Bill Amendment: FL S0920 | 2018 | Regular Session
NOTE: For additional amemendments please see the Bill Drafting List
Bill Title: Deferred Presentment Transactions
Status: 2018-03-21 - Chapter No. 2018-26 [S0920 Detail]
Download: Florida-2018-S0920-Senate_Committee_Amendment_478870.html
Bill Title: Deferred Presentment Transactions
Status: 2018-03-21 - Chapter No. 2018-26 [S0920 Detail]
Download: Florida-2018-S0920-Senate_Committee_Amendment_478870.html
Florida Senate - 2018 COMMITTEE AMENDMENT Bill No. SB 920 Ì478870BÎ478870 LEGISLATIVE ACTION Senate . House . . . . . ————————————————————————————————————————————————————————————————— ————————————————————————————————————————————————————————————————— The Committee on Commerce and Tourism (Bradley) recommended the following: 1 Senate Amendment (with title amendment) 2 3 Delete everything after the enacting clause 4 and insert: 5 Section 1. Present subsections (3) through (5) and (6) of 6 section 560.402, Florida Statutes, are renumbered as subsections 7 (4) through (6) and (8), respectively, present subsection (7) is 8 amended, and new subsections (3) and (7) are added to that 9 section, to read: 10 560.402 Definitions.—For the purposes of this part, the 11 term: 12 (3) “Deferred presentment installment transaction” means a 13 deferred presentment transaction that is repayable in 14 installments. 15 (7) “Outstanding transaction balance” means the amount 16 received by the drawer from the deferred presentment provider 17 that is due and owing, exclusive of the fees allowed under this 18 part, in a deferred presentment transaction. 19 (9)(7)“Termination of a deferred presentment agreement” 20 means that all checksthe checkthat areisthe basis for the 21 agreement areisredeemed by the drawer by payment in full in 22 cash, or areisdeposited and the deferred presentment provider 23 has evidence that such checks havecheck hascleared. 24 Verification of sufficient funds in the drawer’s account by the 25 deferred presentment provider is not sufficient evidence to deem 26 that the deferred presentmentdeposittransaction is terminated. 27 Section 2. Subsections (5), (6), (8), (12), (13), (14), 28 (19), (20), (21), and (22) and present subsections (23) and (24) 29 of section 560.404, Florida Statutes, are amended, and new 30 subsection (23) and subsection (26) are added to that section, 31 to read: 32 560.404 Requirements for deferred presentment 33 transactions.— 34 (5) The face amount of a check taken for deferred 35 presentment transactions not repayable in installments may not 36 exceed $500, exclusive of the fees allowed under this part. For 37 a deferred presentment installment transaction, neither the face 38 amount of a check nor the outstanding transaction balance may 39 exceed $1,000, exclusive of the fees allowed under this part. 40 (6)(a) A deferred presentment provider or its affiliate may 41 not charge fees that exceed 10 percent of the currency or 42 payment instrument provided for a deferred presentment 43 transaction not repayable in installments. A deferred 44 presentment provider or its affiliate may not charge fees on any 45 deferred presentment installment transaction which exceed 8 46 percent of the outstanding transaction balance on a biweekly 47 basis. 48 (b) Notwithstanding paragraph (a)However, a verification 49 fee may be charged as provided in s. 560.309(8). The fees in 50 paragraph (a)The 10-percent feemay not be applied to the 51 verification fee. 52 (c) Fees are earned at the time of origination for a 53 deferred presentment transaction scheduled to be paid off in 31 54 days or less; however, fees for a deferred presentment 55 installment transaction are earned using a simple interest 56 calculation. A deferred presentment provider may charge only 57 those fees specifically authorized in this section. Prepayment 58 penalties are prohibited. 