This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h0123.IBS
DATE: 11/29/2021
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 123 Consumer Finance Loans
SPONSOR(S): Stevenson
TIED BILLS: IDEN./SIM. BILLS: SB 546
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Insurance & Banking Subcommittee Hinshelwood Luczynski
2) Commerce Committee
SUMMARY ANALYSIS
The Florida Consumer Finance Act, ch. 516, F.S., permits licensed lenders to make secured or unsecured
loans up to $25,000 with a tiered interest rate structure such that the maximum annual interest rate allowed on
each tier decreases as principle amounts increase:
30 percent on the first $3,000.
24 percent on principal above $3,000 and up to $4,000.
18 percent on principal above $4,000 and up to $25,000.
Consumer finance lenders must maintain liquid assets of at least $25,000 per location. The bill authorizes
consumer finance lenders to provide a surety bond, certificate of deposit, or letter of credit of a specified amount
in lieu of maintaining liquid assets.
Consumer finance lenders are permitted to charge a borrower certain fees, including up to $25 for investigating
the credit and character of the borrower. The exclusion of “prepayment penalties” from the list of permissible
fees implies that consumer finance lenders are prohibited from charging prepayment penalties. The bill provides
an express prohibition on prepayment penalties for consumer finance loans.
The bill has no fiscal impact on state or local governments and an indeterminate but likely positive impact on the
private sector.
The bill provides an effective date of October 1, 2022. STORAGE NAME: h0123.IBS PAGE: 2
DATE: 11/29/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Consumer Finance Loans
The Office of Financial Regulation’s (OFR’s) Division of Consumer Finance is responsible for the
licensing and regulation of non-depository financial service entities and individuals, and conducts
examinations and complaint investigations for licensed entities to determine compliance with Florida
law.
One of the loan products regulated by the OFR’s Division of Consumer Finance is the Florida
Consumer Finance Act, ch. 516, F.S. (“the Act”). Loans permitted under the Act are commonly referred
to as “consumer finance loans”, which are “loan[s] of money, credit, goods, or choses in action,
1
including, except as otherwise specifically indicated, provision of a line of credit, in an amount or to a
value of $25,000 or less for which the lender charges, contracts for, collects, or receives interest at a
rate greater than 18 percent per annum.”
2
Although consumer finance loans may be secured or
unsecured, the Act prohibits lenders from taking a security interest in certain types of collateral.
3
Consumer finance loans made pursuant to the Act must be repaid in periodic installments as nearly
equal as mathematically practicable, except that the final payment may be less than the amount of the
prior installments.
4
Installments may be due every two weeks, semimonthly, or monthly.
5
There is no
minimum or maximum loan term under the Act. Consumer finance loans have a tiered interest rate
structure such that the maximum annual interest rate allowed on each tier decreases as principle
amounts increase:
30 percent on the first $3,000.
24 percent on principal above $3,000 and up to $4,000.
18 percent on principal above $4,000 and up to $25,000.
6
The original principal amount is the amount financed, as defined by the federal Truth in Lending Act
(TILA)
7
and TILA’s federal implementing regulations.
8
For the purpose of determining compliance with
these statutory maximum interest rates, the interest rate computations used must be simple interest.
9
In
the event that two or more interest rates are applied to the principal amount of a loan,
10
a lender may
charge interest at a single annual percentage rate (APR) which would produce at maturity the total
amount of interest as permitted by the tiered interest rate structure above.
11
The APR charged by a
lender may not exceed the APR that must be computed and disclosed according to TILA and its
1
“Chose in action” is defined as “1. A property right in personam, such as a debt owed by another person . . . 2. The right
to bring an action to recover a debt, money, or thing. 3. Personal property that one person owns but another person
possesses, the owner being able to regain possession through a lawsuit.” BLACK’S LAW DICTIONARY 101 (3d ed. 1996).
