Senate Bill 1834

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    Florida Senate - 2000                                  SB 1834

    By Senators Latvala and Kurth





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  1                      A bill to be entitled

  2         An act relating to consumer financial

  3         transactions; creating the "Fair Accountability

  4         in Interest Rates Act of 2000"; providing

  5         legislative intent; providing definitions;

  6         requiring licensure by the Department of

  7         Banking and Finance to act as a title loan

  8         lender; providing for application for

  9         licensure; requiring a bond, a nonrefundable

10         application fee, a nonrefundable investigation

11         fee, and fingerprinting; providing for waiver

12         of fingerprinting; providing for inactive

13         licenses; providing for renewal and

14         reactivation of licenses; providing for a

15         renewal fee and a reactivation fee; providing

16         for disposition of certain moneys; providing

17         for acquisition of an interest in a licensee

18         under certain circumstances; providing for

19         denial, suspension, or revocation of a license;

20         specifying acts that constitute violations for

21         which certain disciplinary actions may be

22         taken; providing a fine; providing remedies for

23         title loans made or serviced without licensure;

24         providing for a title loan agreement; providing

25         requirements; providing for reclaiming a

26         repossessed motor vehicle under certain

27         circumstances; providing entitlement to certain

28         excess proceeds of a sale or disposal of a

29         motor vehicle; providing for recordkeeping and

30         reporting and safekeeping of property;

31         providing for title loan interest rates;

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  1         providing requirements and limitations;

  2         providing for extensions; providing for return

  3         of principal and interest to the borrower under

  4         certain circumstances; providing a holding

  5         period when there is a failure to reclaim

  6         pledged property; providing for the disposal of

  7         pledged property; providing for disposition of

  8         excess proceeds; prohibiting certain acts;

  9         providing for the right to reclaim; providing

10         for lost title loan agreements; providing for a

11         title loan lender's lien; providing for

12         criminal penalties; providing for subpoenas,

13         enforcement of actions, and rules; providing

14         for investigations and complaints; authorizing

15         the department to adopt rules; requiring the

16         department to establish a consumer awareness

17         program; amending ss. 538.03, 538.16, F.S.;

18         repealing provisions relating to title loan

19         transactions; permitting more-restrictive local

20         ordinances; providing an appropriation;

21         repealing ss. 538.03(1)(i), 538.06(5),

22         538.15(4) and (5), F.S., relating to title loan

23         transactions by secondhand dealers; amending s.

24         560.309, F.S.; prescribing deposit requirements

25         for payment instruments; providing for

26         severability; providing effective dates.

27

28  Be It Enacted by the Legislature of the State of Florida:

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  1         Section 1.  Short title.--Sections 1 through 16 of this

  2  act may be cited as the "Fair Accountability in Interest Rates

  3  Act of 2000."

  4         Section 2.  Legislative intent.--It is the intent of

  5  the Legislature that certain consumer financial transactions

  6  be regulated to protect consumers from unreasonably high

  7  interest rates and unfair lending practices. Such transactions

  8  include title loans, which shall be regulated by the

  9  provisions of this act, and deferred presentment of checks and

10  other payment instruments, which shall be subject to the

11  provisions of section 560.309, Florida Statutes, as amended by

12  this act. This act supersedes any other provisions of state

13  law affecting title loans or deferred presentment to the

14  extent of any conflict.

15         Section 3.  Definitions.--As used in this act, the

16  term:

17         (1)  "Commercially reasonable" has the same meaning as

18  used in part V of chapter 679, Florida Statutes. In addition,

19  nonpublic sales or disposal of personal property between a

20  title loan lender and any business affiliates of a title loan

21  lender or a member of a title loan lender's family are

22  presumed not to be made in a commercially reasonable manner.

23         (2)  "Department" means the Department of Banking and

24  Finance.

25         (3)  "Executive officer" means the president, chief

26  executive officer, chief financial officer, chief operating

27  officer, executive vice president, senior vice president,

28  secretary, and treasurer.

29         (4)  "Identification" means a government-issued

30  photographic identification.

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  1         (5)  "Interest" means the cost of obtaining a title

  2  loan and includes any profit or advantage of any kind

  3  whatsoever that a title loan lender may charge, contract for,

  4  collect, receive, or in any way obtain as a result of a title

  5  loan.

  6         (6)  "License" means a permit issued under this act to

  7  make or service title loans in accordance with this act at a

  8  single title loan office.

  9         (7)  "Licensee" means a person who is licensed as a

10  title loan lender.

11         (8)  "Loan property" means any motor vehicle

12  certificate of title that is deposited with a title loan

13  lender as a security for a title loan in the course of the

14  title loan lender's business.

15         (9)  "Motor vehicle" means an automobile, motorcycle,

16  mobile home, truck, trailer, semitrailer, truck tractor and

17  semitrailer combination, or any other vehicle operated on the

18  public highways and streets of this state, used to transport

19  persons or property, and propelled by power other than

20  muscular power, but excluding a vehicle that runs only upon a

21  track and a mobile home that is the primary residence of the

22  owner.

23         (10)  "Title loan" or "loan" means a loan of money

24  secured only by bailment of a certificate of title to a motor

25  vehicle, except such loan made by a person licensed under

26  chapter 516, chapter 520, or chapter 655, Florida Statutes.

