Florida Senate - 2018                                     SB 920
       
       
        
       By Senator Bradley
       
       
       
       
       
       5-00976-18                                             2018920__
    1                        A bill to be entitled                      
    2         An act relating to deferred presentment transactions;
    3         amending s. 560.402, F.S.; defining the term “deferred
    4         presentment installment transaction”; amending s.
    5         560.404, F.S.; specifying the maximum face amount of
    6         checks which may be taken for deferred presentment
    7         installment transactions, exclusive of fees;
    8         specifying the maximum rate and frequency of fees that
    9         deferred presentment providers or their affiliates may
   10         charge on deferred presentment installment
   11         transactions; specifying when fees are earned for
   12         certain deferred presentment transactions; specifying
   13         the calculation of fees earned for deferred
   14         presentment installment transactions; prohibiting
   15         prepayment penalties; specifying the minimum and
   16         maximum terms of a deferred presentment installment
   17         transaction; providing an exception to a prohibition
   18         against the acceptance or holding of undated checks or
   19         checks with certain dates by a preferred presentment
   20         provider or its affiliate; conforming a cross
   21         reference; revising a notice in deferred presentment
   22         agreements; providing an exception to a prohibition,
   23         under certain circumstances, against a deferred
   24         presentment provider’s deposit or presentment of a
   25         drawer’s check; requiring a provider of a deferred
   26         presentment installment transaction to allow a drawer
   27         to defer a scheduled payment under certain
   28         circumstances; providing requirements for the deferred
   29         payment; specifying the frequency a certain fee may be
   30         imposed by Financial Services Commission rule for data
   31         on certain transactions submitted by deferred
   32         presentment providers to a certain database; providing
   33         an exception to a limitation on a deferred presentment
   34         provider’s acceptance of a certain check or
   35         authorization; specifying requirements for
   36         amortization, installment repayments, and calculation
   37         of charges for deferred presentment installment
   38         transactions; conforming provisions to changes made by
   39         the act; amending s. 560.405, F.S.; providing an
   40         exception to a prohibition against a deferred
   41         presentment provider’s or its affiliate’s presentment
   42         of a drawer’s check before the end of the deferment
   43         period; revising a condition under which a deferred
   44         presentment provider may allow the check to be
   45         redeemed in lieu of presentment; revising a
   46         prohibition against requiring a drawer to redeem his
   47         or her check before the agreed-upon date; reenacting
   48         s. 560.111(5), F.S., relating to prohibited acts, to
   49         incorporate the amendments made to ss. 560.404 and
   50         560.405, F.S., in references thereto; providing an
   51         effective date.
   52          
   53  Be It Enacted by the Legislature of the State of Florida:
   54  
   55         Section 1. Present subsections (3) through (7) of section
   56  560.402, Florida Statutes, are redesignated as subsections (4)
   57  through (8), respectively, and a new subsection (3) is added to
   58  that section, to read:
   59         560.402 Definitions.—For the purposes of this part, the
   60  term:
   61         (3) “Deferred presentment installment transaction” means a
   62  deferred presentment transaction that is repayable in
   63  installments.
   64         Section 2. Subsections (5), (6), (8), and (14), paragraph
   65  (b) of subsection (19), and subsections (20), (21), and (22) of
   66  section 560.404, Florida Statutes, are amended, present
   67  subsections (23) and (24) of that section are redesignated as
   68  subsections (24) and (25), respectively, and amended, and a new
   69  subsection (23) and subsection (26) are added to that section,
   70  to read:
   71         560.404 Requirements for deferred presentment
   72  transactions.—
   73         (5) The face amount of a check taken for deferred
   74  presentment may not exceed $500, exclusive of the fees allowed
   75  under this part. The face amount of a check taken for a deferred
   76  presentment installment transaction may not exceed $1,000,
   77  exclusive of fees allowed under this part.
   78         (6)(a) A deferred presentment provider or its affiliate may
   79  not charge fees that exceed 10 percent of the currency or
   80  payment instrument provided. A deferred presentment provider or
   81  its affiliate may not charge fees on any deferred presentment
   82  installment transaction which exceed 8 percent of the
   83  outstanding transaction balance on a biweekly basis.
