HB 7233

1	A bill to be entitled
2	An act relating to consumer debt collection; creating s.
3	559.5556, F.S.; requiring a consumer debt collection
4	agency to maintain certain records; amending s. 559.565,
5	F.S.; increasing the administrative fine imposed against
6	an out-of-state consumer debt collector that fails to
7	register as required; revising provisions relating to
8	authorized activities of the Attorney General; amending s.
9	559.715, F.S.; revising requirements for providing written
10	notice of the assignment of debt; amending s. 559.72,
11	F.S.; revising prohibited acts with respect to consumer
12	debt collection; revising provisions governing violations
13	of communication procedures; amending s. 559.725, F.S.;
14	revising provisions relating to consumer complaints about
15	a consumer collection agency; authorizing the Attorney
16	General to take action against a person for violations
17	involving debt collection; creating s. 559.726, F.S.;
18	providing for the issuance of subpoenas by the Office of
19	Financial Regulation; creating s. 559.727, F.S.;
20	authorizing the office to issue cease and desist orders;
21	amending s. 559.730, F.S.; revising provisions relating to
22	administrative remedies; increasing the maximum penalty;
23	authorizing the Financial Services Commission to adopt
24	rules relating to penalty guidelines; amending s. 559.77,
25	F.S., relating to civil remedies; conforming provisions to
26	federal law; providing an effective date.
27
28	Be It Enacted by the Legislature of the State of Florida:
29
30	Section 1.  Section 559.5556, Florida Statutes, is created
31	to read:
32	559.5556  Maintenance of records.-
33	(1)  Each registered consumer collection agency shall
34	maintain, at its principal place of business designated on the
35	registration, all books, accounts, records, and documents
36	necessary to determine the registrant's compliance with this
37	part.
38	(2)  The office may authorize the maintenance of records at
39	a location other than its principal place of business. The
40	office may require books, accounts, and records to be produced
41	and available at a reasonable and convenient location in this
42	state.
43	(3)  The commission may prescribe by rule the minimum
44	information to be shown in the books, accounts, records, and
45	documents of registrants so that such records enable the office
46	to determine the registrant's compliance with this part.
47	(4)  All books, accounts, records, documents, and receipts
48	of any debt collection transaction must be preserved and kept
49	available for inspection by the office for at least 3 years
50	after the transaction is completed. The commission may prescribe
51	by rule requirements for the destruction of books, accounts,
52	records, and documents retained by the registrant after the
53	completion of the 3 years.
54	Section 2.  Section 559.565, Florida Statutes, is amended
55	to read:
56	559.565  Enforcement action against out-of-state consumer
57	debt collector.- The remedies of this section are cumulative to
58	other sanctions and enforcement provisions of this part for any
59	violation by an out-of-state consumer debt collector, as defined
60	in s. 559.55(8).
61	(1)  An Any out-of-state consumer debt collector who
62	collects or attempts to collect consumer debts in this state
63	without first registering in accordance with this part is shall
64	be subject to an administrative fine of up to $10,000 not to
65	exceed $1,000 together with reasonable attorney fees and court
66	costs in any successful action by the state to collect such
67	fines.
68	(2)  Any person, whether or not exempt from registration
69	under this part, who violates the provisions of s. 559.72 is
70	shall be subject to sanctions in for such violations the same
71	manner as any other consumer debt collector, including
72	imposition of an administrative fine. The registration of a duly
73	registered out-of-state consumer debt collector is shall be
74	subject to revocation or suspension in the same manner as the
75	registration of any other registrant under this part.
76	(3)  In order to effectuate the provisions of this section
77	and enforce the requirements of this part as it relates to out-
78	of-state consumer debt collectors, the Attorney General is
79	expressly authorized to initiate such action on behalf of the
80	state as he or she deems appropriate in any state or federal
81	district court of competent jurisdiction.
82	Section 3.  Section 559.715, Florida Statutes, is amended
83	to read:
84	559.715  Assignment of consumer debts.-This part does not
85	prohibit the assignment, by a creditor, of the right to bill and
86	collect a consumer debt. However, the assignee must give the
87	debtor written notice of such assignment as soon as practical
88	after the assignment is made but at least within 30 days before
89	any action to collect the debt after the assignment. The
90	assignee is a real party in interest and may bring an action in
91	a court of competent jurisdiction to collect a debt that has
92	been assigned to the such assignee and is in default.