27         (11)  "Title loan agreement" or "agreement" means a

28  written agreement in which a title loan lender agrees to make

29  a title loan to a borrower.

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  1         (12)  "Title loan lender" or "lender" means any person

  2  who engages in the business of making or servicing title

  3  loans.

  4         (13)  "Title loan office" means the location at which,

  5  or premises from which, a title loan lender regularly conducts

  6  business under this chapter or any other location that is held

  7  out to the public as a location at which a lender makes or

  8  services title loans.

  9         (14)  "Titled personal property" means a motor vehicle

10  that has as evidence of ownership a state-issued certificate

11  of title except for a mobile home that is the primary

12  residence of the borrower.

13         (15)  "Ultimate equitable owner" means a person who,

14  directly or indirectly, owns or controls an ownership interest

15  in a corporation, a foreign corporation, an alien business

16  organization, or any other form of business organization,

17  regardless of whether such person owns or controls such

18  ownership interest through one or more persons or one or more

19  proxies, powers of attorney, nominees, corporations,

20  associations, partnerships, trusts, joint stock companies, or

21  other entities or devices, or any combination thereof.

22         Section 4.  License required; license fees.--

23         (1)  A person may not act as a title loan lender or own

24  or operate a title loan office unless such person has an

25  active title loan lender license issued by the department

26  under this act.  A title loan lender may not own or operate

27  more than one title loan office unless the lender obtains a

28  separate title loan lender license for each title loan office.

29         (2)  A person applying for licensure as a title loan

30  lender shall file with the department an application; the bond

31  required by section 5(3); a nonrefundable application fee of

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  1  $1,200; a nonrefundable investigation fee of $200; and a

  2  complete set of fingerprints taken by an authorized law

  3  enforcement officer.  The department shall submit such

  4  fingerprints to the Department of Law Enforcement or the

  5  Federal Bureau of Investigation for state and federal

  6  processing. The department may waive, by rule, the requirement

  7  that applicants must file a set of fingerprints or the

  8  requirement that such fingerprints must be processed by the

  9  Department of Law Enforcement or the Federal Bureau of

10  Investigation.

11         (3)  If the department determines that an application

12  should be approved, the department shall issue a license for a

13  period not to exceed 2 years.

14         (4)  A license shall be renewed biennially by filing a

15  renewal form and a nonrefundable renewal fee of $1,200.  A

16  license that is not renewed by the end of the biennial period

17  shall automatically revert to inactive status. An inactive

18  license may be reactivated within 6 months after becoming

19  inactive by filing a reactivation form; payment of the

20  nonrefundable $1,200 renewal fee; and payment of a

21  nonrefundable reactivation fee of $600.  A license that is not

22  reactivated within 6 months after becoming inactive may not be

23  reactivated and shall automatically expire. The department

24  shall establish by rule the procedures for renewal and

25  reactivation of a license and shall adopt a renewal form and a

26  reactivation form.

27         (5)  Each license must be conspicuously displayed at

28  the title loan office. When a licensee wishes to move a title

29  loan office to another location, the licensee shall provide 30

30  days' written notice to the department prior to the

31  relocation.

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  1         (6)  A license issued pursuant to this act is not

  2  transferable or assignable.

  3         (7)  Each licensee shall designate and maintain a

  4  registered agent in this state for service of process.

  5         (8)  Whenever a person or a group of persons, directly

  6  or indirectly or acting by or through one or more persons,

  7  proposes to purchase or acquire a 25 percent or more interest

  8  in a licensee, such person or group shall submit an initial

  9  application for licensure under this act prior to such

10  purchase or acquisition. The department shall adopt rules

11  providing for waiver of the application required by this

12  subsection when such purchase or acquisition of a licensee is

13  made by another licensee licensed under this act or when the

14  application is otherwise unnecessary in the public interest.

15         (9)  The department may adopt rules to allow for

16  electronic filing of applications, fees, and forms required by

17  this act.

18         (10)  All moneys collected by the department under this

19  act shall be deposited into the Regulatory Trust Fund of the

20  Department of Banking and Finance.

21         Section 5.  Application for license.--

22         (1)  A verified application for licensure under this

23  act, in the form prescribed by department rule, shall:

24         (a)  Contain the name and the residence and business

25  address of the applicant.  If the applicant is other than a

26  natural person, the application shall contain the name and the

27  residence and business address of each ultimate equitable

28  owner of 25 percent or more of such entity and each director,

29  general partner, and executive officer of such entity.

30         (b)  State whether any individual identified in

31  paragraph (a) has, within the last 10 years, pleaded nolo

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  1  contendere to, or has been convicted or found guilty of, a

  2  felony, regardless of whether adjudication was withheld.

  3         (c)  Identify the county and municipality with the

  4  street and number or location where the business is to be

  5  conducted.

  6         (d)  Contain additional information as the department

  7  determines by rule to be necessary to ensure compliance with

  8  this act.