59 (8) A deferred presentment agreement may not be for a term 60 longer than 31 days or fewerlessthan 7 days, except for a 61 deferred presentment installment transaction, which may not be 62 for a term longer than 90 days or fewer than 60 days. 63 (12) The deferred presentment agreement and the drawer’s 64 initial check must bear the same date, and the number of days of 65 the deferment period mustshallbe calculated from that date. 66 For deferred presentment installment transactions, the deferred 67 presentment provider may accept additional checks, subject to 68 the limitations in subsection (5), each bearing the date that 69 the check was given to the provider, and the deferred 70 presentment agreement must include the deferment period 71 applicable to each check. The deferred presentment provider and 72 the drawer may not alter or delete the date on any written 73 agreement or check held by the deferred presentment provider. 74 (13) For each deferred presentment transaction, the 75 deferred presentment provider must comply with the disclosure 76 requirements of 12 C.F.R. part 226, relating to the federal 77 Truth-in-Lending Act, and Regulation Z of the Bureau of Consumer 78 Financial ProtectionBoard of Governors of the Federal Reserve79Board. A copy of the disclosure must be provided to the drawer 80 at the time the deferred presentment transaction is initiated. 81 (14) A deferred presentment provider or its affiliate may 82 not accept or hold an undated check or a check dated on a date 83 other than the date on which the deferred presentment provider 84 agreed to hold the check and signed the deferred presentment 85 transaction agreement, except when a customer provides a new 86 payment instrument reflecting the new outstanding transaction 87 balance and anticipated fees upon making a payment on a deferred 88 presentment installment transaction. 89 (19) A deferred presentment provider may not enter into a 90 deferred presentment transaction with a drawer who has an 91 outstanding deferred presentment transaction with that provider 92 or with any other deferred presentment provider, or with a 93 person whose previous deferred presentment transaction with that 94 provider or with any other provider has been terminated for less 95 than 24 hours. The deferred presentment provider must verify 96 such information as follows: 97 (a) The deferred presentment provider mustshallmaintain a 98 common database andshallverify whether the provider or an 99 affiliate has an outstanding deferred presentment transaction 100 with a particular person or has terminated a transaction with 101 that person within the previous 24 hours. If a provider has not 102 established a database, the provider may rely upon the written 103 verification of the drawer as provided in subsection (20). 104 (b) The deferred presentment provider mustshallaccess the 105 office’s database established pursuant to subsection (24)(23)106 andshallverify whether any other deferred presentment provider 107 has an outstanding deferred presentment transaction with a 108 particular person or has terminated a transaction with that 109 person within the previous 24 hours. Before the office has 110 implemented a database to include deferred presentment 111 installment transactionsIf a provider has not established a112database, the deferred presentment provider must access the 113 office’s current database pursuant to this paragraph and may 114 rely upon the written verification of the drawer as provided in 115 subsection (20). 116 (20) A deferred presentment provider mustshallprovide the 117 following notice in a prominent place on each deferred 118 presentment agreement in at least 14-point type in substantially 119 the following form andmustobtain the signature of the drawer 120 where indicated: 121 122 NOTICE 123 124 1. STATE LAW PROHIBITS YOU FROM HAVING MORE THAN ONE 125 DEFERRED PRESENTMENT AGREEMENT AT ANY ONE TIME. STATE 126 LAW ALSO PROHIBITS YOU FROM ENTERING INTO A DEFERRED 127 PRESENTMENT AGREEMENT WITHIN 24 HOURS AFTER 128 TERMINATING ANY PREVIOUS DEFERRED PRESENTMENT 129 AGREEMENT. FAILURE TO OBEY THIS LAW COULD CREATE 130 SEVERE FINANCIAL HARDSHIP FOR YOU AND YOUR FAMILY. 131 132 YOU MUST SIGN THE FOLLOWING STATEMENT: 133 134 I DO NOT HAVE AN OUTSTANDING DEFERRED PRESENTMENT 135 AGREEMENT WITH ANY DEFERRED PRESENTMENT PROVIDER AT 136 THIS TIME. I HAVE NOT TERMINATED A DEFERRED 137 PRESENTMENT AGREEMENT WITHIN THE PAST 24 HOURS. 