   84         (b) Notwithstanding paragraph (a) However, a verification
   85  fee may be charged as provided in s. 560.309(8). The fees in
   86  paragraph (a) The 10-percent fee may not be applied to the
   87  verification fee.
   88         (c)Fees are earned at the time of origination for a
   89  deferred presentment transaction scheduled to be paid off in 31
   90  days or less; however, fees for a deferred presentment
   91  installment transaction are earned using a simple interest
   92  calculation. A deferred presentment provider may charge only
   93  those fees specifically authorized in this section. Prepayment
   94  penalties are prohibited.
   95         (8) A deferred presentment agreement may not be for a term
   96  longer than 31 days or less than 7 days, except for a deferred
   97  presentment installment transaction, which may not be for a term
   98  longer than 90 days or less than 60 days.
   99         (14) A deferred presentment provider or its affiliate may
  100  not accept or hold an undated check or a check dated on a date
  101  other than the date on which the deferred presentment provider
  102  agreed to hold the check and signed the deferred presentment
  103  transaction agreement, except when a customer provides a new
  104  payment instrument reflecting the new outstanding transaction
  105  balance and anticipated fees upon making a payment on a deferred
  106  presentment installment transaction.
  107         (19) A deferred presentment provider may not enter into a
  108  deferred presentment transaction with a drawer who has an
  109  outstanding deferred presentment transaction with that provider
  110  or with any other deferred presentment provider, or with a
  111  person whose previous deferred presentment transaction with that
  112  provider or with any other provider has been terminated for less
  113  than 24 hours. The deferred presentment provider must verify
  114  such information as follows:
  115         (b) The deferred presentment provider shall access the
  116  office’s database established pursuant to subsection (24) (23)
  117  and shall verify whether any other deferred presentment provider
  118  has an outstanding deferred presentment transaction with a
  119  particular person or has terminated a transaction with that
  120  person within the previous 24 hours. If a provider has not
  121  established a database, the deferred presentment provider may
  122  rely upon the written verification of the drawer as provided in
  123  subsection (20).
  124         (20) A deferred presentment provider shall provide the
  125  following notice in a prominent place on each deferred
  126  presentment agreement in at least 14-point type in substantially
  127  the following form and must obtain the signature of the drawer
  128  where indicated:
  129  
  130                               NOTICE                              
  131  
  132         1. STATE LAW PROHIBITS YOU FROM HAVING MORE THAN ONE
  133         DEFERRED PRESENTMENT AGREEMENT AT ANY ONE TIME. STATE
  134         LAW ALSO PROHIBITS YOU FROM ENTERING INTO A DEFERRED
  135         PRESENTMENT AGREEMENT WITHIN 24 HOURS AFTER
  136         TERMINATING ANY PREVIOUS DEFERRED PRESENTMENT
  137         AGREEMENT. FAILURE TO OBEY THIS LAW COULD CREATE
  138         SEVERE FINANCIAL HARDSHIP FOR YOU AND YOUR FAMILY.
  139  
  140         YOU MUST SIGN THE FOLLOWING STATEMENT:
  141  
  142         I DO NOT HAVE AN OUTSTANDING DEFERRED PRESENTMENT
  143         AGREEMENT WITH ANY DEFERRED PRESENTMENT PROVIDER AT
  144         THIS TIME. I HAVE NOT TERMINATED A DEFERRED
  145         PRESENTMENT AGREEMENT WITHIN THE PAST 24 HOURS.
  146         (Signature of Drawer)
