Florida Senate - 2009                                    SB 1056
       
       
       
       By Senator Fasano
       
       
       
       
       11-00729A-09                                          20091056__
    1                        A bill to be entitled                      
    2         An act relating to tax refund loans or checks;
    3         providing a short title; providing definitions;
    4         requiring a person engaged in providing refund
    5         anticipation loans or checks to comply with certain
    6         requirements; requiring facilitators of refund
    7         anticipation loans or checks to disclose certain
    8         information; prescribing how that information must be
    9         displayed; requiring a facilitator to disclose certain
   10         information in an application for a refund
   11         anticipation loan or check; prescribing how that
   12         information must be displayed; requiring a facilitator
   13         to provide certain information orally to an applicant
   14         for a refund anticipation loan or check; providing
   15         activities that are prohibited when transacting a
   16         refund anticipation loan or check; limiting the amount
   17         of interest that may be charged on a refund
   18         anticipation loan; requiring refund anticipation loan
   19         and check marketing and advertizing efforts to include
   20         certain disclosures; providing remedies, including
   21         attorney's fees and costs; providing an effective
   22         date.
   23         
   24  Be It Enacted by the Legislature of the State of Florida:
   25         
   26         Section 1. Tax Refund Anticipation Loan Act.—
   27         (1)TITLE.—This section may be cited as the “Tax Refund
   28  Anticipation Loan Act.”
   29         (2)DEFINITIONS.—As used in the section, the term:
   30         (a)“Consumer” means an individual who singly, or jointly
   31  with another consumer, is solicited for, applies for, or
   32  receives the proceeds of a refund anticipation loan or refund
   33  anticipation check.
   34         (b)“Creditor” means a person who makes a refund
   35  anticipation loan or who takes an assignment of a refund
   36  anticipation loan.
   37         (c)“Facilitator” means a person who individually or with
   38  another:
   39         1.Solicits the execution of, processes, receives, or
   40  accepts an application or agreement for a refund anticipation
   41  loan or refund anticipation check;
   42         2.Services or collects upon a refund anticipation loan or
   43  refund anticipation check; or
   44         3.Otherwise facilitates the making of a refund
   45  anticipation loan or refund anticipation check.
   46  If there is no third-party facilitator because a creditor
   47  directly solicits the execution of, receives, or accepts an
   48  application or agreement for a refund anticipation loan or
   49  refund anticipation check, the creditor is the facilitator.
   50         (d)“Market” or “advertise” means to produce, distribute,
   51  broadcast, or otherwise display written materials, oral
   52  statements, or visual materials describing products and
   53  services.
   54         (e)“Person” has the same meaning as in s. 1.01.
   55         (f)“Refund anticipation check” means a check, stored value
   56  card, or other payment mechanism representing the proceeds of a
   57  consumer’s tax refund which is issued by a depository
   58  institution or other person that receives the direct deposit of
   59  the consumer’s tax refund or tax credits, and for which the
   60  consumer has paid a fee or other consideration for such payment.
   61         (g)“Refund anticipation loan” means a loan that is secured
   62  by or that the creditor arranges to be repaid, directly or
   63  indirectly, from the proceeds of the consumer's income tax
   64  refund or tax credits. A refund anticipation loan also includes
   65  any sale, assignment, or purchase of a consumer’s tax refund at
   66  a discount or for a fee, regardless of whether the consumer is
   67  required to repay the buyer or assignee if the Internal Revenue
   68  Service denies or reduces the consumer’s tax refund.
   69         (h)“Refund anticipation loan fee” means the charges, fees,
   70  or other consideration charged or imposed, directly or
   71  indirectly, by the creditor for the making of or in connection
   72  with a refund anticipation loan.
   73         (i)“Refund anticipation loan interest rate” means the
   74  interest rate for a refund anticipation loan calculated as
   75  follows: the total amount of refund anticipation loan fees,
   76  divided by the loan amount minus any loan fees, divided by the
   77  number of days in the loan term, multiplied by 365 and expressed
   78  as a percentage. The total amount of the refund anticipation
   79  loan fees must include all refund anticipation loan fees
   80  imposed. If a deposit account is established or maintained, in
   81  whole or in part, to receive the consumer's tax refund in order
   82  to repay the amount owed on a refund anticipation loan:
   83         1.Any fee charged to the consumer for such deposit account
   84  is considered a loan fee and must be included in calculating the
   85  refund anticipation loan interest rate; and
   86         2.For the purpose of determining the refund anticipation
   87  loan interest rate, the maturity date of the loan is the
   88  estimated date that the tax refund will be deposited in the
   89  deposit account. If a deposit account is not established or
   90  maintained, the maturity date of the loan is the estimated date
   91  that the tax refund is received by the creditor.