2
S. 516.01(2), F.S.
3
See s. 516.031(1), F.S. (prohibition on taking a security interest in land for a loan less than $1,000); s. 516.17, F.S.
(prohibition on assignment of, or order for payment of, wages given to secure a loan).
4
S. 516.36, F.S. This section does not apply to lines of credit.
5
Id.
6
S. 516.031(1), F.S.
7
Codified at 15 U.S.C. § 1601 et seq.
8
Currently, the statute references TILA’s implementing regulations as “Regulation Z of the Board of Governors of the
Federal Reserve System.” s. 516.031(1), F.S. However, the Dodd-Frank Wall Street Reform and Consumer Protection
Act, Pub. L. No. 111-203, H.R. 4173, 124 Stat. 1376-2223, 111th Cong. (July 21, 2010), commonly referred to as the
“Dodd-Frank Act”, transferred rulemaking authority for TILA to the Bureau of Consumer Financial Protection, effective July
21, 2011. See also Truth in Lending (Regulation Z), 76 Fed. Reg. 79768 (Dec. 22, 2011).
9
Id.
10
For example, on a principle amount of $3,500, an interest rate of 30 percent per annum may be applied to $3,000 of the
principle amount, and an interest rate of 24 percent per annum may be applied to the remaining $500 of the principal
amount.
11
S. 516.031(1), F.S. STORAGE NAME: h0123.IBS PAGE: 3
DATE: 11/29/2021
implementing regulations.
12
A licensee may not induce or permit a borrower to divide a loan and may
not induce or permit a person to become obligated to the licensee under more than one loan contract
for the purpose of obtaining a greater finance charge than would otherwise be permitted under the
parameters described above.
13
If consideration for a new loan contract includes the unpaid principal balance of a prior loan with the
licensee, then the principal amount of the new loan contract may not include more than 60 days’ unpaid
interest accrued on the prior loan.
14
The Act prohibits lenders from directly or indirectly charging borrowers additional fees as a condition to
the grant of a loan, except for the following allowable fees:
Up to $25 for investigating the credit and character of the borrower;
A $25 annual fee on the anniversary date of each line-of-credit account;
Brokerage fees for certain loans, title insurance, and appraisals of real property offered as
security;
Intangible personal property tax on the loan note or obligation if secured by a lien on real
property;
Documentary excise tax and lawful fees for filing, recording, or releasing an instrument securing
the loan;
The premium for any insurance in lieu of perfecting a security interest otherwise required by the
licensee in connection with the loan;
Actual and reasonable attorney fees and court costs;
Actual and commercially reasonable expenses for repossession, storing, repairing and placing
in condition for sale, and selling of any property pledged as security;
Depending on the frequency of payments, a delinquency charge of up to $15 for each payment
in default for at least 10 days, if agreed upon in writing before the charge is imposed; and
A bad check charge of up to $20.
15
The exclusion of “prepayment penalties” from the list of permissible fees implies that consumer finance
lenders are prohibited from charging prepayment penalties.
16
Optional credit property, credit life, and disability insurance may be provided at the borrower’s expense
via a deduction from the principal amount of the loan.
17
Licenses granted under the Act are for a single place of business
18
and must be renewed every two
years.
19
As of October 28, 2021, there are 188 licensed consumer finance loan companies operating
across a total of 389 locations in Florida.
20
The historical yearly licensing data for ch. 516, F.S., is contained in the charts below.
Chapter 516, F.S., Licenses by Year
00-01 01-02 02-03 03-04 04-05 05-06 06-07 07-08 08-09 09-10
Applications Received 318 44 136 82 48 72 192 30 52 32
Applications Approved 228 136 125 76 43 64 95 29 18 19
Active Licenses 589 607 568 609 532 584 626 600 390 386
12
S. 516.031(2), F.S.
13
S. 516.031(4), F.S.
14
S. 516.031(5), F.S.
15
S. 516.031(3), F.S.
16
Id.; Office of Financial Regulation, Agency Analysis of 2022 Senate Bill 546, pp. 2-3 (Nov. 19, 2021).
