_h0311_

HB 311

1	A bill to be entitled
2	An act relating to debt settlement services; creating part
3	V of ch. 817, F.S.; providing a short title; defining
4	terms; providing exemptions from the application of the
5	part; requiring that a person be licensed if he or she
6	provides or offers to provide debt settlement services to
7	a client who resides in this state; providing for a
8	license application and requiring a fee and proof of an
9	insurance policy or surety bond; requiring the
10	fingerprinting and background screening of licensees and
11	certain personnel of the licensees' businesses; requiring
12	certain persons to pay the costs of fingerprint
13	processing; requiring an applicant or licensee to notify
14	the Office of Financial Regulation of any change of the
15	application information within a specified time; requiring
16	the office to publicize certain information on its
17	website; providing procedures for the approval or denial
18	of initial applications for debt settlement advisor
19	licenses; setting forth grounds for which the office may
20	deny an application; authorizing an administrative
21	proceeding upon denial of an application; requiring an
22	annual license period; providing for expiration of
23	licenses; specifying procedures for renewal of debt
24	settlement advisor licenses; authorizing an administrative
25	proceeding upon denial of a license renewal; authorizing
26	certain licensed activity pending the outcome of an
27	administrative proceeding; requiring debt settlement
28	advisors to act in good faith and provide certain customer
29	services; requiring debt settlement advisors to provide
30	certain documents to prospective clients before signing
31	debt settlement services agreements; authorizing debt
32	settlement advisors to provide certain communications by
33	electronic means in compliance with federal law;
34	specifying requirements for the format and contents of
35	debt settlement services agreements; authorizing clients
36	to cancel such agreements within a specified period;
37	specifying the contents of the cancellation form;
38	requiring debt settlement providers to furnish certain
39	documents in English and provide translations under
40	certain circumstances; limiting the fees that debt
41	settlement advisors may charge; prohibiting debt
42	settlement advisors from soliciting voluntary
43	contributions; authorizing clients to void debt settlement
44	services agreements and recover fees under certain
45	circumstances; authorizing debt settlement advisors to
46	terminate such agreements under certain circumstances;
47	requiring debt settlement advisors to provide clients with
48	reports containing specified information under certain
49	circumstances and keep such records for a specified
50	period; prohibiting debt settlement advisors from engaging
51	in certain acts and practices; prohibiting deceptive
52	advertisements; requiring debt settlement advisors to
53	establish internal complaint processes; specifying the
54	powers of the Office of Financial Regulation to administer
55	the part; authorizing the office to issue subpoenas;
56	requiring licensees to keep certain records for a
57	specified period and submit such records for examination
58	by the office; authorizing the office to impose certain
59	fees and charges; authorizing the Financial Services
60	Commission to adopt rules; providing administrative
61	remedies for violations of the part; authorizing the
62	office to impose fines and civil penalties; authorizing
63	the suspension, revocation, or nonrenewal of debt
64	settlement advisor licenses under certain circumstances;
65	authorizing an administrative proceeding upon the
66	suspension, revocation, or nonrenewal of a license;
67	authorizing civil actions for enforcement of the part;
68	providing for the award of attorney's fees; declaring that
69	violations of the part are deceptive and unfair trade
70	practices; specifying that the part does not preempt other
71	consumer protection laws; providing time limitations for
72	commencing civil actions; providing for the part's
73	application in relation to the Electronic Signatures in
74	Global and National Commerce Act; providing for
75	severability; providing an effective date.
76
77	Be It Enacted by the Legislature of the State of Florida:
78
79	Section 1. Part V of chapter 817, Florida Statutes,
80	consisting of sections 817.901, 817.903, 817.905, 817.907,
81	817.909, 817.911, 817.913, 817.915, 817.917, 817.919, 817.921,
82	817.923, 817.925, 817.927, 817.929, 817.931, 817.933, 817.935,
83	817.937, 817.939, 817.941, 817.943, 817.945, 817.947, 817.949,
84	817.951, 817.953, and 817.955, is created to read:
85	PART V
86	DEBT SETTLEMENT SERVICES
87	817.901 Short title.--This part may be cited as the "Debt
88	Settlement Services Act."
89	817.903 Definitions.--As used in this part, the term:
90	(1) "Agreement" means an agreement between a debt
91	settlement advisor and a client for the performance of debt
92	settlement services.
93	(2) "Bank" means a financial institution, including, but
94	not limited to, a commercial bank, savings bank, savings and
95	loan association, credit union, mortgage bank, or trust company,
96	which is engaged in the business of banking, chartered under
97	federal or state law, and regulated by a federal or state
98	banking regulatory authority.
99	(3) "Client" means a person who enters into an agreement
100	with a debt settlement advisor for debt settlement services.
101	(4) "Commission" means the Financial Services Commission.
102	(5) "Concession" means consent to repay a debt on terms
103	more favorable to a client than the terms of the original
104	contract between the client and his or her creditor.
