. The deferred presentment provider must verify
   96  such information as follows:
   97         (a) The deferred presentment provider must shall maintain a
   98  common database and shall verify whether the provider or an
   99  affiliate has an outstanding deferred presentment transaction
  100  with a particular person or has terminated a transaction with
  101  that person within the previous 24 hours. If a provider has not
  102  established a database, the provider may rely upon the written
  103  verification of the drawer as provided in subsection (20).
  104         (b) The deferred presentment provider must shall access the
  105  office’s database established pursuant to subsection (24) (23)
  106  and shall verify whether any other deferred presentment provider
  107  has an outstanding deferred presentment transaction with a
  108  particular person or has terminated a transaction with that
  109  person within the previous 24 hours. Before the office has
  110  implemented a database to include deferred presentment
  111  installment transactions If a provider has not established a
  112  database, the deferred presentment provider must access the
  113  office’s current database pursuant to this paragraph and may
  114  rely upon the written verification of the drawer as provided in
  115  subsection (20).
  116         (20) A deferred presentment provider must shall provide the
  117  following notice in a prominent place on each deferred
  118  presentment agreement in at least 14-point type in substantially
  119  the following form and must obtain the signature of the drawer
  120  where indicated:
  121  
  122                               NOTICE                              
  123  
  124         1. STATE LAW PROHIBITS YOU FROM HAVING MORE THAN ONE
  125         DEFERRED PRESENTMENT AGREEMENT AT ANY ONE TIME. STATE
  126         LAW ALSO PROHIBITS YOU FROM ENTERING INTO A DEFERRED
  127         PRESENTMENT AGREEMENT WITHIN 24 HOURS AFTER
  128         TERMINATING ANY PREVIOUS DEFERRED PRESENTMENT
  129         AGREEMENT. FAILURE TO OBEY THIS LAW COULD CREATE
  130         SEVERE FINANCIAL HARDSHIP FOR YOU AND YOUR FAMILY.
  131  
  132         YOU MUST SIGN THE FOLLOWING STATEMENT:
  133  
  134         I DO NOT HAVE AN OUTSTANDING DEFERRED PRESENTMENT
  135         AGREEMENT WITH ANY DEFERRED PRESENTMENT PROVIDER AT
  136         THIS TIME. I HAVE NOT TERMINATED A DEFERRED
  137         PRESENTMENT AGREEMENT WITHIN THE PAST 24 HOURS.
  138         (Signature of Drawer)