17
S. 516.35(2), F.S.
18
Ss. 516.01(1) and 516.05(3), F.S.
19
Ss. 516.03(1) and 516.05(1) & (2), F.S.
20
Office of Financial Regulation, supra note 16 at p. 2. STORAGE NAME: h0123.IBS PAGE: 4
DATE: 11/29/2021
Renewals & Reactivations 496 1 542 0 523 1 569 0 388 0
Chapter 516, F.S., Licenses by Year (Cont'd)
10-11 11-12 12-13 13-14 14-15 15-16 16-17 17-18 18-19 19-20
Applications Received 175 41 82 116 66 102 55 96 109 100
Applications Approved 137 37 53 113 37 81 36 83 104 98
Active Licenses 347 303 293 349 331 349 338 373 348 390
Renewals & Reactivations 226 0 258 0 312 0 326 0 342 0
An application to become a consumer finance lender must be accompanied by a nonrefundable
application fee of $625 and a nonrefundable investigation fee of $200.
21
Licenses must be renewed
biennially, at which time the licensee must pay a nonrefundable biennial license fee of $625.
22
At the
time of application, the applicant must provide evidence of liquid assets of at least $25,000, and a
licensee must at all times maintain such liquid assets.
23
Each location of a consumer finance lender
must be separately licensed.
24
The Act does not apply to persons doing business under state or federal laws governing banks, savings
banks, trust companies, building and loan associations, credit unions, or industrial loan and investment
companies.
25
Deferred Presentment Transactions (Payday Loans)
Although the bill relates only to consumer finance loans under ch. 516, F.S., questions often arise as to
how consumer finance loans compare to other consumer loans authorized in statute, particularly
payday loans. Deferred presentment transactions, commonly referred to as “payday loans”, are a small-
dollar loan product under the OFR’s regulatory authority. These transactions are governed by ch. 560,
part IV, F.S.
A deferred presentment transaction means providing currency or a payment instrument in exchange for
a drawer’s (borrower’s) check and agreeing to hold the check for a number of days until depositing,
presenting, or redeeming the payment instrument.
26
The only persons who may engage in deferred
presentment transactions are financial institutions as defined in s. 655.005, F.S.,
27
and money services
business licensed under ch. 560, part II
28
or part III,
29
F.S.
There are two types of payday loan products permitted in Florida:
21
S. 516.03(1), F.S.
22
Id.; s. 516.05(1), F.S.
23
Ss. 516.03(1) and 516.07(1)(b), F.S.
24
S. 516.05(3), F.S.
25
S. 516.02(4), F.S.
26
S. 560.402(2) & (3), F.S.
27
Section 655.005, F.S., defines a “financial institution” to mean a state or federal savings or thrift association, bank,
savings back, trust company, international bank agency, international banking corporation, international branch,
international representative office, international administrative office, international trust entity, international trust company
representative office, qualified limited service affiliate, credit union, or an agreement corporation operating pursuant to s.
25 of the Federal Reserve Act, 12 U.S.C. ss. 601 et seq. or Edge Act corporation organized pursuant to s. 25(a) of the
Federal Reserve Act, 12 U.S.C. ss. 611 et seq.
28
Licensure as a money transmitter. A money transmitter is defined by s. 560.103(23), F.S., as a corporation, limited
liability company, limited liability partnership, or foreign entity qualified to do business in this state which receives
currency, monetary value, or payment instruments for the purpose of transmitting the same by any means, including
transmission by wire, facsimile, electronic transfer, courier, the Internet, or through bill payment services or other
businesses that facilitate such transfer within this country, or to or from this country. Money transmitters may engage in
check cashing under ch. 560, part III, F.S.
29
Licensure as a check casher. A check casher is defined by s. 560.103(6), F.S., as a person who sells currency in
exchange for payment instruments received, except travelers checks. STORAGE NAME: h0123.IBS PAGE: 5
DATE: 11/29/2021
Deferred presentment transaction not repayable in installments: The face amount of a check
taken for deferred presentment may not exceed $500, exclusive of fees.
