Florida Senate - 2017                              CS for SB 594
       
       
        
       By the Committee on Banking and Insurance; and Senator Garcia
       
       
       
       
       
       597-02940-17                                           2017594c1
    1                        A bill to be entitled                      
    2         An act relating to consumer finance; amending s.
    3         516.031, F.S.; authorizing a licensee under the
    4         Florida Consumer Finance Act to charge, contract for,
    5         and receive a specified interest rate on certain
    6         loans; authorizing such licensee to make certain loans
    7         subject to certain conditions; defining the term
    8         “payment transfer”; specifying limitations for
    9         delinquency charges; revising a provision authorizing
   10         insufficient funds fees under certain circumstances;
   11         providing an effective date.
   12          
   13  Be It Enacted by the Legislature of the State of Florida:
   14  
   15         Section 1. Subsections (1) and (3) of section 516.031,
   16  Florida Statutes, are amended to read:
   17         516.031 Finance charge; maximum rates.—
   18         (1) INTEREST RATES.—A licensee may lend any sum of money up
   19  to $25,000. A licensee may not take a security interest secured
   20  by land on any loan less than $1,000. The licensee may charge,
   21  contract for, and receive thereon interest charges as provided
   22  and authorized by this section. If two or more interest rates
   23  are applied to the principal amount of a loan, the licensee may
   24  charge, contract for, and receive interest at that single annual
   25  percentage rate that, if applied according to the actuarial
   26  method to each of the scheduled periodic balances of principal,
   27  would produce at maturity the same total amount of interest as
   28  would result from the application of the two or more rates
   29  otherwise permitted, based upon the assumption that all payments
   30  are made as agreed.
   31         (a)Except as provided in paragraph (b), the maximum
   32  interest rate shall be 30 percent per annum, computed on the
   33  first $3,000 of the principal amount; 24 percent per annum on
   34  that part of the principal amount exceeding $3,000 and up to
   35  $4,000; and 18 percent per annum on that part of the principal
   36  amount exceeding $4,000 and up to $25,000. The original
   37  principal amount as used in this paragraph section is the same
   38  as the amount financed as defined by the federal Truth in
   39  Lending Act and Regulation Z of the federal Consumer Financial
   40  Protection Bureau Board of Governors of the Federal Reserve
   41  System. In determining compliance with the statutory maximum
   42  interest and finance charges set forth in this subsection
   43  herein, the computations used must shall be simple interest and
   44  not add-on interest or any other computations.
   45         (b)A licensee may make a loan in a principal amount less
   46  than $5,000 and charge, contract for, and receive interest
   47  charges and other charges authorized by this chapter, subject to
   48  the following:
   49         1.A borrower may rescind the loan by notifying the
   50  licensee of such intent, and returning to the licensee the full
   51  principal amount of the loan advanced to the borrower, as well
   52  as any payments made for ancillary products, within 2 business
   53  days after the date the loan is made. The licensee must disclose
   54  such right in writing to the borrower before the loan is made.
   55         2.A licensee may not take any security interest on the
   56  loan.
   57         3.The term of the loan may not be less than 120 days or
   58  more than 37 months.
   59         4.The maximum annual interest rate of the loan shall be 36
   60  percent per annum, computed on the original principal amount of
   61  the loan. The interest rate of the loan calculated as of the
   62  date the loan is made must be fixed for the life of the loan.
   63  The original principal amount of the loan is equal to the amount
   64  financed as defined by the federal Truth in Lending Act and
   65  Regulation Z of the federal Consumer Financial Protection
   66  Bureau. In determining compliance with the statutory maximum
   67  interest rate in this paragraph, the computations used must be
   68  simple interest and may not be add-on interest or any other
   69  computations.
   70         5.A licensee may not induce or permit any person to become
   71  obligated to the licensee, directly or contingently, or both,
   72  under more than one loan with the licensee made under this
   73  subsection at the same time.
   74         6.A licensee may not refinance a loan made under this
   75  paragraph with another loan made under this paragraph, unless
   76  the borrower has repaid at least 60 percent of the principal
   77  amount of his or her outstanding loan and his or her outstanding
   78  loan is not in default. For purposes of this paragraph, the term
   79  “refinance” means the replacement or revision of an existing
   80  loan contract with a borrower that results in an extension of
   81  additional principal to that borrower.
   82         7.A licensee shall make a determination of a borrower’s
   83  ability to repay a loan made under this paragraph by determining
   84  that the borrower’s residual income will be sufficient for the
   85  consumer to make the scheduled payments when due under the loan
   86  and meet basic living expenses during the term of the loan. The
   87  borrower’s residual income must be calculated using net income,
   88  verified by payroll receipts, tax returns, bank statements,
   89  benefit letters, or other reliable third party means, less debt
   90  payments and basic living expenses. Basic living expenses,
   91  including housing and utility costs, may be estimated using any
   92  reasonable means or database.
   93         8.The licensee must report each borrower’s full payment
   94  performance under the loan, including positive payment
   95  performance, to at least one consumer reporting agency that
   96  compiles and maintains files on consumers on a nationwide basis
   97  as defined in s. 603(p) of the federal Fair Credit Reporting
