The proposed rules: 1) revise the consumer complaint form to conform to statutory requirements; 2) adopt books and records requirements for consumer collection agencies as authorized by Section 559.5556, F.S.; and 3) establish guidelines for ...

DEPARTMENT OF FINANCIAL SERVICES
Finance

Rule No.: RULE TITLE
69V-180.040: Consumer Collection Agency Complaint Form and Procedures
69V-180.070: Location of Records
69V-180.080: Consumer Collection Agency Records
69V-180.090: Consumer Collection Agency Records Destruction
69V-180.100: Guidelines for Imposing Administrative Penalties
PURPOSE AND EFFECT: The proposed rules: 1) revise the consumer complaint form to conform to statutory requirements; 2) adopt books and records requirements for consumer collection agencies as authorized by Section 559.5556, F.S.; and 3) establish guidelines for imposing administrative penalties as required by Section 559.730(3), F.S.
SUBJECT AREA TO BE ADDRESSED: Regulation of Consumer Collection Practices.
SPECIFIC AUTHORITY: 559.725(3), 559.5556, 559.730(3) FS.
LAW IMPLEMENTED: 559.5556, 559.565(1), 559.72, 559.725(6), 559.730(3) FS.
IF REQUESTED IN WRITING AND NOT DEEMED UNNECESSARY BY THE AGENCY HEAD, A RULE DEVELOPMENT WORKSHOP WILL BE NOTICED IN THE NEXT AVAILABLE FLORIDA ADMINISTRATIVE WEEKLY.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE DEVELOPMENT AND A COPY OF THE PRELIMINARY DRAFT, IF AVAILABLE, IS: Andy Grosmaire, Chief, Bureau of Finance Regulation, Office of Financial Regulation, The Fletcher Building, 200 E. Gaines Street, Tallahassee, Florida 32399, [phone], [e-mail]. It is requested that persons who are interested in a rule development workshop notify the Office within 14 days of the date of this notice.

THE PRELIMINARY TEXT OF THE PROPOSED RULE DEVELOPMENT IS:

69V-180.040 Consumer Collection Agency Complaint Form and Procedures.

Each consumer desiring to file a complaint against a consumer collection agency shall submit to the Office of Financial Regulation a completed complaint form, Form OFR-CCA-103, effective_______2-15-94, which is hereby incorporated by reference and available by mail from the Office of Financial Regulation, Division of Finance, Fletcher Building, 200 East Gaines Street, Tallahassee, Florida 32399-0376, or online at http://www.flofr.com. of Agriculture and Consumer Services, Division of Consumer Services, Mayo Building, Tallahassee, Florida 32399-0800. Such form shall be filed with the Office of Financial Regulation, 200 East Gaines Street, Tallahassee, Florida 32399-0376 32399-0375.

Rulemaking Specific Authority 559.725(3) 17.29 FS. Law Implemented 559.72, 559.725(3) 559.725 FS. History–New 2-15-94, Formerly 3D-180.040, Amended________.

 

69V-180.070 Location of Records.

(1) A registrant may maintain the required books, accounts, records, documents, and receipts at a location other than the principal place of business. The registrant must notify the Office in writing prior to said books, accounts, records, documents, and receipts being maintained in any place other than the designated principal place of business. Such notification shall be submitted to the Office of Financial Regulation, 200 East Gaines Street, Tallahassee, Florida 32399-0376.

(2) If the Office is notified by a registrant that it will maintain the books, accounts, records, documents, and receipts at a location other than the principal place of business, such books, accounts, records, documents, and receipts shall be made available to the Office for review within 3 business days from the date of a written request by the Office and at the Tallahassee site of the Office of Financial Regulation or at a mutually agreeable location.

(3) All books, accounts, records, documents, and receipts must be maintained for at least 3 years from the date the consumer satisfied the debt being collected or the registrant has ceased collection efforts from the consumer.