  9         (2)  Notwithstanding subsection (1), the application

10  need not state the full name and address of each officer,

11  director, and shareholder if the applicant is owned directly

12  or beneficially by a person who as an issuer has a class of

13  securities registered pursuant to section 12 of the Securities

14  Exchange Act of 1934 or, pursuant to section 13 or section

15  15(d) of such act, is an issuer of securities which is

16  required to file reports with the Securities and Exchange

17  Commission, if the person files with the department any

18  information, documents, and reports required by such act to be

19  filed with the Securities and Exchange Commission.

20         (3)  An applicant for licensure shall file with the

21  department a bond, in the amount of $100,000 for each license,

22  with a surety company qualified to do business in this state.

23  However, in no event shall the aggregate amount of the bond

24  required for a single title loan lender exceed $1 million. In

25  lieu of the bond, the applicant may establish an irrevocable

26  letter of credit in a financial institution, as defined in

27  section 655.005, Florida Statutes, in the amount of the bond.

28  The original bond or letter of credit shall be filed with the

29  department, and the department shall be made the beneficiary

30  of that document. The bond or letter of credit shall be in

31  favor of the department for the use and benefit of any

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  1  consumer who is injured pursuant to a title loan transaction

  2  by the fraud, misrepresentation, breach of contract, financial

  3  failure, or violation of any provision of this act by the

  4  title loan lender. Such liability may be enforced either by

  5  proceeding in an administrative action or by filing a judicial

  6  suit at law in a court of competent jurisdiction. However, in

  7  such court suit, the bond or letter of credit posted with the

  8  department shall not be amenable or subject to any judgment or

  9  other legal process issuing out of or from such court in

10  connection with such lawsuit, but such bond or letter of

11  credit shall be amenable to and enforceable only by and

12  through administrative proceedings before the department. It

13  is the intent of the Legislature that such bond or letter of

14  credit shall be applicable and liable only for the payment of

15  claims duly adjudicated by order of the department. The bond

16  or letter of credit shall be payable on a pro rata basis as

17  determined by the department, but the aggregate amount may not

18  exceed the amount of the bond or letter of credit.

19         (4)  The department shall approve an application and

20  issue a license if the department determines that the

21  applicant satisfies the requirements of this act.

22         Section 6.  Denial, suspension, or revocation of

23  license.--

24         (1)  The following acts are violations of this act and

25  constitute grounds for the disciplinary actions specified in

26  subsection (2):

27         (a)  Failure to comply with any provision of this act,

28  any rule or order adopted pursuant to this act, or any written

29  agreement entered into with the department.

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  1         (b)  Fraud, misrepresentation, deceit, or gross

  2  negligence in any title loan transaction, regardless of

  3  reliance by or damage to the borrower.

  4         (c)  Fraudulent misrepresentation, circumvention, or

  5  concealment of any matter required to be stated or furnished

  6  to a borrower pursuant to this act, regardless of reliance by

  7  or damage to the borrower.

  8         (d)  Imposition of illegal or excessive charges in any

  9  title loan transaction.

10         (e)  False, deceptive, or misleading advertising by a

11  title loan lender.

12         (f)  Failure to maintain, preserve, and keep available

13  for examination all books, accounts, or other documents

14  required by this act, by any rule or order adopted pursuant to

15  this act, or by any agreement entered into with the

16  department.

17         (g)  Aiding, abetting, or conspiring by a title loan

18  lender with a person to circumvent or violate any of the

19  requirements of this act.

20         (h)  Refusal to provide information upon request of the

21  department, to permit inspection of books and records in an

22  investigation or examination by the department, or to comply

23  with a subpoena issued by the department.

24         (i)  Having been convicted of a crime involving fraud,

25  dishonest dealing, or any act of moral turpitude or acting as

26  an ultimate equitable owner of 10 percent or more of a

27  licensee who has been convicted of a crime involving fraud,

28  dishonest dealing, or any act of moral turpitude.

29         (j)  Making or having made material misstatement of

30  fact in an initial or renewal application for a license.

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  1         (k)  Having been the subject of any decision, finding,

  2  injunction, suspension, prohibition, revocation, denial,

  3  judgment, or administrative order by any court of competent

  4  jurisdiction or administrative law judge, or by any state or

  5  federal agency, involving a violation of any federal or state

  6  law relating to title loans or any rule or regulation adopted

  7  under such law, or having been the subject of any injunction

  8  or adverse administrative order by a state or federal agency

  9  regulating banking, insurance, finance or small loan

10  companies, real estate, mortgage brokers, or other related or

11  similar industries for acts involving fraud, dishonest

12  dealing, or any act of moral turpitude.

13         (l)  Pleading nolo contendere to, or being convicted or

14  found guilty of, a crime involving fraud, dishonest dealing,

15  or any act of moral turpitude, regardless of whether

16  adjudication was withheld.

17         (m)  Failing to continuously maintain the bond required

18  by section 5(3).

19         (n)  Failing to timely pay any fee, charge, or fine

20  imposed or assessed pursuant to this act or rules adopted

21  under this act.

22         (o)  Having had a license or registration, or the

23  equivalent, to practice any profession or occupation denied,

24  suspended, revoked, or otherwise acted against by a licensing

25  authority in any jurisdiction for fraud, dishonest dealing, or

26  any act of moral turpitude.