   92         (3)SCOPE.—A person, including an agent or employee of such
   93  person, may not, individually or with another person, directly
   94  or indirectly, solicit the execution of, process, receive, or
   95  accept an application or agreement for a tax refund anticipation
   96  loan or refund anticipation check, or in any other manner
   97  facilitate the making of a refund anticipation loan or refund
   98  anticipation check unless the person has complied with the
   99  provisions of this section.
  100         (4)POSTING OF FEE SCHEDULES AND DISCLOSURES.—
  101         (a)Each facilitator must display a fee schedule showing
  102  the current fees for refund anticipation loans or refund
  103  anticipation checks transacted at the facilitator's place of
  104  business in a prominent location at the place of business, in at
  105  least 28-point type, and, unless otherwise noted, on a document
  106  measuring at least 16 inches by 20 inches. The fee schedule must
  107  also include:
  108         1.Examples of the refund anticipation loan interest rate
  109  for at least five different refund anticipation loan amounts
  110  calculated in accordance with the formula set forth in paragraph
  111  (2)(i).
  112         2.The following statement centered and in 1-inch uppercase
  113  and bold type:
  114                    TAX REFUND ANTICIPATION LOANS                  
  115         WHEN YOU TAKE OUT A REFUND ANTICIPATION LOAN, YOU ARE
  116         BORROWING MONEY AGAINST YOUR TAX REFUND. IF YOUR TAX
  117         REFUND IS LESS THAN EXPECTED, YOU WILL STILL OWE THE
  118         ENTIRE AMOUNT OF THE LOAN. IF YOUR REFUND IS DELAYED,
  119         YOU MAY HAVE TO PAY ADDITIONAL FEES.
  120         YOU WILL USUALLY RECEIVE YOUR TAX REFUND IN 8 TO 15
  121         DAYS WITHOUT OBTAINING A LOAN OR PAYING EXTRA FEES IF
  122         YOUR TAX RETURN IS FILED ELECTRONICALLY AND YOUR
  123         REFUND IS DEPOSITED DIRECTLY INTO YOUR BANK ACCOUNT.
  124         (b)A facilitator may not facilitate a refund anticipation
  125  loan or refund anticipation check unless the disclosures
  126  required by this section are displayed and the fee charged for
  127  the loan or check is the same as the fee displayed on the
  128  schedule.
  129         (5)APPLICATION DISCLOSURES.—
  130         (a)When a consumer applies for a refund anticipation loan
  131  or refund anticipation check, the facilitator must disclose to
  132  the consumer on a form separate from the application in 14-point
  133  type, unless otherwise noted:
  134         1.The fee for the refund anticipation loan or refund
  135  anticipation check.
  136         2.The fee for tax preparation and any other fee charged to
  137  the consumer.
  138         3.The time within which the proceeds of the refund
  139  anticipation loan or check will be paid to the consumer if the
  140  loan or check is approved.
  141         4.For refund anticipation loans, the following statement
  142  centered and in 18-point uppercase and bold type:
  143                               NOTICE                              
  144         THIS IS A LOAN. YOU ARE BORROWING MONEY AGAINST YOUR
  145         TAX REFUND. IF YOUR TAX REFUND IS LESS THAN EXPECTED,
  146         YOU WILL STILL OWE THE ENTIRE AMOUNT OF THE LOAN. IF
  147         YOUR REFUND IS DELAYED, YOU MAY HAVE TO PAY ADDITIONAL
  148         FEES.
  149         YOU WILL USUALLY RECEIVE YOUR REFUND IN 8 TO 15 DAYS
  150         WITHOUT OBTAINING A LOAN OR PAYING EXTRA FEES IF YOUR
  151         TAX RETURN IS FILED ELECTRONICALLY AND YOUR REFUND IS
  152         DEPOSITED DIRECTLY INTO YOUR BANK ACCOUNT.
  153         5.For refund anticipation loans, the refund anticipation
  154  loan interest rate calculated in accordance with the formula set
  155  forth in paragraph (2)(i).
  156         6.For refund anticipation checks, the following statement
  157  centered and in 18-point bold and uppercase type:
  158                               NOTICE                              
  159         YOU ARE PAYING [...amount of refund anticipation check
  160         fee...] TO RECEIVE YOUR REFUND CHECK THROUGH [...name
  161         of issuer of refund anticipation check...]. YOU MAY
  162         AVOID THIS FEE AND STILL RECEIVE YOUR REFUND IN THE
  163         SAME AMOUNT OF TIME BY HAVING YOUR REFUND DIRECTLY
  164         DEPOSITED INTO YOUR BANK ACCOUNT. YOU MAY ALSO WAIT
  165         FOR THE INTERNAL REVENUE SERVICE (IRS) TO MAIL YOU A
  166         CHECK. IF YOU DO NOT HAVE A BANK ACCOUNT, YOU MAY WANT
  167         TO CONSIDER GETTING ONE.
  168         (b)Before consummating the loan or check transaction, the
  169  facilitator must provide to the consumer, in a form that can be
  170  kept by the consumer, the disclosure required by paragraph (a),
  171  a copy of the completed loan or check application and agreement,
  172  and, for refund anticipation loans, the disclosures required
  173  under the federal Truth-In-Lending Act.