30
Fees may not exceed
10 percent of the payment provided to the drawer plus a verification fee of up to $5.
31
The term
of a deferred presentment agreement may not be less than seven days or greater than 31
days.
32
Deferred presentment installment transaction: A deferred presentment installment transaction is
repayable in installments, has a term of 60 to 90 days, and may have an outstanding transaction
balance (exclusive of fees) of up to $1,000.
33
The permissible fees are a verification fee of up to
$5 and up to 8 percent of the outstanding transaction balance on a biweekly basis.
34
The
installment periods must be 13 days to one calendar month, except that the first installment
period may be longer than the remaining installment periods by not more than 15 days.
35
Prepayment penalties are prohibited.
36
A deferred presentment provider may not enter into a deferred presentment transaction with a drawer
who has an outstanding deferred presentment transaction with any provider or within 24 hours of the
termination of a previous transaction.
37
In order to enforce this restriction, the OFR maintains a
database against which a deferred presentment provider must verify each transaction before entering
into the deferred presentment agreement.
38
A deferred presentment provider may not engage in the
rollover of a deferred presentment agreement and may not redeem, extend, or otherwise consolidate a
deferred presentment agreement with the proceeds of another deferred presentment transaction made
by it or an affiliate.
39
For deferred presentment transactions not repayable in installments, if the drawer, by the end of the
deferment period, informs the deferred presentment provider in person that the drawer cannot redeem
or pay in full in cash the amount due, the drawer must be given a grace period that extends the term of
the agreement for 60 additional days.
40
As a condition of receiving the grace period, the drawer must
make an appointment with a consumer credit counseling agency within seven days after the end of the
deferment period and complete counseling by the end of the grace period.
41
If the drawer in a deferred presentment installment transaction informs the deferred presentment
provider in writing or in person by noon of the business day before a scheduled payment that the
drawer cannot pay in full the scheduled payment, the provider must give the drawer one opportunity to
defer a scheduled payment for no additional fee or charge.
42
The deferred payment is due after the last
scheduled installment payment, at an interval which is no shorter than the intervals between the
originally scheduled payments.
43
Thus, for a deferred presentment installment transaction in which
payments are due once every two weeks, the deferred payment would be due at least two weeks after
the final installment payment is due.
A deferred presentment provider may not include in the agreement a hold harmless clause, a
confession of judgment clause, an assignment of or order for payment of wages or other compensation
for services, or a provision in which the drawer waives any claim or defense arising out of the
agreement or any provision of ch. 560, part IV, F.S.
44
A deferred presentment provider must comply
30
S. 560.404(5), F.S.
31
S. 560.404(6), F.S.
32
S. 560.404(8), F.S.
33
S. 560.404(5) & (8), F.S.
34
S. 560.404(6), F.S.
35
S. 560.404(26), F.S.
36
S. 560.404(6)(c), F.S.
37
S. 560.404(19), F.S.
38
S. 560.404(19)(a) & (23), F.S.
39
S. 560.404(18), F.S.
40
S. 560.404(22), F.S.
41
Id.
42
S. 560.404, F.S.
43
Id.
44
S. 560.404(10), F.S. STORAGE NAME: h0123.IBS PAGE: 6
DATE: 11/29/2021
with state and federal disclosure requirements.
45
Effect of the Bill
The bill amends various provisions related to consumer finance loans under ch. 516, F.S.
Surety Bond, Certificate of Deposit, or Letter of Credit in Lieu of Liquid Assets
The bill authorizes consumer finance lenders to provide the OFR a surety bond, certificate of deposit, or
irrevocable letter of credit in lieu of maintaining liquid assets. The surety bond must be issued by a
bonding company or insurance company authorized to do business in this state. The certificate of
deposit must be deposited in a financial institution.