27         (p)  Having demonstrated unworthiness, as defined by

28  department rule, to transact the business of a title loan

29  lender.

30         (2)  Upon a finding by the department that any person

31  has committed any of the acts set forth in subsection (1), the

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  1  department may enter an order taking one or more of the

  2  following actions:

  3         (a)  Denying an application for licensure under this

  4  act.

  5         (b)  Revoking or suspending a license previously

  6  granted pursuant to this act.

  7         (c)  Placing a licensee or an applicant for a license

  8  on probation for a period of time and subject to such

  9  conditions as the department specifies.

10         (d)  Issuing a reprimand.

11         (e)  Imposing an administrative fine not to exceed

12  $5,000 for each separate act or violation.

13         (3)  If a person seeking licensure is anything other

14  than a natural person, the eligibility requirements of this

15  section apply to each direct or ultimate equitable owner of 10

16  percent or more of the outstanding equity interest of such

17  entity and to each director, general partner, and executive

18  officer.

19         (4)  It is sufficient cause for the department to take

20  any of the actions specified in subsection (2), as to any

21  entity other than a natural person, if the department finds

22  grounds for such action as to any member of such entity, as to

23  any executive officer or director of the entity, or as to any

24  person with power to direct the management or policies of the

25  entity.

26         (5)  Each licensee is subject to the provisions of

27  subsection (2) for the acts of employees and agents of the

28  licensee if the licensee knew or should have known about such

29  acts.

30         (6)  Licensure under this act may be denied or any

31  license issued under this act may be suspended or restricted

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  1  if an applicant or licensee is charged, in a pending

  2  enforcement action or pending criminal prosecution, with any

  3  conduct that would authorize denial or revocation under this

  4  section.

  5         Section 7.  Remedies for title loans made without

  6  licensure.--Any title loan made without benefit of a license

  7  is void, in which case the person making the title loan

  8  forfeits the right to collect any moneys, including principal

  9  and interest charged on the title loan, from the borrower in

10  connection with such agreement.  The person making the title

11  loan shall return to the borrower the loan property, the

12  titled personal property pledged or the fair market value of

13  such titled personal property, and all principal and interest

14  paid by the borrower. The borrower is entitled to receive

15  reasonable attorney's fees and costs in any action brought by

16  the borrower to recover from the person making the title loan

17  the loan property, the titled personal property, or the

18  principal and interest paid by the borrower.

19         Section 8.  Title loan agreement.--

20         (1)  At the time a title loan lender makes a title

21  loan, the lender and the borrower shall execute a title loan

22  agreement, which shall be legibly typed or written in

23  indelible ink and completed as to all essential provisions

24  prior to execution by the borrower and lender. The title loan

25  agreement shall include the following information:

26         (a)  The make, model, and year of the titled personal

27  property to which the loan property relates.

28         (b)  The vehicle identification number, or other

29  comparable identification number, along with the license plate

30  number, if applicable, of the titled personal property to

31  which the loan property relates.

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  1         (c)  The name, residential address, date of birth,

  2  physical description, and social security number of the

  3  borrower.

  4         (d)  The date the title loan agreement is executed by

  5  the title loan lender and the borrower.

  6         (e)  The identification number and the type of

  7  identification, including the issuing agency, accepted from

  8  the borrower.

  9         (f)  The amount of money advanced, designated as the

10  "amount financed."

11         (g)  The maturity date of the title loan agreement,

12  which shall be 30 days after the date the title loan agreement

13  is executed by the title loan lender and the borrower.

14         (h)  The total title loan interest payable on the

15  maturity date, designated as the "finance charge."

16         (i)  The amount financed plus finance charge, which

17  must be paid to reclaim the loan property on the maturity

18  date, designated as the "total amount of all payments."

19         (j)  The interest rate, computed in accordance with the

20  regulations adopted by the Federal Reserve Board pursuant to

21  the Federal Truth-in-Lending Act, designated as the "annual

22  percentage rate."

23         (2)  The following information shall also be printed on

24  all title loan agreements:

25         (a)  The name and physical address of the title loan

26  office.

27         (b)  The name and address of the department as well as

28  a telephone number to which consumers may address complaints.

29         (c)  The following statement in not less than 12-point

30  type that:

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  1         1.  If the borrower fails to repay the full amount of

  2  the title loan on or before the end of the maturity date or

  3  any extension of the maturity date and fails to make a payment

  4  on the title loan within 30 days after the end of the maturity

  5  date or any extension of the maturity date, whichever is

  6  later, the title loan lender may take possession of the

  7  borrower's motor vehicle and sell the vehicle in the manner

  8  provided by law. If the vehicle is sold, the borrower is

  9  entitled to any proceeds of the sale in excess of the amount

10  owed on the title loan and the reasonable expenses of

11  repossession and sale.

12         2.  If the title loan agreement is lost, destroyed, or

13  stolen, the borrower must immediately so advise the issuing

14  title loan lender in writing.

15         (d)  The statement that "the borrower represents and

16  warrants that the titled personal property to which the loan

17  property relates is not stolen and has no liens or

18  encumbrances against it, the borrower has the right to enter

19  into this transaction, and the borrower will not apply for a

20  duplicate certificate of title while the title loan agreement

21  is in effect."