105	(6) "Control person" means an individual, partnership,
106	corporation, trust, or other organization that possesses the
107	power, directly or indirectly, to direct the management or
108	policies of a debt settlement advisor's business, whether
109	through ownership of securities, by contract, or otherwise. A
110	person is presumed to control a debt settlement advisor's
111	business if the person:
112	(a) Is a director, general partner, or officer exercising
113	executive responsibility or having similar status or functions;
114	(b) Directly or indirectly may vote 10 percent or more of
115	a class of voting securities or sell or direct the sale of 10
116	percent or more of a class of voting securities; or
117	(c) In the case of a partnership, may receive upon
118	dissolution or has contributed 10 percent or more of the
119	capital.
120	(7) "Debt settlement advisor" or "licensee" means a person
121	licensed under this part to provide debt settlement services to
122	a client. The term includes an employee or agent of a debt
123	settlement advisor.
124	(8) "Debt settlement services" means services provided by
125	a debt settlement advisor who acts as an intermediary between a
126	client and one or more unsecured creditors of the client for
127	purposes of obtaining favorable concessions for the client. The
128	term does not include the receipt of money from a client with
129	the intent of distributing the money to the client's creditors.
130	The term also does not include:
131	(a) Legal services provided by an attorney licensed to
132	practice law in this state;
133	(b) Accounting services provided by a certified public
134	accountant licensed to provide accounting services in this
135	state; or
136	(c) Financial planning services provided by a member of a
137	financial planning profession.
138	(9) "Federal act" means the federal Electronic Signatures
139	in Global and National Commerce Act, 15 U.S.C. ss. 7001 et seq.,
140	as amended.
141	(10) "Good faith" means honesty in fact and the observance
142	of reasonable standards of fair dealing.
143	(11) "Insolvent" means:
144	(a) Having generally ceased to pay debts in the ordinary
145	course of business other than as a result of a good faith
146	dispute;
147	(b) Being unable to pay debts as they become due; or
148	(c) Being insolvent within the meaning of the federal
149	bankruptcy law, 11 U.S.C. ss. 101 et seq., as amended.
150	(12) "Office" means the Office of Financial Regulation.
151	(13) "Principal amount of a debt" means the amount of debt
152	possessed by the client at the time he or she executes an
153	agreement with a debt settlement advisor and before concessions
154	are made by the client's creditors.
155	(14) "Program" or "debt settlement program" means a
156	process whereby a debt settlement advisor furnishes a crafted
157	debt settlement plan to a client and negotiates on behalf of the
158	client and, after an agreement, the client makes payments
159	directly to his or her creditors.
160	(15) "Record" means information that is inscribed on a
161	tangible medium or stored in an electronic format or other
162	medium and is retrievable in perceivable form.
163	817.905 Exemptions.--This part does not apply to:
164	(1) A person who provides debt settlement services to a
165	client but does not receive compensation for such services.
166	(2) A judicial officer, a person acting under an order of
167	a court or an administrative agency, or an assignee for the
168	benefit of creditors.
169	(3) A bank or its agent.
170	(4) A title insurer, escrow company, or other entity that
171	provides bill-paying services if the debt settlement services
172	are incidental to the bill-paying services.
173	817.907 Debt settlement advisor license.--
174	(1)(a) A person must be licensed under this part if he or
175	she provides or offers to provide debt settlement services to a
176	client who resides in this state.
177	(b) A person seeking a debt settlement advisor license
178	must apply to the office in the format prescribed by commission
179	rule. An application must include:
180	1. The applicant's name, principal business address and
181	telephone number, and every e-mail address and Internet website
182	address used by the applicant.
183	2. The name under which the applicant will conduct
184	business.
185	3. The address of each location in this state, other than
186	the applicant's principal business address, at which the
187	applicant will provide debt settlement services, or a statement
188	that the applicant will provide debt settlement services only at
189	the principal business address.
190	4. If the applicant is a business entity, the name and
191	home address of each officer, director, and other control person
192	of the business entity.
193	5. A statement describing, to the extent it is known or
194	should be known by the applicant, any civil or criminal
195	judgments related to financial fraud or misuse, and any
196	administrative or enforcement actions relating to financial
197	fraud or misuse, by a governmental agency in any jurisdiction
198	against the applicant or an officer, director, owner, or other
199	control person, or an employee or agent, of the applicant's
200	business.
201	6. A copy of each debt settlement services agreement form
202	that the applicant will use in providing services to clients.
203	7. The schedule of fees and charges that the applicant
204	intends to charge a client for debt settlement services
205	rendered.
206	8. A copy of the financial analysis or budget form that
207	the applicant intends to use for reviewing a client's financial
208	condition.
209	9. A description of any ownership interest of 10 percent
210	or more by a director, owner, or other control person, or by an
211	employee, of the applicant's business in:
212	a. Any entity that provides products or services to the
213	applicant or any client of the applicant's debt settlement
214	services; or
215	b. Another control person of the applicant's business.
216	10. Evidence that the applicant has a registered agent in
217	this state of record with the Department of State.
218	11. Any other information that the office reasonably
219	requires to perform the duties of the office under s. 817.909.
220	(c) An application must contain a statement informing the
221	applicant that a false or dishonest answer to any question in
222	the application may be grounds for denial or subsequent
223	suspension or revocation of the applicant's license.