Rulemaking Authority 559.5556 FS. Law Implemented 559.5556 FS. History–New________.

 

69V-180.080 Consumer Collection Agency Records.

A registrant shall, at a minimum, maintain all records specified in this rule. Records shall be kept current to within one week of the current date. Computerized records that contain the equivalent of the information required to be maintained by this rule are acceptable. The following records shall be maintained:

(1) In accordance with the two-party consent requirement of Section 934.03, Florida Statutes, each registrant shall record all incoming and outgoing phone calls when collecting or attempting to collect a debt. Each recorded phone call shall note the following:

(a) The full name of the consumer attempting to be contacted or contacting the registrant;

(b) The day the phone call was placed or received;

(c) The time the phone call was placed or received;

(d) The phone number dialed if placing an outgoing phone call;

(e) The disposition of the phone call;

(f) The person making the phone call on behalf of the registrant.

(g) In addition, each registrant shall maintain an audible recording of all incoming and outgoing phone calls when collecting or attempting to collect a debt.

(2) A copy of the contract or agreement that the registrant will use with its creditors.

(3) Records relating to the referrals made by a creditor to the registrant, identifying the name of the debtors, and the amount of the debt owed by each.

(4) The debtor’s account of activity disclosing the following:

(a) The name and address of the debtor;

(b) The date that the account was referred/acquired and account number;

(c) The actual amount of the claim submitted by the creditor;

(d) The name and address of the creditor or a means of identifying this information by code or account number; and

(e) A record of payments made by the debtor, including the date received and the amount and balance owing;

(5) A debtor’s receipt for cash payments made to the registrant. The document shall provide space for recording:

(a) Name and address of registrant;

(b) Name of debtor;

(c) Date and amount of payment received;

(d) Balance owing;

(e) Name of the creditor; and

(f) Name of the person accepting payment.

(6) Documentation recording the dates and amounts of remittances by the registrant to the creditor.

(7) All form letters and stationery used by a registrant shall be maintained in a file and made available at all times for review by the Office of Financial Regulation.

(8) The name of the financial institution or institutions where the registrant’s accounts will be maintained, and the identifying numbers assigned by the financial institutions to the accounts.

(9) All written agreements executed between the registrant and the debtor after the account has been received from the creditor.

(10) Basic information about the debt including, at the minimum:

(a) Proof of indebtedness;

(b) The date the debt was incurred and the date of the last payment;

(c) The identity of the original creditor as known to the debtors;

(d) The amount of the debt principal and an itemization of all interest, fees, or charges added to it by the original creditor and all subsequent holders;

(e) The chain of title if the debt has been sold.

(11) A copy of all letters, emails, and correspondence, written or electronically sent to a debtor.

(12) All phone numbers used by a registrant shall be disclosed and maintained in a file and made available at all times for review by the Office of Financial Regulation.

Rulemaking Authority 559.5556 FS. Law Implemented 559.5556, 559.72 FS. History–New________.

 

69V-180.090 Consumer Collection Agency Records Destruction.

(1) A registrant must have written policies and procedures for the secure handling of all consumer documents and information received in the course of collecting a debt from a consumer. Such procedures must include, at a minimum, the following steps, as appropriate:

(a) A secure method of destroying consumer information, such as those prescribed in 16 C.F.R. Part 682 (2010), which relates to disposal of consumer report information and records under section 216 of the Fair and Accurate Credit Transactions Act of 2003.

(b) Maintaining records of the destruction including which records were destroyed, when were the records destroyed, where were the records destroyed, and who destroyed the records.

(2) The federal regulations referenced in this rule are incorporated by reference and may be obtained by mail from the Office of Financial Regulation, Division of Finance, 200 E. Gaines Street, Tallahassee, Florida 32399-0376. Copies of the Code of Federal Regulation are also available online through the U.S. Government Printing Office via GPO Access: http://www.gpoaccess.gov/cfr/index.html.