138 (Signature of Drawer) 139 140 2. YOU CANNOT BE PROSECUTED IN CRIMINAL COURT FOR A 141 CHECK WRITTEN UNDER THIS AGREEMENT, BUT ALL LEGALLY 142 AVAILABLE CIVIL MEANS TO ENFORCE THE DEBT MAY BE 143 PURSUED AGAINST YOU. 144 145 3. STATE LAW PROHIBITS A DEFERRED PRESENTMENT PROVIDER 146 (THIS BUSINESS) FROM ALLOWING YOU TO “ROLL OVER” YOUR 147 DEFERRED PRESENTMENT TRANSACTION. THIS MEANS THAT YOU 148 CANNOT BE ASKED OR REQUIRED TO PAY AN ADDITIONAL FEE 149 IN ORDER TO FURTHER DELAY THE DEPOSIT OR PRESENTMENT 150 OF YOUR CHECK FOR PAYMENT. 151 152 4. FOR DEFERRED PRESENTMENT TRANSACTIONS NOT REPAYABLE 153 IN INSTALLMENTS: IF YOU INFORM THE PROVIDER IN PERSON 154 THAT YOU CANNOT COVER THE CHECK OR PAY IN FULL THE 155 AMOUNT OWING AT THE END OF THE TERM OF THIS AGREEMENT, 156 YOU WILL RECEIVE A GRACE PERIOD EXTENDING THE TERM OF 157 THE AGREEMENT FOR AN ADDITIONAL 60 DAYS AFTER THE 158 ORIGINAL TERMINATION DATE, WITHOUT ANY ADDITIONAL 159 CHARGE. THE DEFERRED PRESENTMENT PROVIDER MUSTSHALL160 REQUIRE THAT YOU, AS A CONDITION OF OBTAINING THE 161 GRACE PERIOD, COMPLETE CONSUMER CREDIT COUNSELING 162 PROVIDED BY AN AGENCY INCLUDED ON THE LIST THAT WILL 163 BE PROVIDED TO YOU BY THIS PROVIDER. YOU MAY ALSO 164 AGREE TO COMPLY WITH AND ADHERE TO A REPAYMENT PLAN 165 APPROVED BY THAT AGENCY. IF YOU DO NOT COMPLY WITH AND 166 ADHERE TO A REPAYMENT PLAN APPROVED BY THAT AGENCY, WE 167 MAY DEPOSIT OR PRESENT YOUR CHECK FOR PAYMENT AND 168 PURSUE ALL LEGALLY AVAILABLE CIVIL MEANS TO ENFORCE 169 THE DEBT AT THE END OF THE 60-DAY GRACE PERIOD. 170 171 5. FOR DEFERRED PRESENTMENT INSTALLMENT TRANSACTIONS: 172 IF YOU INFORM THE PROVIDER IN WRITING OR IN PERSON BY 173 NOON [TIME ZONE] OF THE BUSINESS DAY BEFORE A 174 SCHEDULED PAYMENT THAT YOU CANNOT PAY IN FULL THE 175 SCHEDULED AMOUNT DUE AND OWING, YOU MAY DEFER THE 176 SCHEDULED PAYMENT, WITHOUT ANY ADDITIONAL FEES OR 177 CHARGES, AND THE PROVIDER MAY NOT DEFAULT THE ACCOUNT 178 AND ACCELERATE THE FULL BALANCE. YOU MAY REQUEST ONLY 179 ONE DEFERRED PAYMENT PER LOAN. THE DEFERRED PAYMENT 180 WILL BE ADDED AFTER THE LAST SCHEDULED PAYMENT AND IS 181 DUE AT AN INTERVAL NO SHORTER THAN THE INTERVALS 182 BETWEEN THE ORIGINALLY SCHEDULED PAYMENTS. 183 184 (21) The deferred presentment provider may not deposit or 185 present the drawer’s check if the drawer informs the provider in 186 writing or in person that the drawer cannot redeem or pay in 187 full in cash the amount due and owing the deferred presentment 188 provider, unless the drawer fails to comply with subsection (22) 189 or subsection (23), as applicable. No additional fees or 190 penalties may be imposed on the drawer by virtue of any 191 misrepresentation made by the drawer as to the sufficiency of 192 funds in the drawer’s account. Additional fees may not be added 193 to the amounts due and owing to the deferred presentment 194 provider. 195 (22) For deferred presentment transactions not repayable in 196 installments, if, by the end of the deferment period, the drawer 197 informs the deferred presentment provider in writing or in 198 person that the drawer cannot redeem or pay in full in cash the 199 amount due and owing the deferred presentment provider, the 200 deferred presentment provider mustshallprovide a grace period 201 extending the term of the agreement for an additional 60 days 202 after the original termination date, without any additional 203 charge. 204 (a) The provider mustshallrequire,thatas a condition of 205 providing a grace period, that the drawer make an appointment 206 with a consumer credit counseling agency within 7 days after the 207 end of the deferment period and complete the counseling by the 208 end of the grace period. The drawer may agree to, comply with, 209 and adhere to a repayment plan approved by the counseling 210 agency. If the drawer agrees to comply with and adhere to a 211 repayment plan approved by the counseling agency, the provider 212 must also comply with and adhere to that repayment plan. The 213 deferred presentment provider may not deposit or present the 214 drawer’s check for payment before the end of the 60-day grace 215 period unless the drawer fails to comply with such conditions or 216 the drawer fails to notify the provider of such compliance. 