93	Section 4.  Section 559.72, Florida Statutes, is amended to
94	read:
95	559.72  Prohibited practices generally.-In collecting
96	consumer debts, no person shall:
97	(1)  Simulate in any manner a law enforcement officer or a
98	representative of any governmental agency.;
99	(2)  Use or threaten force or violence.;
100	(3)  Tell a debtor who disputes a consumer debt that she or
101	he or any person employing her or him will disclose to another,
102	orally or in writing, directly or indirectly, information
103	affecting the debtor's reputation for credit worthiness without
104	also informing the debtor that the existence of the dispute will
105	also be disclosed as required by subsection (6).;
106	(4)  Communicate or threaten to communicate with a debtor's
107	employer before prior to obtaining final judgment against the
108	debtor, unless the debtor gives her or his permission in writing
109	to contact her or his employer or acknowledges in writing the
110	existence of the debt after the debt has been placed for
111	collection. However, but this does shall not prohibit a person
112	from telling the debtor that her or his employer will be
113	contacted if a final judgment is obtained.;
114	(5)  Disclose to a person other than the debtor or her or
115	his family information affecting the debtor's reputation,
116	whether or not for credit worthiness, with knowledge or reason
117	to know that the other person does not have a legitimate
118	business need for the information or that the information is
119	false.;
120	(6)  Disclose information concerning the existence of a
121	debt known to be reasonably disputed by the debtor without
122	disclosing that fact. If a disclosure is made before prior to
123	such reasonable dispute has having been asserted and written
124	notice is received from the debtor that any part of the debt is
125	disputed, and if such dispute is reasonable, the person who made
126	the original disclosure must shall reveal upon the request of
127	the debtor within 30 days the details of the dispute to each
128	person to whom disclosure of the debt without notice of the
129	dispute was made within the preceding 90 days.;
130	(7)  Willfully communicate with the debtor or any member of
131	her or his family with such frequency as can reasonably be
132	expected to harass the debtor or her or his family, or willfully
133	engage in other conduct which can reasonably be expected to
134	abuse or harass the debtor or any member of her or his family.;
135	(8)  Use profane, obscene, vulgar, or willfully abusive
136	language in communicating with the debtor or any member of her
137	or his family.;
138	(9)  Claim, attempt, or threaten to enforce a debt when
139	such person knows that the debt is not legitimate, or assert the
140	existence of some other legal right when such person knows that
141	the right does not exist.;
142	(10)  Use a communication that which simulates in any
143	manner legal or judicial process or that which gives the
144	appearance of being authorized, issued, or approved by a
145	government, governmental agency, or attorney at law, when it is
146	not.;
147	(11)  Communicate with a debtor under the guise of an
148	attorney by using the stationery of an attorney or forms or
149	instruments that which only attorneys are authorized to
150	prepare.;
151	(12)  Orally communicate with a debtor in such a manner
152	that gives as to give the false impression or appearance that
153	such person is or is associated with an attorney.;
154	(13)  Advertise or threaten to advertise for sale any debt
155	as a means to enforce payment except under court order or when
156	acting as an assignee for the benefit of a creditor.;
157	(14)  Publish or post, threaten to publish or post, or
158	cause to be published or posted before the general public
159	individual names or any list of names of debtors, commonly known
160	as a deadbeat list, for the purpose of enforcing or attempting
161	to enforce collection of consumer debts.;
162	(15)  Refuse to provide adequate identification of herself
163	or himself or her or his employer or other entity whom she or he
164	represents if when requested to do so by a debtor from whom she
165	or he is collecting or attempting to collect a consumer debt.;
166	(16)  Mail any communication to a debtor in an envelope or
167	postcard with words typed, written, or printed on the outside of
168	the envelope or postcard calculated to embarrass the debtor. An
169	example of this would be an envelope addressed to "Deadbeat,
170	Jane Doe" or "Deadbeat, John Doe.";
171	(17)  Communicate with the debtor between the hours of 9
172	p.m. and 8 a.m. in the debtor's time zone without the prior
173	consent of the debtor.;
174	(a)  The person may presume that the time a telephone call
175	is received conforms to the local time zone assigned to the area
176	code of the number called, unless the person reasonably believes
177	that the debtor's telephone is located in a different time zone.