Rulemaking Authority 559.5556 FS. Law Implemented 559.5556 FS. History–New________.

 

69V-180.100 Guidelines for Imposing Administrative Penalties.

Pursuant to Section 559.730(3), F.S., listed below are guidelines applicable to each ground for disciplinary action that may be imposed by the Office against a person for a violation of Part VI, Chapter 559, F.S. In determining an appropriate penalty within the range of penalties prescribed in this rule for each occurrence as based upon the violation, the Office shall consider the circumstances set forth in subsection (25).

 

	Statute	Violation Description	1st Occurrence	2nd Occurrence	3rd & Subsequent Occurrences
(1)	559.565(1)	An out-of-state consumer debt collector who collects or attempts to collect consumer debts in this state without first registering in accordance with this part.	Fine: B Cease and Desist	Fine: C Cease and Desist
(2)	559.72(1)	Simulate in any manner a law enforcement officer or a representative of any governmental agency.	Fine: A	Fine: B Suspension: A	Fine: C Revocation
(3)	559.72(2)	Use or threaten force or violence.	Fine: B Suspension: C	Fine: C Revocation
(4)	559.72(3)	Tell a debtor who disputes a consumer debt that she or he or any person employing her or him will disclose to another, orally or in writing, directly or indirectly, information affecting the debtor’s reputation for credit worthiness without also informing the debtor that the existence of the dispute will also be disclosed	Fine: A	Fine: B Suspension: B	Fine: C Revocation
(5)	559.72(4)	Communicate or threaten to communicate with a debtor’s employer before obtaining final judgment against the debtor	Fine: A	Fine: B Suspension: C	Fine: C Revocation
(6)	559.72(5)	Disclose to a person other than the debtor or her or his family information affecting the debtor’s reputation, whether or not for credit worthiness, with knowledge or reason to know that the other person does not have a legitimate business need for the information or that the information is false	Fine: A	Fine: B Suspension: C	Fine: C Revocation
(7)	559.72(6)	Disclose information concerning the existence of a debt known to be reasonably disputed by the debtor without disclosing that fact or failed to notify within 30 days the details of the dispute to each person to whom disclosure was made	Fine: A	Fine: B Suspension: B	Fine: C Revocation
(8)	559.72(7)	Willfully communicate with the debtor or any member of her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her or his family	Fine: A	Fine: B	Fine: C Revocation
(9)	559.72(8)	Use profane, obscene, vulgar, or willfully abusive language in communicating with the debtor or any member of her or his family	Fine: A	Fine: B Suspension: C	Fine: C Revocation
(10)	559.72(9)	Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate or assert the existence of some other legal right when such person knows that the right does not exist	Fine: B Suspension: B	Fine: C Revocation
(11)	559.72(10)	Use a communication that simulates in any manner legal or judicial process or that gives the appearance of being authorized, issued or approved by a government, governmental agency, or attorney at law, when it is not	Fine: A	Fine: B Suspension: C	Fine: C Revocation
(12)	559.72(11)	Communicate with a debtor under the guise of an attorney by using the stationery of an attorney or forms or instruments that only attorneys are authorized to prepare	Fine: B	Fine: C Suspension: C	Fine: C Revocation
(13)	559.72(12)	Orally communicate with a debtor in a manner that gives the false impression or appearance that such person is or is associated with an attorney	Fine: A	Fine: B Suspension: C	Fine: C Revocation
(14)	559.72(13)	Advertise for sale any debt as a means to enforce payment except under court order or when acting as an assignee for the benefit of a creditor	Fine: B Suspension	Fine: C Revocation
(15)	559.72(13)	Threaten to advertise for sale any debt as a means to enforce payment except under court order or when acting as an assignee for the benefit of a creditor	Fine: A	Fine: B Suspension: C	Fine: C Revocation
(16)	559.72(14)	Publish or post, or cause to be published or posted before the general public individual names or any list of names of debtors, commonly known as a deadbeat list, for the purpose of enforcing or attempting to enforce collection of consumer debts	Fine: B Suspension: C	Fine: C Revocation
(17)	559.72(14)	Threaten to publish or post before the general public individual names or any list of names of debtors, commonly known as a deadbeat list, for the purpose of enforcing or attempting to enforce collection of consumer debts	Fine: A	Fine: B Suspension: C	Fine: C Revocation
(18)	559.72(15)	Refuse to provide adequate identification of herself or himself or her or his employer or other entity whom she or he represents if requested to do so by a debtor from whom she or he is collecting or attempting to collect a consumer debt	Fine: A	Fine: B Suspension: C	Fine: C Revocation
(19)	559.72(16)	Mail any communication to a debtor in an envelope or postcard with words typed, written, or printed on the outside of the envelope or postcard calculated to embarrass the debtor	Fine: B	Fine: C Suspension: C	Fine: C Revocation
(20)	559.72(17)	Communicate with the debtor between the hours of 9 p.m. and 8 a.m. in the debtor’s time zone without the prior consent of the debtor	Fine: A	Fine: B Suspension: C	Fine: C Revocation
(21)	559.72(18)	Communicate with a debtor if the person knows that the debtor is represented by an attorney with respect to such debt	Fine: A	Fine: B Suspension: C	Fine: C Revocation
(22)	559.72(19)	Cause a debtor to be charged for communications by concealing the true purpose of the communication	Fine: A	Fine: B Suspension: C	Fine: C Revocation
(23)	559.725(6)	Failure to provide a written response to a consumer complaint within 45 days of written request	$150 per day	$200 per day	$250 per day