217 Before each deferred presentment transaction, the provider may 218 verbally advise the drawer of the availability of the grace 219 period consistent with the written notice in subsection (20), 220 and may not discourage the drawer from using the grace period. 221 (b) At the commencement of the grace period, the deferred 222 presentment provider mustshallprovide the drawer: 223 1. Verbal notice of the availability of the grace period 224 consistent with the written notice in subsection (20). 225 2. A list of approved consumer credit counseling agencies 226 prepared by the office. The office list mustshallinclude 227 nonprofit consumer credit counseling agencies affiliated with 228 the National Foundation for Credit Counseling which provide 229 credit counseling services to state residents in person, by 230 telephone, or through the Internet. The office list must include 231 phone numbers for the agencies, the counties served by the 232 agencies, and indicate the agencies that provide telephone 233 counseling and those that provide Internet counseling. The 234 office mustshallupdate the list at least once each year. 235 3. The following notice in at least 14-point type in 236 substantially the following form: 237 238 AS A CONDITION OF OBTAINING A GRACE PERIOD EXTENDING 239 THE TERM OF YOUR DEFERRED PRESENTMENT AGREEMENT FOR AN 240 ADDITIONAL 60 DAYS, UNTIL [DATE], WITHOUT ANY 241 ADDITIONAL FEES, YOU MUST COMPLETE CONSUMER CREDIT 242 COUNSELING PROVIDED BY AN AGENCY INCLUDED ON THE LIST 243 THAT WILL BE PROVIDED TO YOU BY THIS PROVIDER. YOU MAY 244 ALSO AGREE TO COMPLY WITH AND ADHERE TO A REPAYMENT 245 PLAN APPROVED BY THE AGENCY. THE COUNSELING MAY BE IN 246 PERSON, BY TELEPHONE, OR THROUGH THE INTERNET. YOU 247 MUST NOTIFY US WITHIN 7 DAYS, BY [DATE], THAT YOU HAVE 248 MADE AN APPOINTMENT WITH A CONSUMER CREDIT COUNSELING 249 AGENCY. YOU MUST ALSO NOTIFY US WITHIN 60 DAYS, BY 250 [DATE], THAT YOU HAVE COMPLETED THE CONSUMER CREDIT 251 COUNSELING. WE MAY VERIFY THIS INFORMATION WITH THE 252 AGENCY. IF YOU FAIL TO PROVIDE THE 7-DAY OR 60-DAY 253 NOTICE, OR IF YOU HAVE NOT MADE THE APPOINTMENT OR 254 COMPLETED THE COUNSELING WITHIN THE TIME REQUIRED, WE 255 MAY DEPOSIT OR PRESENT YOUR CHECK FOR PAYMENT AND 256 PURSUE ALL LEGALLY AVAILABLE CIVIL MEANS TO ENFORCE 257 THE DEBT. 258 259 (c) If a drawer completes an approved payment plan, the 260 deferred presentment provider mustshallpay one-half of the 261 drawer’s fee for the deferred presentment agreement to the 262 consumer credit counseling agency. 263 (23) For deferred presentment installment transactions, if 264 a drawer informs the deferred presentment provider in writing or 265 in person by noon of the business day before a scheduled payment 266 that the drawer cannot pay in full the scheduled payment amount 267 due and owing the provider, the deferred presentment provider 268 must provide the drawer the opportunity to defer the scheduled 269 payment, at no additional fee or charge, until after the last 270 scheduled payment. The phrase “by noon” means 12:00 p.m. of the 271 same time zone in which the deferred presentment agreement was 272 entered into. Only one deferred payment is permitted for each 273 deferred presentment installment transaction. The deferred 274 payment must be due at an interval after the last scheduled 275 payment which is no shorter than the intervals between the 276 originally scheduled payments. 277 (24)(a)(23)The office mustshallimplement a common 278 database with real-time access through an Internet connection 279 for deferred presentment providers, as provided in this 280 subsection. The database must be accessible to the office and 281 the deferred presentment providers in order to verify whether 282 any deferred presentment transactions are outstanding for a 283 particular person. Deferred presentment providers mustshall284 submit such data before entering into each deferred presentment 285 transaction in such format as required by rule, including the 286 drawer’s name, social security number or employment 287 authorization alien number, address, driver