224	(2) An applicant for a debt settlement advisor license
225	must remit to the office a nonrefundable license fee established
226	by commission rule not to exceed $350 and submit proof that:
227	(a) The applicant is covered by a minimum insurance policy
228	in an amount specified by commission rule; or
229	(b) In lieu of an aggregate umbrella insurance policy, the
230	applicant filed a surety bond with the office, in a form
231	approved by commission rule, for a term of not less than the
232	expiration date of the license. The bond must be in an amount of
233	at least $10,000. However, the office may demand that an
234	applicant file a bond of a larger amount if the office
235	determines that the financial condition and business experience
236	of the debt settlement advisor, the history of the debt
237	settlement advisor in performing debt settlement services, and
238	the risk to clients justify a larger surety bond. The office may
239	not require a surety bond greater than $50,000. The surety bond
240	must be in favor of the office for the benefit of any clients in
241	this state who suffer loss arising out of debt settlement
242	services from the debt settlement advisor.
243	(3) Each applicant and control person of the applicant's
244	business must submit fingerprints in accordance with commission
245	rule.
246	(a) The office may require that fingerprints be submitted
247	to the office or a vendor acting on behalf of the office.
248	(b) A state criminal history background screening must be
249	conducted through the Department of Law Enforcement and a
250	federal criminal history background screening must be conducted
251	through the Federal Bureau of Investigation. The office is
252	responsible for reviewing the results of the state and federal
253	criminal history checks and determining whether the applicant
254	meets licensure requirements.
255	(c) The office may contract with third-party vendors that
256	provide live scan fingerprinting in lieu of a paper fingerprint
257	card.
258	(d) All fingerprints submitted to the Department of Law
259	Enforcement shall be submitted electronically and shall be
260	entered into the statewide automated fingerprint identification
261	system established in s. 943.05(2)(b) and shall be available for
262	use in accordance with s. 943.05(2)(g) and (h). The office shall
263	participate in this process by payment of an annual fee to the
264	Department of Law Enforcement and by informing the Department of
265	Law Enforcement of any person whose fingerprints should no
266	longer be retained.
267	(e) The costs of fingerprint processing, including the
268	costs of retaining fingerprints, shall be borne by the person
269	subject to the background screening.
270	(4) An applicant or licensed debt settlement advisor shall
271	notify the office whenever there is a change of the information
272	specified in this section or s. 817.911 within 30 days after the
273	change.
274	(5) The office shall maintain and publicize on its
275	Internet website the names and addresses of all licensed debt
276	settlement advisors in this state.
277	817.909 Issuance or denial of licenses.--
278	(1) An application is considered received for purposes of
279	s. 120.60 upon receipt of a completed application as prescribed
280	by commission rule, the nonrefundable license fee established
281	pursuant to s. 817.907(2), and any other fee prescribed by law.
282	(2) The office shall issue an initial license to a debt
283	settlement advisor who complies with s. 817.907. The office may
284	deny an application for an initial debt settlement advisor
285	license if:
286	(a) The application contains information that is
287	materially erroneous or incomplete;
288	(b) An officer, director, owner, or other control person
289	of the applicant's business has been convicted of a crime or has
290	had a civil judgment entered against him or her involving
291	dishonesty or the violation of state or federal securities laws;
292	(c) The application is not accompanied by the required
293	fees established by the office; or
294	(d) There is reasonable evidence that the applicant will
295	not operate as a debt settlement advisor in a lawful, honest,
296	and fair manner.
297	(3) Upon denial of an initial application for a debt
298	settlement advisor license, the applicant may request an
299	administrative proceeding on the denial pursuant to chapter 120.
300	(4) The commission shall establish by rule an annual
301	license period. A debt settlement advisor license expires at the
302	end of the license period for which the license is issued.
303	817.911 License renewal.--
304	(1) A debt settlement advisor must annually renew his or
305	her license to provide debt settlement services.
306	(2) A person seeking licensure as a debt settlement
307	advisor must apply to the office in the format prescribed by
308	commission rule. A renewal application must:
309	(a) Be filed at least 30 days, but no more than 60 days,
310	before the current license expires.
311	(b) Be accompanied by a nonrefundable renewal fee
312	established by commission rule not to exceed the initial license
313	fee established pursuant to s. 817.907(2) and the annual costs
314	of fingerprint processing pursuant to s. 817.907(3)(d) and (e).
315	(c) Disclose any changes in the information contained in
316	the applicant's initial application for a license or in its
317	immediately previous license renewal application, as
318	appropriate.
319	(d) Provide any other information that the office
320	reasonably requires to perform its duties under this section.
321	(3) The office shall renew the license of a debt
322	settlement advisor who complies with this section. The office
323	may deny a renewal application for any reason authorized in s.
324	817.909(2) for denial of an initial application.
325	(4) If a debt settlement advisor timely files a complete
326	application for renewal of his or her license, the license
327	remains in effect until the office notifies the applicant, in
328	writing, whether the application is approved or denied. If the
329	office denies a renewal application, the written notice to the
330	debt settlement advisor must describe the reasons for the
331	denial.
332	(5)(a) Upon denial of an application to renew a debt
333	settlement advisor license, the licensee may request an
334	administrative proceeding on the denial pursuant to chapter 120.