22         (e)  A blank line for the signature of the borrower and

23  the title loan lender or the lender's agent.

24         (3)  All owners of the titled personal property must

25  sign the title loan agreement.

26         (4)  At the time of the transaction, the title loan

27  lender shall deliver to the borrower an exact copy of the

28  executed title loan agreement.

29         (5)  Upon execution of a title loan agreement, the

30  title loan lender may take possession of the loan property and

31  retain possession of such property until such property is

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  1  redeemed. The borrower shall have the exclusive right to

  2  redeem the loan property by repaying all amounts legally due

  3  under the agreement. When the loan property is redeemed, the

  4  lender shall immediately return the loan property and commence

  5  action to release any security interest in the titled personal

  6  property. During the term of the agreement or any extension of

  7  the agreement, a title loan lender may retain physical

  8  possession of the loan property only. A title loan lender

  9  shall not require a borrower to provide any additional

10  security or guaranty as a condition to entering into a title

11  loan transaction.

12         (6)  A title loan lender and any agent of a title loan

13  lender are subject to the consumer debt collection provisions

14  of section 559.72, Florida Statutes.

15         Section 9.  Recordkeeping; reporting; safekeeping of

16  property.--

17         (1)  Every title loan lender must maintain, at the

18  lender's title loan office, such books, accounts, and records

19  of the business conducted under the license issued for such

20  place of business as will enable the department to determine

21  the licensee's compliance with this act.

22         (2)  The department may authorize the maintenance of

23  books, accounts, and records at a location other than the

24  lender's title loan office. The department may require books,

25  accounts, and records to be produced and available at a

26  reasonable and convenient location in this state within a

27  reasonable period of time after such a request.

28         (3)  The title loan lender must maintain the original

29  copy of each completed title loan agreement on the title loan

30  office premises, and may not obliterate, discard, or destroy

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  1  any such original copy for a period of at least 2 years after

  2  making the final entry on any loan recorded in such office.

  3         (4)  Loan property that is delivered to a title loan

  4  lender must be securely stored and maintained at the title

  5  loan office unless the loan property has been forwarded to the

  6  appropriate state agency for the purpose of having a lien

  7  recorded or deleted.

  8         (5)  The department may prescribe by rule the books,

  9  accounts, and records, and the minimum information to be shown

10  in the books, accounts, and records, of licensees so that such

11  records will enable the department to determine compliance

12  with this act.

13         Section 10.  Title loan charges.--

14         (1)  A title loan lender may charge a maximum interest

15  rate as provided in section 516.031, Florida Statutes.

16         (2)  A title loan agreement may be extended for one or

17  more 30-day periods by mutual consent of the title loan lender

18  and the borrower.  Each extension of a title loan agreement

19  must be executed in a separate extension agreement each of

20  which must comply with the requirements for executing a title

21  loan agreement as provided in this act.  The interest rate

22  charged in any title loan extension agreement may not exceed

23  the interest rate charged in the related title loan agreement.

24  A title loan lender may not capitalize in any title loan

25  extension agreement any unpaid interest due on the related

26  title loan agreement or any subsequent extensions to that

27  title loan agreement.

28         (3)  Any interest contracted for or received, directly

29  or indirectly, by a title loan lender, or an agent of the

30  title loan lender, in excess of the amounts authorized under

31

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  1  this chapter are prohibited and may not be collected by the

  2  title loan lender or an agent of the title loan lender.

  3         (a)  If such excess interest is changed as a result of

  4  a bona fide error by the title loan lender, or an agent of the

  5  title loan lender, the title loan agreement is voidable, and

  6  the lender must refund the excess interest to the borrower

  7  within 20 days after discovery by the lender or borrower of

  8  the bona fide error, whichever occurs first.

  9         (b)  If such excess interest results from an act by the

10  title loan lender, or an agent of the title loan lender, for

11  the purpose of circumventing the maximum title loan interest

12  allowed by this act, the title loan agreement is void, and the

13  lender must refund to the borrower any interest paid on the

14  title loan and return to the borrower the loan property. The

15  title loan lender also forfeits the lender's right to collect

16  any principal owed by the borrower on the title loan.

17         (c)  The department may order a title loan lender, or

18  an agent of the title loan lender, to comply with the

19  provisions of paragraphs (a) and (b).

20         (4)  Any interest contracted for or received, directly

21  or indirectly, by a title loan lender, or an agent of the

22  title loan lender, in excess of the amount allowed by this act

23  constitutes a violation of chapter 687, Florida Statutes,

24  governing interest and usury, and the penalties of that

25  chapter apply.

26         Section 11.  Repossession, disposal of pledged

27  property; excess proceeds.--

28         (1)  If a borrower fails to repay all amounts legally

29  due under the title loan agreement on or before the end of the

30  title loan's maturity date or any extension of such date and

31  fails to make a payment on the loan within 30 days after the

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  1  end of the loan's maturity date or any extension of such date,

  2  whichever occurs later, the title loan lender may take

  3  possession of the titled personal property. A lender may take

  4  possession of the titled personal property only through an

  5  agent who is licensed by the state to repossess motor

  6  vehicles.

