Senate Bill sb0094er

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    2001 Legislature                   CS for SB 94, 1st Engrossed



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  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

14         for application of federal precedent regarding

15         corresponding federal laws; providing an

16         effective date.

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

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20         Section 1.  Section 559.72, Florida Statutes, is

21  amended to read:

22         559.72  Prohibited practices generally.--In collecting

23  consumer debts, no person shall:

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

25  or a representative of any governmental agency;

26         (2)  Use or threaten force or violence;

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

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

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

30  information affecting the debtor's reputation for credit

31  worthiness without also informing the debtor that the


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    2001 Legislature                   CS for SB 94, 1st Engrossed



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

  2  subsection (6);

  3         (4)  Communicate or threaten to communicate with a

  4  debtor's employer prior to obtaining final judgment against

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

  6  writing to contact her or his employer or acknowledges in

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

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

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

10  contacted if a final judgment is obtained;

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

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

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

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

15  business need for the information or that the information is

16  false;

17         (6)  Disclose information concerning the existence of a

18  debt known to be reasonably disputed by the debtor without

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

20  reasonable dispute having been asserted and written notice is

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

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

23  original disclosure shall reveal upon the request of the

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

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

26  dispute was made within the preceding 90 days;

27         (7)  Willfully communicate with the debtor or any

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

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

30  family, or willfully engage in other conduct which can

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    2001 Legislature                   CS for SB 94, 1st Engrossed



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

  2  member of her or his family;

  3         (8)  Use profane, obscene, vulgar, or willfully abusive

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

  5  or his family;

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

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

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

  9  that the right does not exist;

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

11  legal or judicial process or which gives the appearance of

12  being authorized, issued or approved by a government,

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

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

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

16  instruments which only attorneys are authorized to prepare;

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

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

19  is or is associated with an attorney;

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

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

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

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

24  cause to be published or posted before the general public

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

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

27  attempting to enforce collection of consumer debts;

28         (15)  Refuse to provide adequate identification of

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

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

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    2001 Legislature                   CS for SB 94, 1st Engrossed



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

  2  consumer debt;

  3         (16)  Mail any communication to a debtor in an envelope

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

  5  outside of the envelope or postcard calculated to embarrass

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

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

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

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

10  consent of the debtor;.

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

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

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

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

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

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

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

18  the debtor initiates the communication; or

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

20  communications by concealment of the true purpose of the

21  communication, including collect telephone calls and telegram

22  fees.

23         Section 2.  Section 559.77, Florida Statutes, is

24  amended to read:

25         559.77  Civil remedies.--

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

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

28  jurisdiction of the county in which the alleged violator

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

30  the county wherein the alleged violation occurred.

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    2001 Legislature                   CS for SB 94, 1st Engrossed



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

  2  liable for actual damages and for additional statutory damages

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

  4  court costs and reasonable attorney's fees incurred by the

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

  6  additional statutory damages, the court shall consider the

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

  8  frequency and persistence of such noncompliance, and the

  9  extent to which such noncompliance was intentional. In any

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

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

12  named plaintiff and an aggregate award of additional statutory

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

14  the defendant's net worth for all remaining class members, but

15  in no event may this aggregate award provide an individual

16  class member with additional statutory damages in excess of

17  $1,000. The court may, in its discretion, award punitive

18  damages and may provide such equitable relief as it deems

19  necessary or proper, including enjoining the defendant from

20  further violations of this part.  If the court finds that the

21  suit fails to raise a justiciable issue of law or fact, the

22  plaintiff shall be liable for court costs and reasonable

23  attorney's fees incurred by the defendant.

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

25  brought under this section if the person shows by a

26  preponderance of the evidence that the violation was not

27  intentional and resulted from a bona fide error,

28  notwithstanding the maintenance of procedures reasonably

29  adapted to avoid any such error.

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    2001 Legislature                   CS for SB 94, 1st Engrossed



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

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

  3  violation occurred.

  4         (5)  In applying and construing this section, due

  5  consideration and great weight shall be given to the

  6  interpretations of the Federal Trade Commission and the

  7  federal courts relating to the federal Fair Debt Collection

  8  Practices Act.

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

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

11  date.

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