335	(b) If the office denies a renewal application and the
336	applicant requests an administrative proceeding under chapter
337	120, the debt settlement advisor may continue to provide debt
338	settlement services to a client with whom the advisor has an
339	agreement. If the denial of the license is affirmed, the debt
340	settlement advisor must discontinue providing debt settlement
341	services to clients and transfer the clients' agreements to
342	other licensed debt settlement advisors.
343	817.913 Requirement of good faith.--A debt settlement
344	advisor must act in good faith in all matters under this part.
345	817.915 Customer service.--A debt settlement advisor shall
346	maintain a toll-free telephone service, staffed at a level that
347	reasonably permits a client to speak to a customer service
348	representative during ordinary business hours.
349	817.917 Prerequisites for providing debt settlement
350	services.--
351	(1) Before a debt settlement advisor may provide debt
352	settlement services to a potential client, the debt settlement
353	advisor must give the potential client an itemized list of goods
354	and services available from the debt settlement advisor and the
355	charges for each service rendered. The list and charges must be
356	clear and conspicuous.
357	(2) A debt settlement advisor may not furnish debt
358	settlement services unless he or she prepares a financial
359	analysis for the potential client.
360	(3) Before signing an agreement with a potential client, a
361	debt settlement advisor must:
362	(a) Provide the potential client with a copy of the
363	financial analysis and a written notice that identifies the debt
364	settlement advisor and acknowledges that a potential client may
365	keep the financial analysis even if he or she chooses not to
366	become a client of the debt settlement advisor.
367	(b) Inform the potential client of the availability, at
368	his or her option, of assistance by a toll-free telephone
369	service or in person to discuss the financial analysis required
370	in subsection (2).
371	(c) Inform the potential client that:
372	1. Not all debt settlement programs are suitable for all
373	clients.
374	2. Participation in a debt settlement program may
375	adversely affect a client's credit rating or credit scores.
376	3. Nonpayment of debt may lead creditors to increase
377	finance and other charges or undertake collection activity,
378	including litigation.
379	4. Unless a client is insolvent and a creditor settles for
380	less than the full amount of the debt, participation in the
381	program may result in the creation of taxable income to the
382	client, even though the client does not receive any money.
383	5. Specific results cannot be predicted or guaranteed and
384	the debt settlement advisor cannot force negotiations or
385	settlements with creditors who do not wish to participate in
386	negotiations, but will nevertheless advocate on behalf of the
387	client.
388	6. The debt settlement program requires that a client meet
389	a certain savings goal in order to maximize settlement results.
390	7. The debt settlement advisor may provide accounting or
391	legal advice to a client only if the debt settlement advisor is
392	licensed to practice law in this state.
393	8. The debt settlement advisor is a client's advocate and
394	may not receive compensation from creditors, banks, or third-
395	party collection agencies.
396	9. The debt settlement advisor may not make monthly
397	payments to a client's creditors.
398	817.919 Communication by electronic or other means.--
399	(1) A debt settlement advisor may satisfy the requirements
400	of s. 817.917, s. 817.923, or s. 817.935 through the Internet or
401	other electronic means if the debt settlement advisor obtains
402	the client's consent in the manner provided by s. 101(c)(1) of
403	the federal act.
404	(2) The disclosures and materials required by ss. 817.917,
405	817.923, and 817.935 shall be presented in a format that can be
406	accurately reproduced for later reference.
407	(3) For disclosure through an Internet website, disclosure
408	of the information required by s. 817.917 must appear on one or
409	more screens that contain only the information required, and the
410	client must be able to see the information on the screens before
411	agreeing to participate in the program.
412	(4) At the time of providing the materials or agreement
413	required in s. 817.917, s. 817.923, or s. 817.935, a debt
414	settlement advisor shall inform the client that upon electronic,
415	telephonic, or written request, the advisor shall send the
416	client a written copy of the materials and shall comply with a
417	request as provided in subsection (7).
418	(5) If a debt settlement advisor is requested, within 90
419	days after a program is completed or terminated, to send a
420	written copy of the materials required by s. 817.917, s.
421	817.923, or s. 817.935, the debt settlement advisor shall send
422	the materials at no charge within 3 business days after receipt
423	of the request. However, the debt settlement advisor need not
424	comply with a request more than once per calendar month or
425	comply with a request that the advisor reasonably believes is
426	made for purposes of harassment. If a request is made more than
427	90 days after a program is completed or terminated, the debt
428	settlement advisor shall send a written copy of the materials
429	requested within 30 days.
430	(6) If a debt settlement advisor maintains an Internet
431	website, the debt settlement advisor shall disclose on the home
432	page of the website or on a page that is clearly and
433	conspicuously connected to the home page by a link that clearly
434	reveals its contents:
435	(a) The name or names under which the debt settlement
436	advisor does business.
437	(b) The principal business address, telephone number, and
438	e-mail address, if any.
439	(7) If a client who previously consents to electronic
440	communication in the manner provided by s. 101(c)(1) of the
441	federal act withdraws the consent as provided in the federal
442	act, a debt settlement advisor may terminate the agreement with
443	the client. If the debt settlement advisor wishes to terminate
444	the agreement, he or she shall notify the client and, unless the
445	client consents to electronic communication in the manner
446	provided in s. 101(c)(1) of the federal act within 30 days after
447	receiving the notice, the agreement is terminated.
