HB 1245CS

CHAMBER ACTION




1The Committee on Judiciary recommends the following:
2
3     Committee Substitute
4     Remove the entire bill and insert:
5
A bill to be entitled
6An act relating to credit counseling services; creating
7pt. IV, ch. 817, F.S.; providing definitions; prohibiting
8certain persons from accepting certain fees or costs from
9debtors under certain circumstances; providing exceptions;
10providing disclosure and financial reporting requirements
11for debt management or credit counseling services;
12requiring an annual audit; requiring a fidelity bond;
13providing public inspection requirements; providing
14disbursement of funds requirements; requiring maintenance
15of a separate trust account under certain circumstances;
16specifying certain violations as unfair or deceptive trade
17practices; providing for penalties and damages; providing
18for actions for damages; providing a criminal penalty;
19providing for awards of attorney's fees and costs;
20providing an effective date.
21
22Be It Enacted by the Legislature of the State of Florida:
23
24     Section 1.  Part IV of chapter 817, Florida Statutes,
25consisting of sections 817.801, 817.802, 817.803, 817.804, and
26817.805, Florida Statutes, is created to read:
27
PART IV
28
CREDIT COUNSELING SERVICES
29     817.801  Definitions.--As used in this part:
30     (1)  "Credit counseling services" means confidential money
31management, debt reduction, and financial educational services.
32     (2)  "Debt management services" means services provided to
33a debtor by a credit counseling organization for a fee to:
34     (a)  Effect the adjustment, compromise, or discharge of any
35unsecured account, note, or other indebtedness of the debtor; or
36     (b)  Receive from the debtor and disburse to a creditor any
37money or other thing of value.
38     (3)  "Person" means any individual, corporation,
39partnership, trust, association, or other legal entity.
40     (4)  "Credit counseling agency" means any organization
41providing credit counseling services.
42     817.802  Unlawful fees and costs.--
43     (1)  It is unlawful for any person, while engaging in debt
44management services or credit counseling services, to charge or
45accept from a debtor, directly or indirectly, a fee or
46contribution greater than $50 for the initial setup or initial
47consultation. Subsequently, such person may not charge or accept
48a fee or contribution greater than $120 per year for additional
49consultations or, if debt management services as defined in s.
50817.801(2)(b) are provided, such person may charge the greater
51of 7.5 percent of the amount paid monthly by such debtor to such
52person or $35 per month.
53     (2)  No provision of this part prohibits any person, while
54engaging in debt management services or credit counseling
55services, from imposing upon and receiving from a debtor a
56reasonable and separate charge or fee for insufficient funds
57transactions.
58     817.803  Exceptions.--Nothing in this part applies to any
59debt management services or credit counseling services provided
60in the practice of law in this state. Nothing in this part
61applies to any person or entity who engages in debt adjustment
62to adjust the indebtedness owed to such person or entity.
63Nothing in this part applies to the following entities or their
64subsidiaries: the Federal National Mortgage Association; the
65Federal Home Loan Mortgage Corporation; the Florida Housing
66Finance Corporation, a public corporation created in s. 420.504,
67or a bank, bank holding company, trust company, savings and loan
68association, credit union, credit card bank, or savings bank
69that is regulated and supervised by the Office of the
70Comptroller of the Currency, the Office of Thrift Supervision,
71the Federal Reserve, the Federal Deposit Insurance Corporation,
72the National Credit Union Administration, or the Department of
73Financial Services.
74     817.804  Requirements; disclosure and financial
75reporting.--
76     (1)  Any person engaged in debt management services or
77credit counseling services shall:
78     (a)  Obtain from a certified public accountant licensed
79pursuant to s. 473.308 an annual audit of all accounts of such
80person in which the funds of debtors are deposited and from
81which payments are made to creditors on behalf of debtors.
82     (b)  Obtain and maintain at all times a fidelity bond in an
83amount not less than the greater of $100,000 or 10 percent of
84the monthly average for the immediately preceding 6 months of
85the aggregate amount of all deposits made with such person by
86all debtors, provided the amount of such bond is not required to
87exceed $500,000. The deductible on such coverage shall not
88exceed 10 percent of the face amount of the policy coverage.
89Such policy shall be issued by a company rated at least "A-" or
90its equivalent by a nationally recognized rating organization
91and shall provide for 30 days' advance written notice of
92termination of the policy.
93     (2)  A copy of the annual audit and insurance policies
94required by this section shall be available for public
95inspection at each branch location. Copies shall be made upon
96written request to any party requesting a copy for a charge not
97to exceed the cost of the reproduction of documents.
98     817.805  Disbursement of funds.--
99     (1)  Any person engaged in debt management services or
100credit counseling services shall disburse to the appropriate
101creditors all funds received from a debtor, less any fees
102permitted by s. 817.802, within 30 days after receipt of such
103funds. Further, any person engaged in such services shall
104maintain a separate trust account for the receipt of any funds
105from each debtor and the disbursement of such funds on behalf of
106such debtor.
107     (2)  Any violation of this part by a person or agent or
108employee of a person is an unfair or deceptive trade practice as
109defined in part II of chapter 501. Violators shall be subject to
110the penalties and remedies provided in such part. Further, any
111consumer injured by a violation of this part may bring an action
112for recovery of damages. Judgment shall be entered for actual
113damages, but in no case less than the amount paid by the buyer
114to the credit counseling organization, plus reasonable
115attorney's fees and costs.
116     (3)  Any person convicted of violating any provision of
117this section commits a felony of the third degree, punishable as
118provided in s. 775.082 or s. 775.083.
119     Section 2.  This act shall take effect upon becoming a law.


CODING: Words stricken are deletions; words underlined are additions.