  147  
  148         2. YOU CANNOT BE PROSECUTED IN CRIMINAL COURT FOR A
  149         CHECK WRITTEN UNDER THIS AGREEMENT, BUT ALL LEGALLY
  150         AVAILABLE CIVIL MEANS TO ENFORCE THE DEBT MAY BE
  151         PURSUED AGAINST YOU.
  152  
  153         3. STATE LAW PROHIBITS A DEFERRED PRESENTMENT PROVIDER
  154         (THIS BUSINESS) FROM ALLOWING YOU TO “ROLL OVER” YOUR
  155         DEFERRED PRESENTMENT TRANSACTION. THIS MEANS THAT YOU
  156         CANNOT BE ASKED OR REQUIRED TO PAY AN ADDITIONAL FEE
  157         IN ORDER TO FURTHER DELAY THE DEPOSIT OR PRESENTMENT
  158         OF YOUR CHECK FOR PAYMENT.
  159  
  160         4. FOR DEFERRED PRESENTMENT TRANSACTIONS NOT PAYABLE
  161         IN INSTALLMENTS: IF YOU INFORM THE PROVIDER IN PERSON
  162         THAT YOU CANNOT COVER THE CHECK OR PAY IN FULL THE
  163         AMOUNT OWING AT THE END OF THE TERM OF THIS AGREEMENT,
  164         YOU WILL RECEIVE A GRACE PERIOD EXTENDING THE TERM OF
  165         THE AGREEMENT FOR AN ADDITIONAL 60 DAYS AFTER THE
  166         ORIGINAL TERMINATION DATE, WITHOUT ANY ADDITIONAL
  167         CHARGE. THE DEFERRED PRESENTMENT PROVIDER SHALL
  168         REQUIRE THAT YOU, AS A CONDITION OF OBTAINING THE
  169         GRACE PERIOD, COMPLETE CONSUMER CREDIT COUNSELING
  170         PROVIDED BY AN AGENCY INCLUDED ON THE LIST THAT WILL
  171         BE PROVIDED TO YOU BY THIS PROVIDER. YOU MAY ALSO
  172         AGREE TO COMPLY WITH AND ADHERE TO A REPAYMENT PLAN
  173         APPROVED BY THAT AGENCY. IF YOU DO NOT COMPLY WITH AND
  174         ADHERE TO A REPAYMENT PLAN APPROVED BY THAT AGENCY, WE
  175         MAY DEPOSIT OR PRESENT YOUR CHECK FOR PAYMENT AND
  176         PURSUE ALL LEGALLY AVAILABLE CIVIL MEANS TO ENFORCE
  177         THE DEBT AT THE END OF THE 60-DAY GRACE PERIOD.
  178  
  179         5. FOR DEFERRED PRESENTMENT INSTALLMENT TRANSACTIONS:
  180         IF YOU INFORM THE PROVIDER IN PERSON THAT YOU CANNOT
  181         PAY IN FULL THE SCHEDULED AMOUNT OWING BEFORE THE DUE
  182         DATE AS PROVIDED BY THE AGREEMENT, YOU MAY DEFER THE
  183         SCHEDULED PAYMENT, WITHOUT ANY ADDITIONAL FEES OR
  184         CHARGES, AND THE PROVIDER MAY NOT DEFAULT THE ACCOUNT
  185         AND ACCELERATE THE FULL BALANCE. YOU MAY REQUEST ONLY
  186         ONE DEFERRED PAYMENT PER LOAN. THE DEFERRED PAYMENT
  187         WILL BE ADDED AFTER THE LAST SCHEDULED PAYMENT AND IS
  188         DUE AT AN INTERVAL NO LESS THAN THE INTERVALS BETWEEN
  189         THE SCHEDULED PAYMENTS.
  190  
  191         (21) The deferred presentment provider may not deposit or
  192  present the drawer’s check if the drawer informs the provider in
  193  person that the drawer cannot redeem or pay in full in cash the
  194  amount due and owing the deferred presentment provider without
  195  first complying with subsection (23). No additional fees or
  196  penalties may be imposed on the drawer by virtue of any
  197  misrepresentation made by the drawer as to the sufficiency of
  198  funds in the drawer’s account. Additional fees may not be added
  199  to the amounts due and owing to the deferred presentment
  200  provider.
  201         (22) As to deferred presentment transactions not payable in
  202  installments, if, by the end of the deferment period, the drawer
  203  informs the deferred presentment provider in person that the
  204  drawer cannot redeem or pay in full in cash the amount due and
  205  owing the deferred presentment provider, the deferred
  206  presentment provider shall provide a grace period extending the
  207  term of the agreement for an additional 60 days after the
  208  original termination date, without any additional charge.
  209         (a) The provider shall require that as a condition of
  210  providing a grace period, that the drawer make an appointment
  211  with a consumer credit counseling agency within 7 days after the
  212  end of the deferment period and complete the counseling by the
  213  end of the grace period. The drawer may agree to, comply with,
  214  and adhere to a repayment plan approved by the counseling
  215  agency. If the drawer agrees to comply with and adhere to a
  216  repayment plan approved by the counseling agency, the provider
  217  must also comply with and adhere to that repayment plan. The
  218  deferred presentment provider may not deposit or present the
  219  drawer’s check for payment before the end of the 60-day grace
  220  period unless the drawer fails to comply with such conditions or
  221  the drawer fails to notify the provider of such compliance.