license number, 288 amount of the transaction, date of transaction, the date that 289 the transaction is closed, and such additional information as is 290 required by rule. 291 (b) For data that must be submitted by a deferred 292 presentment provider, the commission may by rule impose a fee of 293 up to $1 per transaction for deferred presentment transactions 294 not repayable in installments, and the commission may impose a 295 fee of up to $1 for each full or partial 30-day period that a 296 balance is scheduled to be outstanding for a deferred 297 presentment installment transactionfor data that must be298submitted by a deferred presentment provider. 299 (c) A deferred presentment provider may rely on the 300 information contained in the database as accurate and is not 301 subject to any administrative penalty or civil liability due to 302 relying on inaccurate information contained in the database. 303 (d) A deferred presentment provider must notify the office, 304 in a manner as prescribed by rule, within 15 business days after 305 ceasing operations or no longer holding a license under part II 306 or part III of this chapter. Such notification must include a 307 reconciliation of all open transactions. If the provider fails 308 to provide notice, the office mustshalltake action to 309 administratively release all open and pending transactions in 310 the database after the office becomes aware of the closure. 311 (e) This section does not affect the rights of the provider 312 to enforce the contractual provisions of the deferred 313 presentment agreements through any civil action allowed by law. 314 (f) The commission may adopt rules to administer this 315 subsection and to ensure that the database is used by deferred 316 presentment providers in accordance with this section. 317 (25)(24)A deferred presentment provider may not accept 318 more than one check or authorization to initiate more than one 319 automated clearinghouse transaction to collect on a deferred 320 presentment transaction for a single deferred presentment 321 transaction, except for deferred presentment installment 322 transactions in which such checks or authorizations represent 323 multiple scheduled payments. 324 (26) A deferred presentment installment transaction must be 325 fully amortizing and repayable in consecutive installments as 326 nearly equal as mathematically practicable according to a 327 payment schedule agreed upon by the parties with no fewer than 328 13 days and not more than 1 calendar month between payments, 329 except that the first installment may be longer than the 330 remaining installments by not more than 15 days, and the first 331 installment payment may be larger than the remaining installment 332 payments by the amount of charges applicable to the extra days. 333 In calculating charges under this subsection, when the first 334 installment is longer than the remaining installments, the 335 amount of the charges applicable to the extra days may not 336 exceed those that would accrue under a simple interest 337 calculation based on the rate allowed under subsection (6). 338 Section 3. Subsections (1), (3), and (4) of section 339 560.405, Florida Statutes, are amended to read: 340 560.405 Deposit; redemption.— 341 (1) The deferred presentment provider or its affiliate may 342 not present the drawer’s check before the end of the deferment 343 period, except for a missed scheduled payment for a deferred 344 presentment installment transaction that has not been otherwise 345 deferred pursuant to s. 560.404(23), as reflected and described 346 in the deferred presentment transaction agreement. 347 (3) Notwithstanding subsection (1), in lieu of presentment, 348 a deferred presentment provider may allow the check to be 349 redeemed at any time upon payment of the outstanding transaction 350 balance and earned feesface amount of the drawer’s check. 351 However, payment may not be made in the form of a personal 352 check. Upon redemption, the deferred presentment provider must 353shallreturn the drawer’s check and provide a signed, dated 354 receipt showing that the drawer’s check has been redeemed. 