  139  
  140         2. YOU CANNOT BE PROSECUTED IN CRIMINAL COURT FOR A
  141         CHECK WRITTEN UNDER THIS AGREEMENT, BUT ALL LEGALLY
  142         AVAILABLE CIVIL MEANS TO ENFORCE THE DEBT MAY BE
  143         PURSUED AGAINST YOU.
  144  
  145         3. STATE LAW PROHIBITS A DEFERRED PRESENTMENT PROVIDER
  146         (THIS BUSINESS) FROM ALLOWING YOU TO “ROLL OVER” YOUR
  147         DEFERRED PRESENTMENT TRANSACTION. THIS MEANS THAT YOU
  148         CANNOT BE ASKED OR REQUIRED TO PAY AN ADDITIONAL FEE
  149         IN ORDER TO FURTHER DELAY THE DEPOSIT OR PRESENTMENT
  150         OF YOUR CHECK FOR PAYMENT.
  151  
  152         4.FOR DEFERRED PRESENTMENT TRANSACTIONS NOT REPAYABLE
  153         IN INSTALLMENTS: IF YOU INFORM THE PROVIDER IN PERSON
  154         THAT YOU CANNOT COVER THE CHECK OR PAY IN FULL THE
  155         AMOUNT OWING AT THE END OF THE TERM OF THIS AGREEMENT,
  156         YOU WILL RECEIVE A GRACE PERIOD EXTENDING THE TERM OF
  157         THE AGREEMENT FOR AN ADDITIONAL 60 DAYS AFTER THE
  158         ORIGINAL TERMINATION DATE, WITHOUT ANY ADDITIONAL
  159         CHARGE. THE DEFERRED PRESENTMENT PROVIDER MUST SHALL
  160         REQUIRE THAT YOU, AS A CONDITION OF OBTAINING THE
  161         GRACE PERIOD, COMPLETE CONSUMER CREDIT COUNSELING
  162         PROVIDED BY AN AGENCY INCLUDED ON THE LIST THAT WILL
  163         BE PROVIDED TO YOU BY THIS PROVIDER. YOU MAY ALSO
  164         AGREE TO COMPLY WITH AND ADHERE TO A REPAYMENT PLAN
  165         APPROVED BY THAT AGENCY. IF YOU DO NOT COMPLY WITH AND
  166         ADHERE TO A REPAYMENT PLAN APPROVED BY THAT AGENCY, WE
  167         MAY DEPOSIT OR PRESENT YOUR CHECK FOR PAYMENT AND
  168         PURSUE ALL LEGALLY AVAILABLE CIVIL MEANS TO ENFORCE
  169         THE DEBT AT THE END OF THE 60-DAY GRACE PERIOD.
  170  
  171         5.FOR DEFERRED PRESENTMENT INSTALLMENT TRANSACTIONS:
  172         IF YOU INFORM THE PROVIDER IN WRITING OR IN PERSON BY
  173         NOON [TIME ZONE] OF THE BUSINESS DAY BEFORE A
  174         SCHEDULED PAYMENT THAT YOU CANNOT PAY IN FULL THE
  175         SCHEDULED AMOUNT DUE AND OWING, YOU MAY DEFER THE
  176         SCHEDULED PAYMENT, WITHOUT ANY ADDITIONAL FEES OR
  177         CHARGES, AND THE PROVIDER MAY NOT DEFAULT THE ACCOUNT
  178         AND ACCELERATE THE FULL BALANCE. YOU MAY REQUEST ONLY
  179         ONE DEFERRED PAYMENT PER LOAN. THE DEFERRED PAYMENT
  180         WILL BE ADDED AFTER THE LAST SCHEDULED PAYMENT AND IS
  181         DUE AT AN INTERVAL NO SHORTER THAN THE INTERVALS
  182         BETWEEN THE ORIGINALLY SCHEDULED PAYMENTS.
  183  
  184         (21) The deferred presentment provider may not deposit or
  185  present the drawer’s check if the drawer informs the provider in
  186  writing or in person that the drawer cannot redeem or pay in
  187  full in cash the amount due and owing the deferred presentment
  188  provider, unless the drawer fails to comply with subsection (22)
  189  or subsection (23), as applicable. No additional fees or
  190  penalties may be imposed on the drawer by virtue of any
  191  misrepresentation made by the drawer as to the sufficiency of
  192  funds in the drawer’s account. Additional fees may not be added
  193  to the amounts due and owing to the deferred presentment
  194  provider.
  195         (22) For deferred presentment transactions not repayable in
  196  installments, if, by the end of the deferment period, the drawer
  197  informs the deferred presentment provider in writing or in
  198  person that the drawer cannot redeem or pay in full in cash the
  199  amount due and owing the deferred presentment provider, the
  200  deferred presentment provider must shall provide a grace period
  201  extending the term of the agreement for an additional 60 days
  202  after the original termination date, without any additional
  203  charge.
  204         (a) The provider must shall require, that as a condition of
  205  providing a grace period, that the drawer make an appointment
  206  with a consumer credit counseling agency within 7 days after the
  207  end of the deferment period and complete the counseling by the
  208  end of the grace period. The drawer may agree to, comply with,
  209  and adhere to a repayment plan approved by the counseling
  210  agency. If the drawer agrees to comply with and adhere to a
  211  repayment plan approved by the counseling agency, the provider
  212  must also comply with and adhere to that repayment plan. The
  213  deferred presentment provider may not deposit or present the
  214  drawer’s check for payment before the end of the 60-day grace
  215  period unless the drawer fails to comply with such conditions or
  216  the drawer fails to notify the provider of such compliance.