  7         (2)  Prior to engaging a repossession agent, the lender

  8  must afford the debtor an opportunity to make the titled

  9  personal property available to the lender at a place, date,

10  and time reasonably convenient to the lender and the borrower.

11  Prior to taking possession of titled personal property, the

12  lender must afford the borrower a reasonable opportunity to

13  remove from the titled personal property any personal

14  belongings without charge or additional cost to the borrower.

15  After the lender takes possession of the titled personal

16  property, the lender, at the lender's sole expense and risk,

17  may authorize a third party to retain physical possession of

18  the titled personal property.

19         (3)  Upon taking possession of titled personal

20  property, the lender may dispose of the titled personal

21  property by sale but may do so only through a motor vehicle

22  dealer licensed under section 320.27, Florida Statutes. At

23  least 10 days prior to sale, the lender must notify the

24  borrower of the date, time, and place of the sale and provide

25  the borrower with a written accounting of the principal amount

26  due on the title loan, interest accrued through the date the

27  lender takes possession of the titled personal property, and

28  any reasonable expenses incurred to date by the lender in

29  taking possession of, preparing for sale, and selling the

30  titled personal property. At any time prior to such sale, the

31  lender must permit the borrower to redeem the titled personal

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  1  property by tendering a money order or certified check for the

  2  principal amount of the title loan, interest accrued through

  3  the date the lender takes possession, and any reasonable

  4  expenses incurred to date by the lender in taking possession

  5  of, preparing for sale, and selling the titled personal

  6  property. Nothing in this act nor in any title loan agreement

  7  precludes a borrower from purchasing the titled personal

  8  property at any sale.

  9         (4)  Any such sale or disposal vests in the purchaser

10  the right, title, and interest of the owner and the title loan

11  lender.

12         (5)  Within 30 days after the sale of the titled

13  personal property, the borrower is entitled to receive all

14  proceeds from the sale of the motor vehicle in excess of the

15  principal amount due on the loan, interest on the loan up to

16  the date the lender took possession, and the reasonable

17  expenses incurred by the lender in taking possession of,

18  preparing for sale, and selling the titled personal property.

19  The borrower is entitled to reasonable attorney's fees and

20  costs incurred in any action brought to recover such proceeds

21  which results in the title loan lender being ordered to return

22  all or part of such amount.

23         (6)  The rights and remedies provided in this section

24  are cumulative. Except as otherwise provided in this section,

25  the disposal of titled personal property is subject to the

26  provisions of chapter 679, Florida Statutes.

27         (7)  In taking possession and disposing of titled

28  personal property by sale or otherwise, the title loan lender

29  shall at all times proceed in a commercially reasonable

30  manner.

31         Section 12.  Prohibited acts.--

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  1         (1)  A title loan lender, or any agent or employee of a

  2  title loan lender, may not:

  3         (a)  Falsify or fail to make an entry of any material

  4  matter in a title loan agreement or any extension of such

  5  agreement.

  6         (b)  Refuse to allow the department to inspect

  7  completed title loan agreements, extensions of such

  8  agreements, or loan property during the ordinary operating

  9  hours of the title loan lender's business or at other times

10  acceptable to both parties.

11         (c)  Enter into a title loan agreement with a person

12  under the age of 18 years.

13         (d)  Make any agreement requiring or allowing for the

14  personal liability of a borrower or the waiver of any of the

15  provisions of this act. Any such agreement or waiver is void

16  and unenforceable.

17         (e)  Knowingly enter into a title loan agreement with

18  any person who is under the influence of drugs or alcohol when

19  such condition is visible or apparent, or with any person

20  using a name other than such person's own name or the

21  registered name of the person's business.

22         (f)  Fail to exercise reasonable care, as defined by

23  department rule, in the safekeeping of loan property or of

24  titled personal property repossessed pursuant to this act.

25         (g)  Fail to return loan property or repossessed titled

26  personal property to a borrower, with any and all of the title

27  loan lender's liens on the property properly released, upon

28  payment of the full amount due the title loan lender, unless

29  the property has been seized or impounded by an authorized law

30  enforcement agency, taken into custody by a court, or

31  otherwise disposed of by court order.

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  1         (h)  Sell or otherwise charge for any type of insurance

  2  in connection with a title loan agreement.

  3         (i)  Charge or receive any finance charge, interest, or

  4  fees that are not authorized pursuant to this act.

  5         (j)  Act as a title loan lender without an active

  6  license issued under this act.

  7         (k)  Refuse to accept partial payments toward

  8  satisfying any obligation owed under a title loan agreement or

  9  extension of such agreement.

10         (l)  Charge a prepayment penalty.

11         (m)  Engage in the business of selling new or used

12  motor vehicles, or parts for motor vehicles.

13         (n)  Act as a title loan lender under this act within a

14  place of business in which the licensee solicits or engages in

15  business outside the scope of this act if the department

16  determines that the licensee's operation of and conduct

17  pertaining to such other business results in an evasion of

18  this act.  Upon making such a determination, the department

19  shall order the licensee to cease and desist from such

20  evasion. However, a licensee may not engage in the pawnbroker

21  business.