448	817.921 Form and contents of a debt settlement services
449	agreement.--
450	(1) A debt settlement services agreement must be in
451	writing, dated and signed by the client and the debt settlement
452	advisor, and delivered to the client immediately upon signing
453	the agreement. The agreement must include:
454	(a) The name and home address of the client.
455	(b) The name, business address, and telephone number of
456	the debt settlement advisor.
457	(c) The debt settlement services to be provided.
458	(d) The amount, or method of determining the amount, of
459	all fees, individually itemized, to be paid by the client.
460	(e) The process by which the debt settlement advisor will
461	comply with his or her obligations under s. 817.935.
462	(f) A statement that the client may cancel the agreement
463	as provided in s. 817.923.
464	(g) A disclosure that the client may contact the office
465	with any questions or complaints regarding the debt settlement
466	advisor.
467	(h) The address, telephone number, and Internet address or
468	website of the office.
469	(2) For the purposes of subsection (1), delivery of an
470	electronic record occurs when it is made available in a format
471	that the client may retrieve, save, and print, and when the
472	client is notified that the record is available.
473	(3) If the office supplies the debt settlement advisor
474	with any information required under paragraph (1)(h), the debt
475	settlement advisor may comply with paragraph (1)(h) by
476	disclosing the information supplied by the office.
477	(4) An agreement must state that the client has a right to
478	terminate the agreement at any time by giving the debt
479	settlement advisor written or electronic notice, in which event
480	all powers of attorney granted by the client to the debt
481	settlement advisor are revoked and void.
482	(5) An agreement may confer on a debt settlement advisor a
483	power of attorney to settle a client's debt for no more than 50
484	percent of the outstanding amount of the debt and may confer a
485	power of attorney to negotiate with the client's creditors on
486	behalf of the client. The debt settlement advisor must obtain
487	the consent of the client before accepting a concession
488	settlement of more than 50 percent of the outstanding amount of
489	the debt.
490	(6) A debt settlement services agreement may not:
491	(a) Apply to the agreement any law of any jurisdiction
492	other than the United States and this state.
493	(b) Except as permitted by the Federal Arbitration Act, 9
494	U.S.C. s. 2, as amended, or the Florida Arbitration Code in
495	chapter 682, contain any modifications or limitations to
496	otherwise available forums or procedural rights, including the
497	right to trial by jury, which are generally available to the
498	client under law and under this part;
499	(c) Contain restrictions on a client's remedies under this
500	part or any other law.
501	(d) Contain any provision that:
502	1. Limits or releases the liability of any person for not
503	performing the agreement or for violating this part.
504	2. Indemnifies any person for liability arising under the
505	agreement or this part.
506	817.923 Cancellation of an agreement; waiver.--
507	(1) A client may cancel an agreement before midnight of
508	the 3rd business day after the client executes the agreement.
509	However, if a debt settlement services agreement does not comply
510	with subsection (2), s. 817.921, or s. 817.937, the client may
511	cancel the agreement within 30 days after the client executes
512	the agreement. To exercise the right of cancellation, the client
513	must give notice in a record to the debt settlement advisor.
514	Notice by mail is given when mailed.
515	(2) An agreement must be accompanied by a form that
516	contains a notice of right of cancellation heading in bold-faced
517	type underlined by bold black lines. The notice must be in
518	substantially the following form:
519
520	NOTICE OF RIGHT OF CANCELLATION
521
522	You may cancel this agreement, without any penalty or
523	obligation, at any time before midnight of the 3rd business
524	day after the day you sign the agreement or otherwise agree
525	to it by electronic communication.
526
527	To cancel this agreement during this period, send an e-
528	mail to ...(e-mail address of debt settlement advisor)...
529	or mail or deliver a signed, dated copy of this notice, or
530	any other written notice to ...(name of debt settlement
531	advisor)... at ...(address of debt settlement advisor)...
532	before midnight of the 3rd business day after you executed
533	the agreement.
534
535	If you cancel this agreement within the 3-day period, we
536	will refund all money you have already paid us.
537
538	I cancel this agreement.
539
540	................
541	Print your name
542	................
543	Signature
544	................
545	Date
546
547	817.925 Required language; rules.--Unless provided
548	otherwise by commission rule, the disclosures and documents
549	required by this part must be in English. If a debt settlement
550	advisor communicates with a client primarily in a language other
551	than English, the debt settlement advisor must furnish a
552	translation of the disclosures and documents required by this
553	part.
554	817.927 Fees and other charges.--
555	(1) A debt settlement advisor may not impose, directly or
556	indirectly, a fee or other charge on a client or receive money
557	from or on behalf of a client for debt settlement services
558	except as permitted by this section.
559	(2) The total aggregate fees charged by a debt settlement
560	advisor may not exceed 20 percent of the principal amount of the
561	debt.