  217  Before each deferred presentment transaction, the provider may
  218  verbally advise the drawer of the availability of the grace
  219  period consistent with the written notice in subsection (20),
  220  and may not discourage the drawer from using the grace period.
  221         (b) At the commencement of the grace period, the deferred
  222  presentment provider must shall provide the drawer:
  223         1. Verbal notice of the availability of the grace period
  224  consistent with the written notice in subsection (20).
  225         2. A list of approved consumer credit counseling agencies
  226  prepared by the office. The office list must shall include
  227  nonprofit consumer credit counseling agencies affiliated with
  228  the National Foundation for Credit Counseling which provide
  229  credit counseling services to state residents in person, by
  230  telephone, or through the Internet. The office list must include
  231  phone numbers for the agencies, the counties served by the
  232  agencies, and indicate the agencies that provide telephone
  233  counseling and those that provide Internet counseling. The
  234  office must shall update the list at least once each year.
  235         3. The following notice in at least 14-point type in
  236  substantially the following form:
  237  
  238         AS A CONDITION OF OBTAINING A GRACE PERIOD EXTENDING
  239         THE TERM OF YOUR DEFERRED PRESENTMENT AGREEMENT FOR AN
  240         ADDITIONAL 60 DAYS, UNTIL [DATE], WITHOUT ANY
  241         ADDITIONAL FEES, YOU MUST COMPLETE CONSUMER CREDIT
  242         COUNSELING PROVIDED BY AN AGENCY INCLUDED ON THE LIST
  243         THAT WILL BE PROVIDED TO YOU BY THIS PROVIDER. YOU MAY
  244         ALSO AGREE TO COMPLY WITH AND ADHERE TO A REPAYMENT
  245         PLAN APPROVED BY THE AGENCY. THE COUNSELING MAY BE IN
  246         PERSON, BY TELEPHONE, OR THROUGH THE INTERNET. YOU
  247         MUST NOTIFY US WITHIN 7 DAYS, BY [DATE], THAT YOU HAVE
  248         MADE AN APPOINTMENT WITH A CONSUMER CREDIT COUNSELING
  249         AGENCY. YOU MUST ALSO NOTIFY US WITHIN 60 DAYS, BY
  250         [DATE], THAT YOU HAVE COMPLETED THE CONSUMER CREDIT
  251         COUNSELING. WE MAY VERIFY THIS INFORMATION WITH THE
  252         AGENCY. IF YOU FAIL TO PROVIDE THE 7-DAY OR 60-DAY
  253         NOTICE, OR IF YOU HAVE NOT MADE THE APPOINTMENT OR
  254         COMPLETED THE COUNSELING WITHIN THE TIME REQUIRED, WE
  255         MAY DEPOSIT OR PRESENT YOUR CHECK FOR PAYMENT AND
  256         PURSUE ALL LEGALLY AVAILABLE CIVIL MEANS TO ENFORCE
  257         THE DEBT.
  258  
  259         (c) If a drawer completes an approved payment plan, the
  260  deferred presentment provider must shall pay one-half of the
  261  drawer’s fee for the deferred presentment agreement to the
  262  consumer credit counseling agency.
  263         (23)For deferred presentment installment transactions, if
  264  a drawer informs the deferred presentment provider in writing or
  265  in person by noon of the business day before a scheduled payment
  266  that the drawer cannot pay in full the scheduled payment amount
  267  due and owing the provider, the deferred presentment provider
  268  must provide the drawer the opportunity to defer the scheduled
  269  payment, at no additional fee or charge, until after the last
  270  scheduled payment. The phrase “by noon” means 12:00 p.m. of the
  271  same time zone in which the deferred presentment agreement was
  272  entered into. Only one deferred payment is permitted for each
  273  deferred presentment installment transaction. The deferred
  274  payment must be due at an interval after the last scheduled
  275  payment which is no shorter than the intervals between the
  276  originally scheduled payments.