22         (2)  Title loan companies may not advertise using the

23  phrases "interest-free loans," "zero-percent interest," or "no

24  finance charges."

25         Section 13.  Right to reclaim; lost title loan

26  agreement.--

27         (1)  Any person presenting identification of such

28  person as the borrower and presenting the borrower's copy of

29  the title loan agreement to the title loan lender is presumed

30  to be entitled to reclaim the loan property described in the

31  title loan agreement. However, if the title loan lender

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  1  determines that the person is not the borrower, the title loan

  2  lender is not required to allow the redemption of the loan

  3  property by such person. The person reclaiming the loan

  4  property must sign the borrower's copy of the title loan

  5  agreement, which copy the title loan lender may retain as

  6  evidence of such person's receipt of the loan property. A

  7  person reclaiming the loan property who is not the borrower

  8  must show identification to the title loan lender, together

  9  with notarized written authorization from the borrower, and

10  the title loan lender must record that person's name and

11  address on the title loan agreement retained by the title loan

12  lender. In such case, the person reclaiming the borrower's

13  copy of the title loan agreement must be provided a copy of

14  such signed form as evidence of such agreement.

15         (2)  If the borrower's copy of the title loan agreement

16  is lost, destroyed, or stolen, the borrower must notify the

17  title loan lender, in writing by certified or registered mail,

18  return receipt requested, or in person evidenced by a signed

19  receipt, and receipt of such notice invalidates such title

20  loan agreement if the loan property has not previously been

21  reclaimed. Before delivering the loan property or issuing a

22  new title loan agreement, the title loan lender must require

23  the borrower to make a written statement of the loss,

24  destruction, or theft of the borrower's copy of the title loan

25  agreement. The title loan lender must record on the written

26  statement the type of identification and the identification

27  number accepted from the borrower, the date the statement is

28  given, and the number or date of the title loan agreement that

29  has been lost, destroyed, or stolen. The statement must be

30  signed by the title loan lender or the title loan office

31  employee who accepts the statement from the borrower.  The

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  1  title loan lender may not impose any type of fee for providing

  2  the borrower with a copy of the title loan agreement.

  3         Section 14.  Criminal penalties.--

  4         (1)  Any person who acts as a title loan lender without

  5  first securing the license prescribed by this act commits a

  6  felony of the third degree, punishable as provided in section

  7  775.082, section 775.083, or section 775.084, Florida

  8  Statutes.

  9         (2)  In addition to any other applicable penalty, any

10  person who willfully violates any provision of this act or who

11  willfully makes a false entry in any record specifically

12  required by this act commits a misdemeanor of the first

13  degree, punishable as provided in section 775.082 or section

14  775.083, Florida Statutes.

15         Section 15.  Subpoenas; enforcement actions; rules.--

16         (1)  The department may issue and serve subpoenas to

17  compel the attendance of witnesses and the production of

18  documents, papers, books, records, and other evidence before

19  the department in any matter pertaining to this act. The

20  department may administer oaths and affirmations to any person

21  whose testimony is required. If any person refuses to testify

22  or to produce books, records, and documents, or otherwise

23  refuses to obey a subpoena issued under this section, the

24  department may enforce the subpoena in the same manner as

25  subpoenas issued under the Administrative Procedure Act are

26  enforced. Witnesses are entitled to the same fees and mileage

27  as they are entitled to by law for attending as witnesses in

28  the circuit court, unless such examination or investigation is

29  held at the place of business or residence of the witness.

30

31

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  1         (2)  In addition to any other powers conferred upon the

  2  department to enforce or administer this act, the department

  3  may:

  4         (a)  Bring an action in any court of competent

  5  jurisdiction to enforce or administer this act, any rule or

  6  order adopted under this act, or any written agreement entered

  7  into with the department. In such action, the department may

  8  seek any relief at law or equity, including a temporary or

  9  permanent injunction, appointment of a receiver or

10  administrator, or an order of restitution.

11         (b)  Issue and serve upon a person an order requiring

12  such person to cease and desist and take corrective action

13  whenever the department finds that such person is violating,

14  has violated, or is about to violate any provision of this

15  act, any rule or order adopted under this act, or any written

16  agreement entered into with the department.

17         (c)  Whenever the department finds that conduct

18  described in paragraph (b) presents an immediate danger to the

19  public health, safety, or welfare requiring an immediate final

20  order, the department may issue an emergency cease and desist

21  order reciting with particularity the facts underlying such

22  findings. The emergency cease and desist order is effective

23  immediately upon service of a copy of the order on the

24  respondent named in the order and shall remain effective for

25  90 days. If the department begins nonemergency proceedings

26  under paragraph (b), the emergency cease and desist order

27  remains effective until the conclusion of the proceedings

28  under sections 120.569 and 120.57, Florida Statutes.

29         (3)  The department may adopt rules to administer this

30  act.

31         Section 16.  Investigations and complaints.--

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  1         (1)  The department may make any investigation and

  2  examination of any licensee or other person the department

  3  deems necessary to determine compliance with this act. For

  4  such purposes, the department may examine the books, accounts,

  5  records, and other documents or matters of any licensee or

  6  other person. The department may compel the production of all

  7  relevant books, records, and other documents and materials

  8  relative to an examination or investigation. Examinations

  9  shall not be made more often than once during any 12-month

10  period unless the department has reason to believe the

11  licensee is not complying with this act.