  174         (c)The disclosures required by paragraph (a) must be
  175  provided in English and in the language used primarily for oral
  176  communication between the facilitator and the consumer.
  177         (6)ORAL DISCLOSURES.—
  178         (a)If a consumer applies for a refund anticipation loan,
  179  the facilitator must orally inform the consumer in the language
  180  primarily used for oral communications between the facilitator
  181  and consumer:
  182         1.That the product is a loan that lasts only for 1 to 2
  183  weeks;
  184         2.If the consumer’s tax refund is less than expected, the
  185  consumer is liable for the full amount of the loan and must
  186  repay any difference;
  187         3.The amount of the refund anticipation loan fee; and
  188         4.The refund anticipation loan interest rate.
  189         (b)If a consumer applies for a refund anticipation check,
  190  the facilitator must orally inform the consumer in the language
  191  primarily used for oral communications between the facilitator
  192  and consumer:
  193         1.The amount of the refund anticipation check fee; and
  194         2.That the consumer will usually receive a refund in the
  195  same amount of time without a fee if the tax return is filed
  196  electronically and the consumer chooses to have the refund
  197  directly deposited to the consumer’s bank account.
  198         (c)If the facilitator provides an estimate of the amount
  199  that the consumer will receive after deducting fees for tax
  200  preparation and fees for the refund anticipation loan or refund
  201  anticipation check, the facilitator must also describe all the
  202  options available to the consumer and the refund amount and the
  203  charge for each fee under each option, including:
  204         1.Not obtaining a refund anticipation loan or check and
  205  receiving the full tax refund amount by mail within 3 to 8 weeks
  206  if the tax return is mailed.
  207         2.Not obtaining a refund anticipation loan or check and
  208  receiving the full refund amount within 8 to 15 days if the tax
  209  return is electronically filed and the refund is directly
  210  deposited to the consumer's bank account.
  211         3.Obtaining a refund anticipation check within 8 to 15
  212  days in the amount anticipated from preparing the tax refund,
  213  minus the refund anticipation check fee, the tax preparation
  214  fee, and any other fee charged, and not receiving a refund
  215  check.
  216         4.Obtaining a refund anticipation loan within 1 to 2 days
  217  in the amount anticipated from preparing the tax refund, minus
  218  the refund anticipation loan fee, the tax preparation fee, and
  219  any other fee charged, and not receiving a refund check.
  220  These disclosures may be used to fulfill the requirements of
  221  subparagraph (a)3. or paragraph (b).
  222         (7)PROHIBITED ACTIVITIES.—A person, including an agent or
  223  employee of such person, may not:
  224         (a)Charge or impose any fee, charge, or other
  225  consideration in the making or facilitating of a refund
  226  anticipation loan or refund anticipation check apart from the
  227  fee charged by the creditor or bank that provides the loan or
  228  check. This prohibition does not include any charge or fee
  229  imposed by the facilitator to all of its customers, such as a
  230  fee for preparing tax returns, if the same fee amount is charged
  231  to customers who do not receive a refund anticipation loan,
  232  refund anticipation check, or any other tax-related financial
  233  product.
  234         (b)Engage in unfair or deceptive acts or practices in
  235  transacting a refund anticipation check or a refund anticipation
  236  loan, including making any oral statements contradicting any of
  237  the information required to be disclosed under this section.
  238         (c)Fail to comply with any applicable provision of this
  239  section.
  240         (d)In transacting a refund anticipation loan or refund
  241  anticipation check, threaten to take any action that is
  242  prohibited by this section or any other law, or that the person
  243  does not actually intend to take.
  244         (e)Directly or indirectly, arrange for any third party to
  245  charge any interest, fee, or charge related to a refund
  246  anticipation loan or refund anticipation check, other than the
  247  loan or check fee imposed by the creditor, including, but not
  248  limited to, charges for insurance, attorney's fees or other
  249  collection costs, or check cashing.
  250         (f)Include any of the following provisions in any document
  251  provided or signed in connection with a refund anticipation loan
  252  or refund anticipation check, including the loan application or
  253  agreement:
  254         1.A hold harmless clause.
  255         2.A confession of judgment clause.
  256         3.A waiver of the right to a jury trial, if applicable, in
  257  any action brought by or against the consumer.
  258         4.Any assignment of, or order for, payment of wages or
  259  other compensation for services.