  222  Before each deferred presentment transaction, the provider may
  223  verbally advise the drawer of the availability of the grace
  224  period consistent with the written notice in subsection (20),
  225  and may not discourage the drawer from using the grace period.
  226         (b) At the commencement of the grace period, the deferred
  227  presentment provider shall provide the drawer:
  228         1. Verbal notice of the availability of the grace period
  229  consistent with the written notice in subsection (20).
  230         2. A list of approved consumer credit counseling agencies
  231  prepared by the office. The office list shall include nonprofit
  232  consumer credit counseling agencies affiliated with the National
  233  Foundation for Credit Counseling which provide credit counseling
  234  services to state residents in person, by telephone, or through
  235  the Internet. The office list must include phone numbers for the
  236  agencies, the counties served by the agencies, and indicate the
  237  agencies that provide telephone counseling and those that
  238  provide Internet counseling. The office shall update the list at
  239  least once each year.
  240         3. The following notice in at least 14-point type in
  241  substantially the following form:
  242  
  243         AS A CONDITION OF OBTAINING A GRACE PERIOD EXTENDING
  244         THE TERM OF YOUR DEFERRED PRESENTMENT AGREEMENT FOR AN
  245         ADDITIONAL 60 DAYS, UNTIL [DATE], WITHOUT ANY
  246         ADDITIONAL FEES, YOU MUST COMPLETE CONSUMER CREDIT
  247         COUNSELING PROVIDED BY AN AGENCY INCLUDED ON THE LIST
  248         THAT WILL BE PROVIDED TO YOU BY THIS PROVIDER. YOU MAY
  249         ALSO AGREE TO COMPLY WITH AND ADHERE TO A REPAYMENT
  250         PLAN APPROVED BY THE AGENCY. THE COUNSELING MAY BE IN
  251         PERSON, BY TELEPHONE, OR THROUGH THE INTERNET. YOU
  252         MUST NOTIFY US WITHIN 7 DAYS, BY [DATE], THAT YOU HAVE
  253         MADE AN APPOINTMENT WITH A CONSUMER CREDIT COUNSELING
  254         AGENCY. YOU MUST ALSO NOTIFY US WITHIN 60 DAYS, BY
  255         [DATE], THAT YOU HAVE COMPLETED THE CONSUMER CREDIT
  256         COUNSELING. WE MAY VERIFY THIS INFORMATION WITH THE
  257         AGENCY. IF YOU FAIL TO PROVIDE THE 7-DAY OR 60-DAY
  258         NOTICE, OR IF YOU HAVE NOT MADE THE APPOINTMENT OR
  259         COMPLETED THE COUNSELING WITHIN THE TIME REQUIRED, WE
  260         MAY DEPOSIT OR PRESENT YOUR CHECK FOR PAYMENT AND
  261         PURSUE ALL LEGALLY AVAILABLE CIVIL MEANS TO ENFORCE
  262         THE DEBT.
  263  
  264         (c) If a drawer completes an approved payment plan, the
  265  deferred presentment provider shall pay one-half of the drawer’s
  266  fee for the deferred presentment agreement to the consumer
  267  credit counseling agency.
  268         (23)As to deferred presentment installment transactions,
  269  if a drawer informs the deferred presentment installment
  270  transaction provider in writing or in person by noon of the
  271  business day before a scheduled payment that the drawer cannot
  272  pay in full the scheduled payment amount due and owing the
  273  deferred presentment installment provider, the deferred
  274  presentment installment provider must provide the drawer the
  275  opportunity to defer the scheduled payment, at no additional fee
  276  or charges, until after the last scheduled payment. Such
  277  deferred payment must be due at an interval after the last
  278  scheduled payment which is no less than the intervals between
  279  the originally scheduled payments.