  277         (24)(a)(23) The office must shall implement a common
  278  database with real-time access through an Internet connection
  279  for deferred presentment providers, as provided in this
  280  subsection. The database must be accessible to the office and
  281  the deferred presentment providers in order to verify whether
  282  any deferred presentment transactions are outstanding for a
  283  particular person. Deferred presentment providers must shall
  284  submit such data before entering into each deferred presentment
  285  transaction in such format as required by rule, including the
  286  drawer’s name, social security number or employment
  287  authorization alien number, address, driver license number,
  288  amount of the transaction, date of transaction, the date that
  289  the transaction is closed, and such additional information as is
  290  required by rule.
  291         (b)For data that must be submitted by a deferred
  292  presentment provider, the commission may by rule impose a fee of
  293  up to $1 per transaction for deferred presentment transactions
  294  not repayable in installments, and the commission may impose a
  295  fee of up to $1 for each full or partial 30-day period that a
  296  balance is scheduled to be outstanding for a deferred
  297  presentment installment transaction for data that must be
  298  submitted by a deferred presentment provider.
  299         (c) A deferred presentment provider may rely on the
  300  information contained in the database as accurate and is not
  301  subject to any administrative penalty or civil liability due to
  302  relying on inaccurate information contained in the database.
  303         (d) A deferred presentment provider must notify the office,
  304  in a manner as prescribed by rule, within 15 business days after
  305  ceasing operations or no longer holding a license under part II
  306  or part III of this chapter. Such notification must include a
  307  reconciliation of all open transactions. If the provider fails
  308  to provide notice, the office must shall take action to
  309  administratively release all open and pending transactions in
  310  the database after the office becomes aware of the closure.
  311         (e) This section does not affect the rights of the provider
  312  to enforce the contractual provisions of the deferred
  313  presentment agreements through any civil action allowed by law.
  314         (f) The commission may adopt rules to administer this
  315  subsection and to ensure that the database is used by deferred
  316  presentment providers in accordance with this section.
  317         (25)(24) A deferred presentment provider may not accept
  318  more than one check or authorization to initiate more than one
  319  automated clearinghouse transaction to collect on a deferred
  320  presentment transaction for a single deferred presentment
  321  transaction, except for deferred presentment installment
  322  transactions in which such checks or authorizations represent
  323  multiple scheduled payments.
  324         (26)A deferred presentment installment transaction must be
  325  fully amortizing and repayable in consecutive installments as
  326  nearly equal as mathematically practicable according to a
  327  payment schedule agreed upon by the parties with no fewer than
  328  13 days and not more than 1 calendar month between payments,
  329  except that the first installment may be longer than the
  330  remaining installments by not more than 15 days, and the first
  331  installment payment may be larger than the remaining installment
  332  payments by the amount of charges applicable to the extra days.
  333  In calculating charges under this subsection, when the first
  334  installment is longer than the remaining installments, the
  335  amount of the charges applicable to the extra days may not
  336  exceed those that would accrue under a simple interest
  337  calculation based on the rate allowed under subsection (6).
  338         Section 3. Subsections (1), (3), and (4) of section
  339  560.405, Florida Statutes, are amended to read:
  340         560.405 Deposit; redemption.—
  341         (1) The deferred presentment provider or its affiliate may
  342  not present the drawer’s check before the end of the deferment
  343  period, except for a missed scheduled payment for a deferred
  344  presentment installment transaction that has not been otherwise
  345  deferred pursuant to s. 560.404(23), as reflected and described
  346  in the deferred presentment transaction agreement.
  347         (3) Notwithstanding subsection (1), in lieu of presentment,
  348  a deferred presentment provider may allow the check to be
  349  redeemed at any time upon payment of the outstanding transaction
  350  balance and earned fees face amount of the drawer’s check.