178	(b)  If, such as with toll-free numbers, an area code is
179	not assigned to a specific geographic area, the person may
180	presume that the time a telephone call is received conforms to
181	the local time zone of the debtor's last known place of
182	residence, unless the person reasonably believes that the
183	debtor's telephone is located in a different time zone.
184	(18)  Communicate with a debtor if the person knows that
185	the debtor is represented by an attorney with respect to such
186	debt and has knowledge of, or can readily ascertain, such
187	attorney's name and address, unless the debtor's attorney fails
188	to respond within 30 days a reasonable period of time to a
189	communication from the person, unless the debtor's attorney
190	consents to a direct communication with the debtor, or unless
191	the debtor initiates the communication.; or
192	(19)  Cause a charges to be made to any debtor to be
193	charged for communications by concealing concealment of the true
194	purpose of the communication, including collect telephone calls
195	and telegram fees.
196	Section 5.  Section 559.725, Florida Statutes, is amended
197	to read:
198	559.725  Consumer complaints; administrative duties.-
199	(1)  The office Division of Consumer Services of the
200	Department of Financial Services shall receive and maintain
201	serve as the registry for receiving and maintaining records of
202	inquiries, correspondence, and complaints from consumers
203	concerning any and all persons who collect debts, including
204	consumer collection agencies.
205	(2)  The division shall classify complaints by type and
206	identify the number of written complaints against persons
207	collecting or attempting to collect debts in this state,
208	including credit grantors collecting their own debts, debt
209	collectors generally, and, specifically, consumer collection
210	agencies as distinguished from other persons who collect debts
211	such as commercial debt collection agencies regulated under part
212	V of this chapter. The division shall identify the nature and
213	number of various kinds of written complaints, including
214	specifically those alleging violations of s. 559.72.
215	(2)(3)  The office division shall inform and furnish
216	relevant information to the appropriate regulatory body of the
217	state or the Federal Government, or The Florida Bar in the case
218	of attorneys, if a person when any consumer debt collector
219	exempt from registration under this part has been named in a
220	five or more written consumer complaint pursuant to subsection
221	(3) complaints alleging violations of s. 559.72 within a 12-
222	month period. The Attorney General may take action against any
223	person in violation of this part.
224	(4)  The division shall furnish a form to each complainant
225	whose complaint concerns an alleged violation of s. 559.72 by a
226	consumer collection agency. Such form may be filed with the
227	office. The form shall identify the accused consumer collection
228	agency and provide for the complainant's summary of the nature
229	of the alleged violation and facts which allegedly support the
230	complaint. The form shall include a provision for the
231	complainant to state under oath before a notary public that the
232	allegations therein made are true.
233	(3)(5)  The complainant, subject to penalty of perjury as
234	provided in s. 837.06, shall certify on a form approved by the
235	Financial Services Commission a summary of the nature of the
236	alleged violation and the facts that allegedly support the
237	complaint, and shall submit the form to the office. Upon receipt
238	of such sworn complaint, the office shall promptly furnish a
239	copy of the sworn complaint to the accused consumer collection
240	agency.
241	(4)(6)  The office shall investigate sworn complaints by
242	direct written communication with the complainant and the
243	affected consumer collection agency. In addition, the office
244	shall attempt to resolve each sworn complaint and shall record
245	the resolution of such complaints.
246	(7)  Periodically, the office shall identify consumer
247	collection agencies that have unresolved sworn consumer
248	complaints from five or more different consumers within a 12-
249	month period under the provisions of this part.
250	(8)  The office shall issue a written warning notice to the
251	accused consumer collection agency if the office is unable to
252	resolve all such sworn complaints and fewer than five unresolved
253	complaints remain. Such notice shall include a statement that
254	the warning may constitute evidence in any future investigation
255	of similar complaints against that agency and in any future
256	administrative determination of the imposition of other
257	administrative remedies available to the office under this part.
258	(9)  The office may issue a written reprimand when five or
259	more such unresolved sworn complaints against a consumer
260	collection agency collectively fall short of constituting
261	apparent repeated violations that warrant more serious
262	administrative sanctions. Such reprimand shall include a
263	statement that the reprimand may constitute evidence in any
264	future investigation of similar complaints against that agency
265	and in any future administrative determination of the imposition
266	of other administrative remedies available to the office.
