69V-180.040: Consumer Collection Agency Complaint Form and Procedures
69V-180.080: Consumer Collection Agency Records
69V-180.090: Consumer Collection Agency Records Retention and 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; 3) provide guidance regarding the retention and destruction of records; and 4) establish guidelines for imposing administrative penalties.
SUMMARY: The proposed rules: 1) revise the consumer complaint form to conform to statutory requirements; 2) adopt books and records requirements for consumer collection agencies; 3) provide guidance regarding the retention and destruction of records; and 4) establish guidelines for imposing administrative penalties.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: The Agency has determined that the proposed rules will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. SERCs have been prepared by the agency, which are summarized as follows. The proposed rules are not likely to: 1) directly or indirectly have an adverse impact on economic growth, private sector job creation or employment, or private sector investment in excess of $1 million in the aggregate within 5 years after the implementation of the rule; 2) directly or indirectly have an adverse impact on business competitiveness, including the ability of persons doing business in the state to compete with persons doing business in other states or domestic markets, productivity, or innovation in excess of $1 million in the aggregate within 5 years after the implementation of the rule; or 3) directly or indirectly increase regulatory costs, including any transactional costs, in excess of $1 million in the aggregate within 5 years after the implementation of the rule. Accordingly, the Agency has determined that the proposed rules will not require legislative ratification. In addition, the proposed rules do not impose additional costs on the Office; nor do they impose any additional costs on any state or local government entity. There are no anticipated transactional costs and the Office does not foresee any adverse impact on small businesses, small counties or small cities. Rule 69V-180.040, F.A.C., applies to persons wishing to file complaints against consumer collection agencies. Rules 69V-180.080, .090, and .100, F.A.C., apply to consumer collection agencies.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
RULEMAKING 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 WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE SCHEDULED AND ANNOUNCED IN THE FAW.
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Andy Grosmaire, Chief, Bureau of Finance Regulation, Office of Financial Regulation, The Fletcher Building, 200 E. Gaines Street, Tallahassee, Florida 32399, (850)410-9848, andy.grosmaire@flofr.com
THE FULL TEXT OF THE PROPOSED RULE 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___________, available at http://www.flrules.org/Gateway/reference.asp?No=Ref-00310 2-15-94, which is hereby incorporated by reference and available by mail from the Office of Financial Regulation 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. HistoryNew 2-15-94, Formerly 3D-180.040, Amended________.
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) A copy of the contract or agreement that the registrant will use with its creditors.
(2) 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.
(3) The debtors account of activity disclosing the following:
(a) The name and address of the debtor;
(b) The date that the account was referred or acquired and the 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;
(f) A record of outbound contacts or attempted contacts by the registrant with the debtor including:
1. The full name of the debtor;
2. The date and time the contact was placed or received;
3. The phone number dialed if placing an outgoing phone call;
4. The disposition of the phone call;
5. The name of the person (or alias name of the person) making or attempting to make contact.
(4) A debtors 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.
(5) Documentation recording the dates and amounts of remittances by the registrant to the creditor.
(6) 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.
(7) The name of the financial institution or institutions where the registrants accounts will be maintained, and the identifying numbers assigned by the financial institutions to the accounts.
(8) All written agreements executed between the registrant and the debtor after the account has been received from the creditor.
(9) Basic information about the debt including, at the minimum:
(a) Documentation of the debt provided by the creditor;
(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.
(10) A copy of all letters, emails, and correspondence, written or electronically sent to a debtor.
(11) 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. HistoryNew________.
69V-180.090 Consumer Collection Agency Records Retention and Destruction.
(1) 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.
(2) 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 (2011), which relates to disposal of consumer report information and records under section 216 of the Fair and Accurate Credit Transactions Act of 2003. Federal regulation 16 C.F.R. Part 682 (2011), available at https://www.flrules.org/Gateway/reference.asp?No=Ref-00311, is incorporated by reference in this rule.
(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.
Rulemaking Authority 559.5556 FS. Law Implemented 559.5556 FS. HistoryNew________.
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) |
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) |
Simulate in any manner a law enforcement officer or a representative of any governmental agency. |
Fine: A |
Fine: B |
Fine: C Revocation | |
|
(3) |
Use or threaten force or violence. |
Fine: B |
Fine: C Revocation |
| |
|
(4) |
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 debtors reputation for credit worthiness without also informing the debtor that the existence of the dispute will also be disclosed. |
Fine: A |
Fine: B |
Fine: C Revocation | |
|
(5) |
Communicate or threaten to communicate with a debtors employer before obtaining final judgment against the debtor. |
Fine: A |
Fine: B |
Fine: C Revocation | |
|
(6) |
Disclose to a person other than the debtor or her or his family information affecting the debtors 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 |
Fine: C Revocation | |
|
(7) |
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 |
Fine: C Revocation | |
|
(8) |
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) |
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 |
Fine: C Revocation | |
|
(10) |
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 |
Fine: C Revocation |
| |
|
(11) |
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 |
Fine: C Revocation | |
|
(12) |
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 |
Fine: C Revocation | |
|
(13) |
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 |
Fine: C Revocation | |
|
(14) |
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 |
Fine: C Revocation |
| |
|
(15) |
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 |
Fine: C Revocation | |
|
(16) |
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 |
Fine: C Revocation |
| |
|
(17) |
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 |
Fine: C Revocation | |
|
(18) |
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 |
Fine: C Revocation | |
|
(19) |
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 |
Fine: C Revocation | |
|
(20) |
Communicate with the debtor between the hours of 9 p.m. and 8 a.m. in the debtors time zone without the prior consent of the debtor. |
Fine: A |
Fine: B |
Fine: C Revocation | |
|
(21) |
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 |
Fine: C Revocation | |
|
(22) |
Cause a debtor to be charged for communications by concealing the true purpose of the communication. |
Fine: A |
Fine: B |
Fine: C Revocation | |
|
(23) |
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, a suspension, or both 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 persons 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 persons 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) 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. HistoryNew________.