562	(3) In addition to the fees authorized in subsection (2),
563	if a client's payment to a debt settlement advisor is not
564	honored, the debt settlement advisor may impose a service fee
565	not to exceed the service fees authorized under s. 832.08(5) or
566	5 percent of the face amount of the check, draft, or order,
567	whichever is greater, for collection of the dishonored check,
568	draft, or other order for the payment of money.
569	(4) A debt settlement advisor may not impose charges or
570	receive payment for debt settlement services until the debt
571	settlement advisor and the client sign a debt settlement
572	services agreement.
573	817.929 Voluntary contributions.--A debt settlement
574	advisor may not solicit a voluntary contribution from a client
575	for any debt settlement services provided to the client.
576	817.931 Voidable agreements.--
577	(1) If a debt settlement advisor imposes a fee or other
578	charge or receives money or other payments not authorized by s.
579	817.927, the client may void the agreement and recover the fees
580	or charges as provided in s. 817.949.
581	(2) If a debt settlement advisor is not licensed under
582	this part at the time a client approves the debt settlement
583	services agreement, the agreement is voidable by the client.
584	(3) If a client voids an agreement pursuant to this
585	section, the debt settlement advisor does not have a claim
586	against the client for breach of contract or for restitution.
587	817.933 Termination of agreements.--If a client fails to
588	make payments required by the agreement for 60 days, a debt
589	settlement advisor may terminate the agreement.
590	817.935 Periodic reports; retention of records.--
591	(1) A debt settlement advisor shall provide the accounting
592	required by subsection (2) in the following cases:
593	(a) After each settlement of a debt with a creditor on
594	behalf of a client.
595	(b) Within 5 business days after receiving a request by a
596	client. However, the debt settlement advisor need not comply
597	with more than one request from the client in any calendar
598	month.
599	(c) Upon cancelling or terminating an agreement.
600	(2) If a creditor agrees to accept as payment in full an
601	amount less than the principal amount of the debt owed by the
602	client, the debt settlement advisor shall document, in a record,
603	an accounting of all of the following:
604	(a) The amount of the client's debt when the creditor
605	agrees to a settlement.
606	(b) The amount of the debt that the creditor accepts as
607	settlement in full.
608	(c) Any other terms of the settlement.
609	(d) For a debt settlement advisor who uses a fee agreement
610	that calculates any portion of the fee based on a percentage of
611	savings that the client realizes from a settled debt, the
612	calculation of the fee.
613	(3) A debt settlement advisor must maintain records for
614	each client for whom the advisor provides debt settlement
615	services for 4 years after the most recent date that the advisor
616	received payment from the client. The debt settlement advisor
617	shall produce a copy of the records for the client within a
618	reasonable time after a request is received. The debt settlement
619	advisor may use electronic or other means for storing records.
620	817.937 Prohibited acts and practices of debt settlement
621	advisors.--
622	(1) A debt settlement advisor may not engage in any of the
623	following practices:
624	(a) Settle a debt on behalf of a client for more than 50
625	percent of the amount of the debt owed to a creditor, unless the
626	client explicitly consents to the settlement after the creditor
627	agrees to the settlement.
628	(b) Hold a power of attorney that authorizes a debt
629	settlement advisor to settle a debt, unless the power of
630	attorney expressly limits the debt settlement advisor's
631	authority to settle debts for not more than 50 percent of the
632	amount of the debt owed to a creditor.
633	(c) Exercise or attempt to exercise a power of attorney
634	after a client terminates an agreement.
635	(d) Initiate a transfer from a client's bank account to
636	another person unless the transfer is:
637	1. A return of money to the client;
638	2. Before termination of an agreement, payment of a fee
639	properly authorized by the agreement and this part;
640	3. A payment to a creditor to fund a negotiated settlement
641	authorized by this part; or
642	4. A payment to a creditor to fund a negotiated settlement
643	of which both the settlement and transfer of money are
644	authorized by the client.
645	(e) Structure a settlement that results in a negative
646	amortization of any of the client's debts.
647	(f) Settle a debt or lead a client to believe that a
648	payment to a creditor is in settlement of a debt to the creditor
649	unless, at the time of settlement, the client receives a
650	certification or confirmation by the creditor that the payment
651	is in full settlement of the debt or is part of a payment plan
652	that is in full settlement of the debt.
653	(g) Make a representation that:
654	1. The debt settlement advisor will furnish money to pay
655	bills or prevent attachments;
656	2. Payment of a certain amount of money guarantees
657	satisfaction of a certain amount or range of indebtedness;
658	3. Participation in a program may prevent litigation,
659	garnishment, attachment, repossession, foreclosure, eviction, or
660	loss of employment;
661	4. The debt settlement advisor is authorized or competent
662	to furnish legal advice or perform legal services, unless such
663	advice or services are provided by a licensed attorney working
664	with the debt settlement advisor; or
665	5. The debt settlement advisor is a not-for-profit entity,
666	unless the debt settlement advisor is organized and properly
667	operating as a corporation not for profit under chapter 617.
668	(h) Employ deceptive and unfair trade practices, including
669	the knowing omission of any material information.
670	(2) If a debt settlement advisor furnishes debt settlement
671	services to a client, the debt settlement advisor may not,
672	directly or indirectly, engage in any of the following
673	practices:
674	(a) Purchase a debt or obligation of the client.