267	(10)  The office shall issue a notice of intent either to
268	revoke or suspend the registration or to impose an
269	administrative fine when the office preliminarily determines
270	that repeated violations of s. 559.72 by an accused registrant
271	have occurred which would warrant more serious administrative
272	sanctions being imposed under this part. The office shall advise
273	each registrant of the right to require an administrative
274	hearing under chapter 120, prior to the agency's final action on
275	the matter as authorized by s. 559.730.
276	(5)(11)  The office shall advise the appropriate state
277	attorney, or the Attorney General in the case of an out-of-state
278	consumer debt collector, of any determination by the office of a
279	violation of the requirements of this part by any consumer
280	collection agency that which is not registered as required by
281	this part. The office shall furnish the state attorney or
282	Attorney General with the office's information concerning the
283	alleged violations of such requirements.
284	(6)  A registered consumer collection agency must provide a
285	written response to the office within 45 days after receipt of a
286	written request from the office for information concerning a
287	consumer complaint. The response must address the issues and
288	allegations raised in the complaint. The office may impose an
289	administrative fine of up to $250 per request per day upon any
290	registrant that fails to comply with this subsection.
291	Section 6.  Section 559.726, Florida Statutes, is created
292	to read:
293	559.726  Subpoenas.-
294	(1)  The office may:
295	(a)  Issue and serve subpoenas and subpoenas duces tecum to
296	compel the attendance of witnesses and the production of all
297	books, accounts, records, and other documents and materials
298	relevant to an investigation conducted by the office. The
299	office, or its authorized representative, may administer oaths
300	and affirmations to any person.
301	(b)  Seek subpoenas or subpoenas duces tecum from any court
302	to command the appearance of witnesses and the production of
303	books, accounts, records, and other documents or materials at a
304	time and place named in the subpoenas, and an authorized
305	representative of the office may serve such subpoenas.
306	(2)  If there is substantial noncompliance with a subpoena
307	or subpoena duces tecum issued by the office, the office may
308	petition the court in the county where the person subpoenaed
309	resides or has his or her principal place of business for an
310	order requiring the person to appear, testify, or produce such
311	books, accounts, records, and other documents as are specified
312	in the subpoena or subpoena duces tecum.
313	(3)  The office is entitled to use of the summary procedure
314	provided in s. 51.011, and the court shall advance such cause on
315	its calendar. Attorney's fees and any other costs incurred by
316	the office to obtain an order granting, in whole or in part, a
317	petition for enforcement of a subpoena or subpoena duces tecum
318	shall be taxed against the subpoenaed person, and failure to
319	comply with such order is a contempt of court.
320	(4)  To aid in the enforcement of this part, the office may
321	require or permit a person to file a statement in writing, under
322	oath, or otherwise as the office determines, as to all the facts
323	and circumstances concerning the matter to be investigated.
324	Section 7.  Section 559.727, Florida Statutes, is created
325	to read:
326	559.727  Cease and desist orders.-The office may issue and
327	serve upon any person an order to cease and desist and to take
328	corrective action if the office has reason to believe that the
329	person is violating, has violated, or is about to violate any
330	provision of this part, any rule or order issued under this
331	part, or any written agreement between the person and the
332	office. All procedural matters relating to issuance and
333	enforcement of such order are governed by chapter 120.
334	Section 8.  Section 559.730, Florida Statutes, is amended
335	to read:
336	559.730  Administrative remedies.-
337	(1)  The office may impose an administrative fine against,
338	or revoke or suspend the registration of, a any registrant under
339	this part who has committed a violation of engaged in repeated
340	violations which establish a clear pattern of abuse of
341	prohibited collection practices under s. 559.72. Final office
342	action to fine, suspend, or revoke or suspend the registration
343	of a any registrant is shall be subject to review in accordance
344	with chapter 120 in the same manner as revocation of a license.
345	The repeated violations of the law by one employee shall not be
346	grounds for revocation or suspension of the registration of the
347	employing consumer collection agency, unless the employee is
348	also the owner of a majority interest in the collection agency.