 

(24) In accordance with this rule:

(a) Depending on the severity and repetition of specific violations, the Office may impose an administrative fine, suspension of a person, or revocation of a person or any combination thereof;

(b) The Office may impose a cease and desist order in conjunction with and in addition to any of the designated sanctions set forth in this rule when appropriate under the circumstances; and

(c) The Office will consider the person’s disciplinary history for the past five years in determining an appropriate penalty, and may impose a more severe penalty when the disciplinary history includes past violations.

(25) In accordance with Section 559.730, F.S., the Office shall consider the following circumstances in determining an appropriate penalty within the range of penalties prescribed in this rule for each violation. The Office also shall consider these circumstances when determining whether a deviation from the range of sanctions prescribed in the disciplinary guidelines is warranted:

(a) The degree of harm to the public;

(b) The disciplinary history of the person;

(c) Whether the person detected and voluntarily instituted corrective responses or measures to avoid the recurrence of a violation prior to detection and intervention by the Office;

(d) Whether the person’s violation was the result of willful misconduct or recklessness;

(e) Whether at the time of the violation, the person had developed and implemented reasonable supervisory, operational or technical procedures, or controls to avoid the violation;

(f) Whether the person attempted to conceal the violation or mislead or deceive the Office;

(g) The length of time over which the person engaged in the violations; and

(h) Other relevant, case-specific circumstances.

(26) The list of violations cited in this rule is intended to be comprehensive, but the omission of a violation from the list does not preclude the Office from taking any action authorized by Section 559.730, F.S.

(27) The ranges for administrative fines imposed by this rule are $1,000 to $3,500 for an “A” level fine; $3,500 to $7,500 for a “B” level fine; and $7,500 to $10,000 for a “C” level fine.

(28) The ranges for suspensions imposed by this rule are 3 to 10 days for an “A” level suspension; 10 to 20 days for a “B” level suspension; and 20 to 30 days for a “C” level suspension. However, the Office may, by order, impose a period of suspension shorter or longer than these ranges.

(29) A previous “occurrence” is the same or similar misconduct which was the subject of a Final Order entered by the Office prior to the acts or omissions which are the subject of the current action by the Office.

Rulemaking Authority 559.730(3) FS. Law Implemented 559.565(1), 559.72, 559.725(6), 559.730 FS. History–New________.