Senate Bill sb0094c1

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    Florida Senate - 2001                             CS for SB 94

    By the Committee on Judiciary and Senator Laurent





    308-824-01

  1                      A bill to be entitled

  2         An act relating to consumer collection

  3         practices; amending s. 559.72, F.S.;

  4         prohibiting certain communications with a

  5         debtor who is represented by an attorney;

  6         prohibiting the causing of charges to be made

  7         to a debtor; amending s. 559.77, F.S.; revising

  8         civil remedies for engaging in prohibited

  9         collection practices; providing for damages in

10         class actions; prescribing circumstances under

11         which liability does not attach; providing a

12         limitation on bringing an action for a remedy

13         for unlawful collection practices; providing an

14         effective date.

15

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

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18         Section 1.  Section 559.72, Florida Statutes, is

19  amended to read:

20         559.72  Prohibited practices generally.--In collecting

21  consumer debts, no person shall:

22         (1)  Simulate in any manner a law enforcement officer

23  or a representative of any governmental agency;

24         (2)  Use or threaten force or violence;

25         (3)  Tell a debtor who disputes a consumer debt that

26  she or he or any person employing her or him will disclose to

27  another, orally or in writing, directly or indirectly,

28  information affecting the debtor's reputation for credit

29  worthiness without also informing the debtor that the

30  existence of the dispute will also be disclosed as required by

31  subsection (6);

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    Florida Senate - 2001                             CS for SB 94
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  1         (4)  Communicate or threaten to communicate with a

  2  debtor's employer prior to obtaining final judgment against

  3  the debtor, unless the debtor gives her or his permission in

  4  writing to contact her or his employer or acknowledges in

  5  writing the existence of the debt after the debt has been

  6  placed for collection, but this shall not prohibit a person

  7  from telling the debtor that her or his employer will be

  8  contacted if a final judgment is obtained;

  9         (5)  Disclose to a person other than the debtor or her

10  or his family information affecting the debtor's reputation,

11  whether or not for credit worthiness, with knowledge or reason

12  to know that the other person does not have a legitimate

13  business need for the information or that the information is

14  false;

15         (6)  Disclose information concerning the existence of a

16  debt known to be reasonably disputed by the debtor without

17  disclosing that fact.  If a disclosure is made prior to such

18  reasonable dispute having been asserted and written notice is

19  received from the debtor that any part of the debt is disputed

20  and if such dispute is reasonable, the person who made the

21  original disclosure shall reveal upon the request of the

22  debtor within 30 days the details of the dispute to each

23  person to whom disclosure of the debt without notice of the

24  dispute was made within the preceding 90 days;

25         (7)  Willfully communicate with the debtor or any

26  member of her or his family with such frequency as can

27  reasonably be expected to harass the debtor or her or his

28  family, or willfully engage in other conduct which can

29  reasonably be expected to abuse or harass the debtor or any

30  member of her or his family;

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    Florida Senate - 2001                             CS for SB 94
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  1         (8)  Use profane, obscene, vulgar, or willfully abusive

  2  language in communicating with the debtor or any member of her

  3  or his family;

  4         (9)  Claim, attempt, or threaten to enforce a debt when

  5  such person knows that the debt is not legitimate or assert

  6  the existence of some other legal right when such person knows

  7  that the right does not exist;

  8         (10)  Use a communication which simulates in any manner

  9  legal or judicial process or which gives the appearance of

10  being authorized, issued or approved by a government,

11  governmental agency, or attorney at law, when it is not;

12         (11)  Communicate with a debtor under the guise of an

13  attorney by using the stationery of an attorney or forms or

14  instruments which only attorneys are authorized to prepare;

15         (12)  Orally communicate with a debtor in such a manner

16  as to give the false impression or appearance that such person

17  is or is associated with an attorney;

18         (13)  Advertise or threaten to advertise for sale any

19  debt as a means to enforce payment except under court order or

20  when acting as an assignee for the benefit of a creditor;