349	(2)  The registration of a registrant shall not be revoked
350	or suspended if the registrant shows by a preponderance of the
351	evidence that the violations were not intentional and resulted
352	from bona fide error notwithstanding the maintenance of
353	procedures reasonably adapted to avoid any such error.
354	(3)  The office shall consider the number of complaints
355	against the registrant in relation to the accused registrant's
356	volume of business when determining whether suspension or
357	revocation is the more appropriate sanction when circumstances
358	warrant that one or the other should be imposed upon a
359	registrant.
360	(2)(4)  The office may shall impose suspension rather than
361	revocation of a registration if when circumstances warrant that
362	one or the other should be imposed upon a registrant and the
363	accused registrant demonstrates that the registrant has taken
364	affirmative steps that which can be expected to effectively
365	eliminate the repeated violations and that the registrant's
366	registration has never been previously been suspended.
367	(3)(5)  In addition to, or in lieu of suspension or
368	revocation of a registration, the office may impose an
369	administrative fine of up to $10,000 per violation $1,000
370	against a the offending registrant as a sanction for repeated
371	violations of the provisions of s. 559.72 when violations do not
372	rise to the level of misconduct governed by subsection (1). The
373	commission shall adopt rules establishing guidelines for
374	imposing administrative penalties. Final office action to impose
375	an administrative fine shall be subject to review in accordance
376	with ss. 120.569 and 120.57.
377	(6)  Any administrative fine imposed under this part shall
378	be payable to the office. The office shall maintain an
379	appropriate record and shall deposit such fine into the
380	Regulatory Trust Fund of the office.
381	(7)  An administrative action by the office to impose
382	revocation, suspension, or fine shall be brought within 2 years
383	after the date of the last violation upon which the action is
384	founded.
385	(4)(8)  Nothing in This part does not shall be construed to
386	preclude any person from pursuing remedies available under the
387	Federal Fair Debt Collection Practices Act for any violation of
388	such act, including specifically against any person who is
389	exempt from the registration provisions of this part.
390	Section 9.  Section 559.77, Florida Statutes, is amended to
391	read:
392	559.77  Civil remedies.-
393	(1)  A debtor may bring a civil action against a person
394	violating the provisions of s. 559.72 in a court of competent
395	jurisdiction of the county in which the alleged violator resides
396	or has his or her principal place of business or in the county
397	where wherein the alleged violation occurred.
398	(2)  Any person who fails to comply with any provision of
399	s. 559.72 is Upon adverse adjudication, the defendant shall be
400	liable for actual damages and for additional statutory damages
401	as the court may allow, but not to exceed of up to $1,000,
402	together with court costs and reasonable attorney's fees
403	incurred by the plaintiff. In determining the defendant's
404	liability for any additional statutory damages, the court shall
405	consider the nature of the defendant's noncompliance with s.
406	559.72, the frequency and persistence of the such noncompliance,
407	and the extent to which the such noncompliance was intentional.
408	In a any class action lawsuit brought under this section, the
409	court may award additional statutory damages of up to $1,000 for
410	each named plaintiff and an aggregate award of additional
411	statutory damages up not to exceed the lesser of $500,000 or 1
412	percent of the defendant's net worth for all remaining class
413	members; however, the but in no event may this aggregate award
414	may not provide an individual class member with additional
415	statutory damages in excess of $1,000. The court may, in its
416	discretion, award punitive damages and may provide such
417	equitable relief as it deems necessary or proper, including
418	enjoining the defendant from further violations of this part. If
419	the court finds that the suit fails to raise a justiciable issue
420	of law or fact, the plaintiff is shall be liable for court costs
421	and reasonable attorney's fees incurred by the defendant.
422	(3)  A person may shall not be held liable in any action
423	brought under this section if the person shows by a
424	preponderance of the evidence that the violation was not
425	intentional and resulted from a bona fide error, notwithstanding
426	the maintenance of procedures reasonably adapted to avoid any
427	such error.
428	(4)  An action brought under this section must be commenced
429	within 2 years after the date on which the alleged violation
430	occurred.
431	(5)  In applying and construing this section, due
432	consideration and great weight shall be given to the
433	interpretations of the Federal Trade Commission and the federal
434	courts relating to the federal Fair Debt Collection Practices
435	Act.
436	Section 10.  This act shall take effect October 1, 2010.

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