  260         5.A provision in which the consumer agrees not to assert
  261  any claim or defense arising out of the contract, or to seek any
  262  remedies available under this section.
  263         6.A waiver of any provision of this section. Any such
  264  waiver is null, void, and of no effect.
  265         7.A waiver of the right to injunctive, declaratory, other
  266  equitable relief, or relief on a class-wide basis.
  267         8.A requirement that any aspect of a resolution of a
  268  dispute between the parties to the agreement be kept
  269  confidential. This does not affect the right of the parties to
  270  agree that certain specified information is a trade secret or
  271  otherwise confidential or to later agree, after a dispute
  272  arises, to keep a resolution confidential.
  273         (g)Take, or arrange for a creditor to take, a security
  274  interest in any of the consumer's property, other than the
  275  proceeds of the consumer's tax refund, in order to secure
  276  payment of a refund anticipation loan.
  277         (h)Directly, indirectly, individually, or with another
  278  person, engage in the collection of an outstanding or delinquent
  279  refund anticipation loan for any creditor or assignee, including
  280  soliciting the execution of, processing, receiving, or accepting
  281  an application or agreement for a refund anticipation loan or
  282  refund anticipation check that contains a provision authorizing
  283  the creditor to repay, by offset or other means, an outstanding
  284  or delinquent refund anticipation loan from the proceeds of the
  285  consumer’s tax refund.
  286         (i)Refer, facilitate, or solicit consumers on behalf of a
  287  third party engaged in check cashing for a fee, or allow third
  288  party check cashing for a fee, in any place of business in which
  289  refund anticipation loans or refund anticipation checks are
  290  transacted.
  291         (8)INTEREST RATE CAP FOR NONBANK REFUND ANTICIPATION
  292  LOANS.—
  293         (a)A person may not make or facilitate a refund
  294  anticipation loan for which the refund anticipation loan
  295  interest rate is greater than the loan rate authorized under s.
  296  687.03. The refund anticipation loan interest rate shall be
  297  calculated as set forth in paragraph (2)(i). Any refund
  298  anticipation loan for which the loan interest rate exceeds the
  299  amount allowed under s. 687.03, Florida Statutes, is void ab
  300  initio.
  301         (b)This subsection does not apply to persons facilitating
  302  for or doing business as a bank, thrift association, savings
  303  association, or credit union subject to federal laws that
  304  preempt the prohibition set forth in paragraph (a).
  305         (9)ADVERTISING AND MARKETING.—
  306         (a)A facilitator may not market or advertise a refund
  307  anticipation loan without including the following statement
  308  verbatim: “[...Name of product...] is a loan. You will usually
  309  receive get your refund in 8 to 15 days without a loan or extra
  310  fees if you use e-file and direct deposit.” For print
  311  advertisements, the statement must be printed in type size one
  312  half as large as the largest type size in the advertisement. For
  313  radio and television advertisements, this statement must receive
  314  at least 7 seconds of airtime.
  315         (b)A facilitator may not market or advertise a refund
  316  anticipation check without including the following statement
  317  verbatim: “The [...name of product...] costs [...fee for refund
  318  anticipation check...]. You will usually receive your refund in
  319  the same amount of time without this fee if you use e-file and
  320  direct deposit.” For print advertisements, the statement must be
  321  printed in type size one-half as large as the largest type size
  322  in the advertisement. For radio and television advertisements,
  323  this statement must receive at least 7 seconds of airtime.
  324         (10)REMEDIES.
  325         (a)Any violation of:
  326         1.Any state law prohibiting unfair or deceptive acts or
  327  practices by a facilitator or creditor constitutes a violation
  328  of this section.
  329         2.The federal Fair Debt Collection Practices Act, 15
  330  U.S.C. s. 1692 et seq., by a facilitator or creditor constitutes
  331  a violation of this section.
  332         3.This section constitutes an unfair or deceptive act or
  333  practice.
  334         (b)A facilitator or creditor who fails to comply with any
  335  provision of this section is liable to the consumer for:
  336         1.Actual and consequential damages;
  337         2.Statutory damages of $2,500, to be adjusted annually to
  338  reflect changes in the Consumer Price Index, or three times the
  339  amount of the refund anticipation loan fee or other unauthorized
  340  charge, whichever is greater; and
  341         3.Reasonable attorney's fees and costs.
  342         (c)Any person may sue for injunctive or other appropriate
  343  equitable relief to enforce this section.
  344         (d)Any consumer may bring a class action suit to enforce
  345  this section. In such class action, a facilitator or creditor
  346  who fails to comply with any provision of this section is liable
  347  to each class member as provided in this subsection.
  348         (e)The remedies provided in this subsection are cumulative
  349  and do not abrogate any other relief available under state or
  350  federal law.
  351         Section 2. This act shall take effect July 1, 2009.