12         (2)  The department shall conduct all examinations at a

13  convenient location in this state unless the department

14  determines that it is more effective or cost-efficient to

15  perform an examination at the licensee's out-of-state

16  location.  For an examination performed at the licensee's

17  out-of-state location, the licensee shall pay the travel

18  expense and per diem subsistence at the rate provided by law

19  for up to 30 8-hour days per year for each department examiner

20  who participates in such an examination.  However, if the

21  examination involves or reveals possible fraudulent conduct by

22  the licensee, the licensee shall pay the travel expenses and

23  per diem subsistence provided by law, without limitation, for

24  each participating examiner.

25         (3)  Any person having reason to believe that any

26  provision of this act has been violated may file with the

27  department a written complaint setting forth the details of

28  such alleged violation and the department may investigate such

29  complaint.

30         Section 17.  The Department of Banking and Finance

31  shall establish a consumer awareness program to assist

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  1  consumers in understanding their rights and responsibilities

  2  under this act.

  3         Section 18.  Paragraphs (a) and (h) of subsection (1)

  4  of section 538.03, Florida Statutes, are amended to read:

  5         538.03  Definitions; applicability.--

  6         (1)  As used in this part, the term:

  7         (a)  "Secondhand dealer" means any person, corporation,

  8  or other business organization or entity which is not a

  9  secondary metals recycler subject to part II and which is

10  engaged in the business of purchasing, consigning, or pawning

11  secondhand goods or entering into title loan transactions.

12  However, secondhand dealers are not limited to dealing only in

13  items defined as secondhand goods in paragraph (g).  Except as

14  provided in subsection (2), the term means pawnbrokers,

15  jewelers, precious metals dealers, garage sale operators,

16  secondhand stores, and consignment shops.

17         (h)  "Transaction" means any title loan, purchase,

18  consignment, or pawn of secondhand goods by a secondhand

19  dealer.

20         Section 19.  Subsection (1) of section 538.16, Florida

21  Statutes, is amended to read:

22         538.16  Secondhand dealers; disposal of property.--

23         (1)  Any personal property pawned with a pawnbroker,

24  whether the pawn is a loan of money or a buy-sell agreement or

25  a motor vehicle which is security for a title loan, is subject

26  to sale or disposal if the pawn is a loan of money and the

27  property has not been redeemed or there has been no payment on

28  account made for a period of 90 days, or if the pawn is a

29  buy-sell agreement or if it is a title loan and the property

30  has not been repurchased from the pawnbroker or the title

31

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  1  redeemed from the title lender or there has been no payment

  2  made on account within 60 days.

  3         Section 20.  Nothing in this act precludes a county or

  4  municipality from adopting ordinances more restrictive than

  5  the provisions of this act.

  6         Section 21.  Effective July 1, 2000, the sum of

  7  $500,000 is appropriated for the 2000-2001 fiscal year from

  8  the Regulatory Trust Fund of the Department of Banking and

  9  Finance to the Department of Banking and Finance to fund eight

10  positions for the purpose of carrying out the provisions of

11  this act.

12         Section 22.  Paragraph (i) of subsection (1) of section

13  538.03, Florida Statutes, subsection (5) of section 538.06,

14  Florida Statutes, and subsections (4) and (5) of section

15  538.15, Florida Statutes, are repealed.

16         Section 23.  Subsection (1) of section 560.309, Florida

17  Statutes. is amended to read:

18         560.309  Rules.--

19         (1)  Before a registrant shall deposit, with any

20  financial institution, a payment instrument that is cashed by

21  a registrant, each such item must be endorsed with the actual

22  name under which such registrant is doing business. If a

23  payment instrument received from a customer is not deposited

24  within 2 business days, excluding Saturdays and Sundays, after

25  receipt, the transaction is considered to be a consumer

26  finance loan and is subject to the provisions of chapter 516.

27         Section 24.  If any provision of this act or the

28  application thereof to any person or circumstance is held

29  invalid, the invalidity shall not affect other provisions or

30  applications of the act which can be given effect without the

31

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  1  invalid provision or application, and to this end the

  2  provisions of this act are declared severable.

  3         Section 25.  Except as otherwise provided in this act,

  4  this act shall take effect October 1, 2000.

  5

  6            *****************************************

  7                       LEGISLATIVE SUMMARY

  8
      Creates the "Fair Accountability in Interest Rates Act of
  9    2000" and requires licensure by the Department of Banking
      and Finance to be in the business as a title loan lender.
10    Provides for eligibility for licensure; for applications;
      for suspension or revocation of licenses; for
11    recordkeeping, reporting, and safekeeping of property;
      for title loan charges; for the disposal of pledged
12    property; and for disposition of excess proceeds.
      Prohibits specified acts. Provides for a right to redeem;
13    for a title loan lender's lien; for criminal penalties;
      for accessing records from the Department of Law
14    Enforcement; for subpoenas, enforcement of actions, and
      rules; and for complaints and investigations. Provides
15    for more-restrictive local ordinances. (See bill for
      details.)
16

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