21         (14)  Publish or post, threaten to publish or post, or

22  cause to be published or posted before the general public

23  individual names or any list of names of debtors, commonly

24  known as a deadbeat list, for the purpose of enforcing or

25  attempting to enforce collection of consumer debts;

26         (15)  Refuse to provide adequate identification of

27  herself or himself or her or his employer or other entity whom

28  she or he represents when requested to do so by a debtor from

29  whom she or he is collecting or attempting to collect a

30  consumer debt;

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    Florida Senate - 2001                             CS for SB 94
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  1         (16)  Mail any communication to a debtor in an envelope

  2  or postcard with words typed, written, or printed on the

  3  outside of the envelope or postcard calculated to embarrass

  4  the debtor.  An example of this would be an envelope addressed

  5  to "Deadbeat, Jane Doe" or "Deadbeat, John Doe"; or

  6         (17)  Communicate with the debtor between the hours of

  7  9 p.m. and 8 a.m. in the debtor's time zone without the prior

  8  consent of the debtor;.

  9         (18)  Communicate with a debtor if the person knows

10  that the debtor is represented by an attorney with respect to

11  such debt and has knowledge of, or can readily ascertain, such

12  attorney's name and address, unless the debtor's attorney

13  fails to respond within a reasonable period of time to a

14  communication from the person, unless the debtor's attorney

15  consents to a direct communication with the debtor, or unless

16  the debtor initiates the communication; or

17         (19)  Cause charges to be made to any debtor for

18  communications by concealment of the true purpose of the

19  communication, including collect telephone calls and telegram

20  fees.

21         Section 2.  Section 559.77, Florida Statutes, is

22  amended to read:

23         559.77  Civil remedies.--

24         (1)  A debtor may bring a civil action against a person

25  violating the provisions of s. 559.72 in a court of competent

26  jurisdiction of the county in which the alleged violator

27  resides or has his or her principal place of business or in

28  the county wherein the alleged violation occurred.

29         (2)  Upon adverse adjudication, the defendant shall be

30  liable for actual damages and for additional statutory damages

31  of up to $1,000 or $500, whichever is greater, together with

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    Florida Senate - 2001                             CS for SB 94
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  1  court costs and reasonable attorney's fees incurred by the

  2  plaintiff. In determining the defendant's liability for any

  3  additional statutory damages, the court shall consider the

  4  nature of the defendant's noncompliance with s. 559.72, the

  5  frequency and persistence of such noncompliance, and the

  6  extent to which such noncompliance was intentional. In any

  7  class-action lawsuit brought under this section, the court may

  8  award additional statutory damages of up to $1,000 for each

  9  named plaintiff and an aggregate award of additional statutory

10  damages not to exceed the lesser of $500,000 or 1 percent of

11  the defendant's net worth for all remaining class members. The

12  court may, in its discretion, award punitive damages and may

13  provide such equitable relief as it deems necessary or proper,

14  including enjoining the defendant from further violations of

15  this part.  If the court finds that the suit fails to raise a

16  justiciable issue of law or fact, the plaintiff shall be

17  liable for court costs and reasonable attorney's fees incurred

18  by the defendant.

19         (3)  A person shall not be held liable in any action

20  brought under this section if the person shows by a

21  preponderance of the evidence that the violation was not

22  intentional and resulted from a bona fide error,

23  notwithstanding the maintenance of procedures reasonably

24  adapted to avoid any such error.

25         (4)  An action brought under this section must be

26  commenced within 2 years after the date on which the alleged

27  violation occurred.

28         Section 3.  This act shall take effect July 1, 2001,

29  and applies to any cause of action accruing on or after that

30  date.

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    Florida Senate - 2001                             CS for SB 94
    308-824-01




  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                              SB 94

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  4  Adds an exception to the prohibited activity of communication
    with a debtor who is represented by an attorney. A person may
  5  communicate with a debtor who is represented by an attorney
    when the debtor initiates the communication.
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