675	(b) Receive from or on behalf of the client:
676	1. A promissory note or other negotiable instrument other
677	than a check or a demand draft; or
678	2. A postdated check or demand draft.
679	(c) Lend money or provide credit to the client, except as
680	a deferral of a fee payment at no additional expense to the
681	client.
682	(d) Obtain a mortgage or other security interest from any
683	person in connection with the services provided to the client.
684	(e) Except as permitted by federal law, disclose the
685	identity or identifying information of the client or the
686	identity of the client's creditors, except to:
687	1. The office, upon proper demand;
688	2. A creditor of the client, to the extent necessary to
689	secure the cooperation of the creditor in a debt settlement
690	program; or
691	3. The extent necessary to administer the debt settlement
692	program.
693	(f) Except as otherwise provided in s. 817.927, provide
694	the client less than the full benefit of a compromise of a debt
695	arranged by the debt settlement advisor.
696	(g) Furnish legal advice or perform legal services, unless
697	the person furnishing the advice to, or performing the services
698	for, the client is licensed to practice law.
699	(h) Advise clients to stop payment on any of the accounts
700	being handled by the debt settlement advisor.
701	817.939 Advertising.--A debt settlement advisor that
702	advertises debt settlement services may not make statements that
703	are misleading or deceptive, and the advertisements may not
704	conflict with the information specified in s. 817.917.
705	817.941 Internal complaint policy.--Each debt settlement
706	advisor shall establish a formal internal complaint policy that
707	creates a process for the debt settlement advisor to receive,
708	review, and address or resolve formal complaints internally. The
709	availability of this process shall be communicated in writing to
710	clients enrolled in the debt settlement advisor's debt
711	settlement program. This policy must include a provision that
712	all clients who file a formal complaint will receive a response
713	from the debt settlement advisor within 30 days after the debt
714	settlement advisor's receipt of the complaint. The debt
715	settlement advisor shall maintain a file that documents each
716	formal complaint and the handling and resolution of each
717	complaint, and the debt settlement advisor shall disclose the
718	file to the office upon request.
719	817.943 Powers of administration; rules.--
720	(1) The office may act on its own initiative or in
721	response to a complaint. The office may seek voluntary
722	compliance with this part or initiate enforcement actions as
723	provided in this part.
724	(2) The office may investigate and examine, by subpoena or
725	otherwise, the activities, books, accounts, and records of a
726	debt settlement advisor or any person to whom a debt settlement
727	advisor delegates his or her obligations under an agreement or
728	this part, in order to determine compliance with this part.
729	(3) Each licensee and control person of the licensee's
730	business must maintain all books, accounts, documents, files,
731	and information necessary for determining compliance with this
732	part and commission rules adopted under this part for 5 years.
733	(a) The records required under this part may be maintained
734	by the licensee at any location identified in its license
735	application or by amendment to the application. The licensee
736	must make such records available to the office for examination
737	and investigation in this state within 10 days after receipt of
738	a written request.
739	(b) The original of any record of a licensee includes a
740	record stored or transmitted by electronic, computerized,
741	mechanized, or other information storage or retrieval or
742	transmission system or device that can generate, regenerate, or
743	transmit the precise data or other information comprising the
744	record. An original also includes the visible data or other
745	information so generated, regenerated, or transmitted if it is
746	legible or can be made legible by enlargement or other process.
747	(4) In support of its enforcement powers, the office may:
748	(a) Charge the debt settlement advisor the reasonable
749	expenses necessarily incurred to conduct the examination.
750	(b) Require or permit the debt settlement advisor to file
751	a statement under oath as to all the facts and circumstances of
752	the matter to be investigated.
753	(c) Enter into a cooperative arrangement with any federal
754	or state agency having authority over debt settlement advisors
755	and exchange with any of those agencies information about a debt
756	settlement advisor, including information obtained during an
757	examination of the debt settlement advisor.
758	(d) Establish reasonable fees to be paid by a debt
759	settlement advisor for the expense of administering this
760	section.
761	(5) The commission may adopt rules to administer this
762	part.
763	817.945 Administrative remedies.--
764	(1) The office may enforce this part by:
765	(a) Ordering a debt settlement advisor, director, officer,
766	or other control person of the debt settlement advisor's
767	business, or an agent thereof, to cease and desist from any
768	violations of this part.
769	(b) Ordering a debt settlement advisor who violates this
770	part to correct the violation, including making restitution to
771	the person aggrieved by the violation.
772	(c) Imposing on a debt settlement advisor a civil penalty
773	not to exceed $1,000 per violation.
774	(d) Intervening in an action brought under s. 817.949.
775	(e) Initiating an enforcement action in circuit court to
776	enforce an order or to obtain restitution, an injunction, or
777	another equitable relief.
778	(2) The office may impose a fine not to exceed $1,000 per
779	day for each day that a person engages in debt settlement
780	services without a license.
781	(3) If a person knowingly and willfully violates, or
782	authorizes, directs, or aids another to violate, a final order
783	issued under subsection (1), the office may impose an additional
784	civil penalty not to exceed $1,000 per violation.