  351  However, payment may not be made in the form of a personal
  352  check. Upon redemption, the deferred presentment provider must
  353  shall return the drawer’s check and provide a signed, dated
  354  receipt showing that the drawer’s check has been redeemed.
  355         (4) A drawer may not be required to redeem his or her check
  356  in full before the agreed-upon date; however, the drawer may
  357  choose to redeem the check before the agreed-upon presentment
  358  date.
  359         Section 4. For the purpose of incorporating the amendments
  360  made by this act to sections 560.404 and 560.405, Florida
  361  Statutes, in references thereto, subsection (5) of section
  362  560.111, Florida Statutes, is reenacted to read:
  363         560.111 Prohibited acts.—
  364         (5) Any person who willfully violates any provision of s.
  365  560.403, s. 560.404, or s. 560.405 commits a felony of the third
  366  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  367  775.084.
  368         Section 5. This act shall take effect July 1, 2019.
  369  
  370  ================= T I T L E  A M E N D M E N T ================
  371  And the title is amended as follows:
  372         Delete everything before the enacting clause
  373  and insert:
  374                        A bill to be entitled                      
  375         An act relating to deferred presentment transactions;
  376         amending s. 560.402, F.S.; providing and revising
  377         definitions; amending s. 560.404, F.S.; specifying the
  378         maximum face amount of checks that may be taken for
  379         deferred presentment installment transactions,
  380         exclusive of fees; specifying the maximum rate and
  381         frequency of fees that deferred presentment providers
  382         or their affiliates may charge on deferred presentment
  383         installment transactions; specifying when fees are
  384         earned for certain deferred presentment transactions;
  385         specifying the calculation of fees earned for deferred
  386         presentment installment transactions; prohibiting
  387         prepayment penalties; specifying the minimum and
  388         maximum terms of a deferred presentment installment
  389         transaction; specifying dates that checks must bear;
  390         authorizing providers of deferred presentment
  391         installment transactions to accept additional checks
  392         subject to certain limitations; requiring the deferred
  393         presentment agreement to include the deferment period
  394         applicable to each check; correcting a reference to
  395         federal law; providing an exception to a prohibition
  396         against the acceptance or holding of undated checks or
  397         checks with certain dates by a deferred presentment
  398         provider or its affiliate; conforming a cross
  399         reference; providing a verification process that may
  400         be relied upon under certain conditions; revising a
  401         notice in deferred presentment agreements; authorizing
  402         a drawer to inform a provider in writing that the
  403         drawer cannot redeem or pay in full the amount due and
  404         owing to the provider; providing an exception to a
  405         prohibition, under certain circumstances, against a
  406         deferred presentment provider’s deposit or presentment
  407         of a drawer’s check; requiring a provider of a
  408         deferred presentment installment transaction to allow
  409         a drawer to defer one scheduled payment under certain
  410         circumstances; providing requirements for the deferred
  411         payment; specifying the frequency a certain fee may be
  412         imposed by Financial Services Commission rule for data
  413         on certain transactions submitted by deferred
  414         presentment providers to a certain database; providing
  415         an exception to a limitation on a deferred presentment
  416         provider’s acceptance of a certain check or
  417         authorization; specifying requirements for
  418         amortization, installment repayments, and the
  419         calculation of charges for deferred presentment
  420         installment transactions; conforming provisions to
  421         changes made by the act; amending s. 560.405, F.S.;
  422         providing an exception to a prohibition against a
  423         deferred presentment provider’s or its affiliate’s
  424         presentment of a drawer’s check before the end of the
  425         deferment period; revising a condition under which a
  426         deferred presentment provider may allow the check to
  427         be redeemed in lieu of presentment; revising a
  428         prohibition against requiring a drawer to redeem his
  429         or her check before the agreed-upon date; reenacting
  430         s. 560.111(5), F.S., relating to prohibited acts, to
  431         incorporate the amendments made to ss. 560.404 and
  432         560.405, F.S., in references thereto; providing an
  433         effective date.