   98  Act, 15 U.S.C. s. 1681a(p), upon the licensee’s acceptance as a
   99  data furnisher by that consumer reporting agency.
  100         9.Before making the loan, the licensee must disclose in
  101  writing to the borrower information about the office’s consumer
  102  credit counseling services available under s. 516.32.
  103         10. A licensee shall make available to the borrower by
  104  electronic or physical means, at the time that a payment is made
  105  by the borrower, a plain and complete receipt of payment.
  106         11.a.A licensee may not initiate a payment transfer from a
  107  borrower’s bank account in connection with collecting an amount
  108  due under the loan after the licensee has attempted to initiate
  109  the payment transfer two consecutive times and each attempt
  110  resulted in a return indicating that the borrower’s bank account
  111  lacked sufficient funds. A licensee may collect only one
  112  insufficient funds fee for each payment transfer that is
  113  dishonored, regardless of whether the payment transfer was
  114  initiated and dishonored a second time. A licensee may not
  115  condition the making of a loan on the borrower’s repayment by
  116  one or more electronic funds transfers or predated checks.
  117         b.For purposes of this paragraph, the term “payment
  118  transfer” means a debit or funds withdrawal and includes, but is
  119  not limited to, an electronic funds transfer as defined in the
  120  federal Electronic Funds Transfer Act and Regulation E, 12
  121  C.F.R. part 1005, of the federal Consumer Financial Protection
  122  Bureau, or a paper check processed through a funds-transfer
  123  system, as defined in s. 670.105, or through the Automated
  124  Clearing House (ACH) network If two or more interest rates are
  125  applied to the principal amount of a loan, the licensee may
  126  charge, contract for, and receive interest at that single annual
  127  percentage rate which, if applied according to the actuarial
  128  method to each of the scheduled periodic balances of principal,
  129  would produce at maturity the same total amount of interest as
  130  would result from the application of the two or more rates
  131  otherwise permitted, based upon the assumption that all payments
  132  are made as agreed.
  133         (3) OTHER CHARGES.—
  134         (a) In addition to the interest, delinquency, and insurance
  135  charges provided in this section, further or other charges or
  136  amount for any examination, service, commission, or other thing
  137  or otherwise may not be directly or indirectly charged,
  138  contracted for, or received as a condition to the grant of a
  139  loan, except:
  140         1. An amount of up to $25 to reimburse a portion of the
  141  costs for investigating the character and credit of the person
  142  applying for the loan;
  143         2. An annual fee of $25 on the anniversary date of each
  144  line-of-credit account;
  145         3. Charges paid for the brokerage fee on a loan or line of
  146  credit of more than $10,000, title insurance, and the appraisal
  147  of real property offered as security if paid to a third party
  148  and supported by an actual expenditure;
  149         4. Intangible personal property tax on the loan note or
  150  obligation if secured by a lien on real property;
  151         5. The documentary excise tax and lawful fees, if any,
  152  actually and necessarily paid out by the licensee to any public
  153  officer for filing, recording, or releasing in any public office
  154  any instrument securing the loan, which may be collected when
  155  the loan is made or at any time thereafter;
  156         6. The premium payable for any insurance in lieu of
  157  perfecting any security interest otherwise required by the
  158  licensee in connection with the loan if the premium does not
  159  exceed the fees which would otherwise be payable, which may be
  160  collected when the loan is made or at any time thereafter;
  161         7. Actual and reasonable attorney fees and court costs as
  162  determined by the court in which suit is filed;
  163         8. Actual and commercially reasonable expenses for
  164  repossession, storing, repairing and placing in condition for
  165  sale, and selling of any property pledged as security; or
  166         9. A delinquency charge of up to $15 for each payment in
  167  default for at least 10 days if the charge is agreed upon, in
  168  writing, between the parties before imposing the charge. No more
  169  than one delinquency charge may be imposed for each payment in
  170  default. A maximum delinquency charge of $15 may be imposed for
  171  loans repayable in monthly installments. For loans repayable in
  172  installments due less than monthly, the maximum of all
  173  delinquency charges imposed during a calendar month may not
  174  exceed $15.
  175  
  176  Any charges, including interest, in excess of the combined total
  177  of all charges authorized and permitted by this chapter
  178  constitute a violation of chapter 687 governing interest and
  179  usury, and the penalties of that chapter apply. In the event of
  180  a bona fide error, the licensee shall refund or credit the
  181  borrower with the amount of the overcharge immediately but
  182  within 20 days after the discovery of such error.
  183         (b) Notwithstanding the provisions of paragraph (a), any
  184  lender of money who receives a check, draft, electronic funds
  185  transfer as defined in the federal Electronic Funds Transfer Act
  186  and Regulation E of the federal Consumer Financial Protection
  187  Bureau, negotiable order of withdrawal, or like instrument or
  188  transfer drawn on a bank or other depository institution, which
  189  instrument or transfer is given by a borrower as full or partial
  190  repayment of a loan, may, if such instrument or transfer is not
  191  paid or is dishonored by such institution, make and collect from
  192  the borrower an insufficient funds fee a bad check charge of not
  193  more than the greater of $20 or an amount equal to the actual
  194  fee charged charge made to the lender by the depository
  195  institution for the return of the unpaid or dishonored
  196  instrument or transfer.
  197         Section 2. This act shall take effect July 1, 2017.