355 (4) A drawer may not be required to redeem his or her check 356 in full before the agreed-upon date; however, the drawer may 357 choose to redeem the check before the agreed-upon presentment 358 date. 359 Section 4. For the purpose of incorporating the amendments 360 made by this act to sections 560.404 and 560.405, Florida 361 Statutes, in references thereto, subsection (5) of section 362 560.111, Florida Statutes, is reenacted to read: 363 560.111 Prohibited acts.— 364 (5) Any person who willfully violates any provision of s. 365 560.403, s. 560.404, or s. 560.405 commits a felony of the third 366 degree, punishable as provided in s. 775.082, s. 775.083, or s. 367 775.084. 368 Section 5. This act shall take effect July 1, 2019. 369 370 ================= T I T L E A M E N D M E N T ================ 371 And the title is amended as follows: 372 Delete everything before the enacting clause 373 and insert: 374 A bill to be entitled 375 An act relating to deferred presentment transactions; 376 amending s. 560.402, F.S.; providing and revising 377 definitions; amending s. 560.404, F.S.; specifying the 378 maximum face amount of checks that may be taken for 379 deferred presentment installment transactions, 380 exclusive of fees; specifying the maximum rate and 381 frequency of fees that deferred presentment providers 382 or their affiliates may charge on deferred presentment 383 installment transactions; specifying when fees are 384 earned for certain deferred presentment transactions; 385 specifying the calculation of fees earned for deferred 386 presentment installment transactions; prohibiting 387 prepayment penalties; specifying the minimum and 388 maximum terms of a deferred presentment installment 389 transaction; specifying dates that checks must bear; 390 authorizing providers of deferred presentment 391 installment transactions to accept additional checks 392 subject to certain limitations; requiring the deferred 393 presentment agreement to include the deferment period 394 applicable to each check; correcting a reference to 395 federal law; providing an exception to a prohibition 396 against the acceptance or holding of undated checks or 397 checks with certain dates by a deferred presentment 398 provider or its affiliate; conforming a cross 399 reference; providing a verification process that may 400 be relied upon under certain conditions; revising a 401 notice in deferred presentment agreements; authorizing 402 a drawer to inform a provider in writing that the 403 drawer cannot redeem or pay in full the amount due and 404 owing to the provider; providing an exception to a 405 prohibition, under certain circumstances, against a 406 deferred presentment provider’s deposit or presentment 407 of a drawer’s check; requiring a provider of a 408 deferred presentment installment transaction to allow 409 a drawer to defer one scheduled payment under certain 410 circumstances; providing requirements for the deferred 411 payment; specifying the frequency a certain fee may be 412 imposed by Financial Services Commission rule for data 413 on certain transactions submitted by deferred 414 presentment providers to a certain database; providing 415 an exception to a limitation on a deferred presentment 416 provider’s acceptance of a certain check or 417 authorization; specifying requirements for 418 amortization, installment repayments, and the 419 calculation of charges for deferred presentment 420 installment transactions; conforming provisions to 421 changes made by the act; amending s. 560.405, F.S.; 422 providing an exception to a prohibition against a 423 deferred presentment provider’s or its affiliate’s 424 presentment of a drawer’s check before the end of the 425 deferment period; revising a condition under which a 426 deferred presentment provider may allow the check to 427 be redeemed in lieu of presentment; revising a 428 prohibition against requiring a drawer to redeem his 429 or her check before the agreed-upon date; reenacting 430 s. 560.111(5), F.S., relating to prohibited acts, to 431 incorporate the amendments made to ss. 560.404 and 432 560.405, F.S., in references thereto; providing an 433 effective date.