785	(4) The office may recover the reasonable costs of
786	enforcing this part, including reasonable attorney's fees.
787	(5) In determining the amount of a civil penalty to be
788	imposed under subsection (1) or subsection (2), the office shall
789	consider the seriousness of the violation, the good faith of the
790	violator, any previous violations by the violator, the
791	deleterious effect of the violation on the public, and any other
792	fact relevant to the determination of the civil penalty.
793	817.947 Suspension, revocation, or nonrenewal of
794	license.--
795	(1) The office may suspend, revoke, or deny the renewal of
796	a debt settlement advisor license if:
797	(a) A fact or condition exists that, if it existed when
798	the debt settlement advisor applied for a debt settlement
799	advisor license, the fact or condition would be a reason for
800	denying the license.
801	(b) The debt settlement advisor commits a material
802	violation of this part, a commission rule adopted under this
803	part, or an order of the office issued under this part.
804	(c) The debt settlement advisor is insolvent.
805	(d) The debt settlement advisor or a control person of the
806	debt settlement advisor's business refuses to permit the office
807	to make an examination authorized by this part, failed to comply
808	with s. 817.943(4)(b) within 30 days after request, or made a
809	material misrepresentation or omission in complying with s.
810	817.943(4)(b).
811	(e) The debt settlement advisor does not respond within a
812	reasonable time or in an appropriate manner to communications
813	from the office.
814	(2) A licensee must maintain the insurance coverage or
815	bond at all times in the amount required under s. 817.907(2). If
816	the office determines that the insurance coverage is insecure,
817	deficient in amount, or exhausted in whole or in part, the
818	office may suspend the licensee's debt settlement advisor
819	license, unless or until the licensee presents satisfactory
820	evidence to the office that the coverage or bond is replaced.
821	(3) Upon the suspension, revocation, or nonrenewal of a
822	debt settlement advisor license, the licensee may request an
823	administrative proceeding on the suspension, revocation, or
824	nonrenewal pursuant to chapter 120.
825	817.949 Private enforcement.--
826	(1) If a client voids an agreement pursuant to s. 817.931,
827	the client may recover in a civil action all money paid by or on
828	behalf of the client pursuant to the agreement, in addition to
829	the recovery of reasonable attorney's fees and costs.
830	(2) A client for whom a debt settlement advisor violates
831	this part may recover in a civil action from the debt settlement
832	advisor and any person that caused the violation:
833	(a) Compensatory damages for economic injury caused by the
834	violation.
835	(b) Except as otherwise provided in subsection (3), the
836	amount recoverable under subsection (1) or $1,000, whichever is
837	greater.
838	(c) Reasonable attorney's fees and costs.
839	(3) In addition to the remedy available under subsection
840	(2), if a debt settlement advisor violates a client's rights
841	under s. 817.927, the client may recover in a civil action all
842	money paid by or on behalf of the client pursuant to the
843	agreement, except for the amounts paid to the creditors.
844	(4) A debt settlement advisor is not liable for violating
845	this part if he or she proves that the violation was not
846	intentional and resulted from a good faith error notwithstanding
847	the maintenance of procedures reasonably adapted to avoid the
848	error. If, in connection with a violation, the debt settlement
849	advisor receives more money than authorized by an agreement or
850	this part, the defense provided by this subsection is not
851	available unless the debt settlement advisor refunds the excess
852	money within 3 business days after learning of the violation.
853	817.951 Deceptive and unfair trade practices; effect on
854	other remedies.--
855	(1) A violation of this part is a deceptive and unfair
856	trade practice and constitutes a violation of part II of chapter
857	501.
858	(2) This part is supplemental to, and makes no attempt to
859	preempt, other consumer protection laws that are not
860	inconsistent with this part.
861	817.953 Statute of limitations.--
862	(1) Any enforcement action must be commenced within 4
863	years after the violation occurs.
864	(2) Any private enforcement action must be commenced
865	within 2 years after the latest of:
866	(a) The client's last transmission of money to the debt
867	settlement advisor;
868	(b) The date on which the client discovered or reasonably
869	should have discovered the facts upon which the client's claim
870	is based; or
871	(c) Termination of actions or proceedings by the office
872	for a violation of this part.
873	(3) Any limitation period prescribed in this section is
874	tolled during any period in which the debt settlement advisor
875	materially and willfully misrepresents information required to
876	be disclosed to the client or the office by this part.
877	817.955 Relation to the Electronic Signatures in Global
878	and National Commerce Act.--This part modifies, limits, and
879	supersedes the federal Electronic Signatures in Global and
880	National Commerce Act, 15 U.S.C. ss. 7001 et seq., but does not
881	modify, limit, or supersede s. 101(c) of the act, 15 U.S.C. s.
882	7001(c), or authorize electronic delivery of any of the notices
883	described in s. 103(b) of the act, 15 U.S.C. s. 7003(b).
884	Section 2. If any provision of this act or the application
885	thereof to any person or circumstance is held invalid, the
886	invalidity does not affect other provisions or applications of
887	the act which can be given effect without the invalid provision
888	or application, and to this end the provisions of this act are
889	declared severable.
890	Section 3. This act shall take effect July 1, 2010.

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