  280         (24)(23) The office shall implement a common database with
  281  real-time access through an Internet connection for deferred
  282  presentment providers, as provided in this subsection. The
  283  database must be accessible to the office and the deferred
  284  presentment providers in order to verify whether any deferred
  285  presentment transactions are outstanding for a particular
  286  person. Deferred presentment providers shall submit such data
  287  before entering into each deferred presentment transaction in
  288  such format as required by rule, including the drawer’s name,
  289  social security number or employment authorization alien number,
  290  address, driver license number, amount of the transaction, date
  291  of transaction, the date that the transaction is closed, and
  292  such additional information as is required by rule. The
  293  commission may by rule impose a fee of up to $1 per transaction,
  294  or for each month that a balance is scheduled to be outstanding
  295  on transactions that have multiple scheduled payments, for data
  296  that must be submitted by a deferred presentment provider. A
  297  deferred presentment provider may rely on the information
  298  contained in the database as accurate and is not subject to any
  299  administrative penalty or civil liability due to relying on
  300  inaccurate information contained in the database. A deferred
  301  presentment provider must notify the office, in a manner as
  302  prescribed by rule, within 15 business days after ceasing
  303  operations or no longer holding a license under part II or part
  304  III of this chapter. Such notification must include a
  305  reconciliation of all open transactions. If the provider fails
  306  to provide notice, the office shall take action to
  307  administratively release all open and pending transactions in
  308  the database after the office becomes aware of the closure. This
  309  section does not affect the rights of the provider to enforce
  310  the contractual provisions of the deferred presentment
  311  agreements through any civil action allowed by law. The
  312  commission may adopt rules to administer this subsection and to
  313  ensure that the database is used by deferred presentment
  314  providers in accordance with this section.
  315         (25)(24) A deferred presentment provider may not accept
  316  more than one check or authorization to initiate more than one
  317  automated clearinghouse transaction to collect on a deferred
  318  presentment transaction for a single deferred presentment
  319  transaction, except for deferred presentment installment
  320  transactions in which such checks or authorizations represent
  321  multiple scheduled payments.
  322         (26) A deferred presentment installment transaction must be
  323  fully amortizing and repayable in substantially equal and
  324  consecutive installments according to a payment schedule agreed
  325  upon by the parties with no less than 13 days and not more than
  326  1 calendar month between payments, except that the first
  327  installment period may be longer than the remaining installment
  328  periods by not more than 15 days, and the first installment
  329  payment may be larger than the remaining installment payments by
  330  the amount of charges applicable to the extra days. In
  331  calculating charges under this subsection, when the first
  332  installment period is longer than the remaining installment
  333  periods, the amount of the charges applicable to the extra days
  334  may not exceed those that would accrue under a simple interest
  335  calculation based on the rates allowed under subsection (6).
  336         Section 3. Subsections (1), (3), and (4) of section
  337  560.405, Florida Statutes, are amended to read:
  338         560.405 Deposit; redemption.—
  339         (1) The deferred presentment provider or its affiliate may
  340  not present the drawer’s check before the end of the deferment
  341  period, except for a missed scheduled payment for a deferred
  342  presentment installment transaction, as reflected and described
  343  in the deferred presentment transaction agreement.
  344         (3) Notwithstanding subsection (1), in lieu of presentment,
  345  a deferred presentment provider may allow the check to be
  346  redeemed at any time upon payment of the outstanding transaction
  347  balance and earned fees face amount of the drawer’s check.
  348  However, payment may not be made in the form of a personal
  349  check. Upon redemption, the deferred presentment provider shall
  350  return the drawer’s check and provide a signed, dated receipt
  351  showing that the drawer’s check has been redeemed.
  352         (4) A drawer may not be required to redeem his or her check
  353  in full before the agreed-upon date; however, the drawer may
  354  choose to redeem the check before the agreed-upon presentment
  355  date.
  356         Section 4. For the purpose of incorporating the amendments
  357  made by this act to sections 560.404 and 560.405, Florida
  358  Statutes, in references thereto, subsection (5) of section
  359  560.111, Florida Statutes, is reenacted to read:
  360         560.111 Prohibited acts.—
  361         (5) Any person who willfully violates any provision of s.
  362  560.403, s. 560.404, or s. 560.405 commits a felony of the third
  363  degree, punishable as provided in s. 775.082, s. 775.083, or s.
  364  775.084.
  365         Section 5. This act shall take effect July 1, 2018.