46
The surety bond, certificate of deposit, or letter of credit must be in the amount of at least $25,000.
However, a company with multiple licensed locations is authorized to provide a rider or surety bond,
certificate of deposit, or letter of credit in the amount of at least $5,000 for each additional license after
the first. The aggregate amount of the surety bond, certificate of deposit, or letter of credit required for a
company with multiple licenses is capped at $100,000.
The surety bond, certificate of deposit, or letter of credit must name the OFR as beneficiary and must
be for the use and benefit of any borrower who is injured by acts of a licensee involving fraud,
misrepresentation, or deceit, including willful imposition of illegal or excessive charges; or
misrepresentation, circumvention, or concealment of any matter required to be stated or furnished to a
borrower, where such acts are in connection with making a consumer finance loan. The OFR, or any
claimant, may bring an action in a court of competent jurisdiction on the surety bond, certificate of
deposit, or letter of credit. The surety bond, certificate of deposit, or letter of credit must be payable on
a pro rata basis, but the aggregate amount may not exceed the amount of the surety bond, certificate of
deposit, or letter of credit.
The surety bond, certificate of deposit, or letter of credit may not be canceled by the licensee, bonding
or insurance company, or financial institution except upon notice to the OFR by certified mail. A
cancellation may not take effect until 30 calendar days after receipt by the OFR of the written notice.
If the bonding or insurance company or financial institution pays a claim, it must give written notice by
certified mail to the OFR within 10 calendar days after it pays the claim. The notice must contain details
sufficient to identify the claimant and the claim or judgment paid. If the principal sum of the surety bond,
certificate of deposit, or letter of credit is reduced by one or more recoveries or payments, the
consumer finance lender must furnish to the OFR a new or additional surety bond, certificate of deposit,
or letter of credit so that the total or aggregate principal sum equals the required amount. Alternatively,
a licensee may furnish an endorsement executed by the bonding or insurance company or financial
institution reinstating the required principal amount.
The required surety bond, certificate of deposit, or letter of credit must remain in place for two years
after the consumer finance lender ceases licensed operations in this state. During the two-year period,
the OFR may allow for a reduction or elimination of the surety bond, certificate of deposit, or letter of
credit to the extent the consumer finance lender’s outstanding consumer finance loans in this state are
reduced.
Failure to maintain the existing liquid asset requirement or the proposed alternatives of the surety bond,
certificate of deposit, or letter of credit in the required amount is grounds for denial of license application
and grounds for disciplinary action against a consumer finance lender.
The bill makes conforming changes under the Financial Technology Sandbox in s. 559.952, F.S.
45
S. 560.404(13) & (20), F.S.
46
As defined in s. 655.005(1)(i), F.S. STORAGE NAME: h0123.IBS PAGE: 7
DATE: 11/29/2021
Express Prohibition on Prepayment Penalties
The bill provides an express prohibition on prepayment penalties for consumer finance loans.
Effective Date
The bill provides an effective date of October 1, 2022.
Comparison Chart
Below is a chart comparing existing law regarding payday loans and consumer finance loans with the
changes proposed by the bill.
Payday Loans
(Ch. 560, Part IV, F.S.)
Consumer Finance Loans
(Ch. 516, F.S.)
Payday Loans
(Non-Installment)
Payday Loans
(Installment)
Current Law
HB 123
Proposed Changes
Loan
Amount
$500 (max) $1,000 (max) $25,000 (max) (No change)
Length of
Term
7 - 31 days 60 - 90 days No min. or max. (No change)
Payments
Lump sum at end
of loan term
Installments with
13 days to 1 month
in between each,
except that the first
installment period
may be longer than
the remaining
installment periods
by a maximum of 15
days
Installments due
monthly, semi-
monthly, or every 2
weeks
(No change)
Interest Rate
APR equivalent
(assuming $500 loan
amount and $5
verification fee):
129.52% for a 31 day
loan, 573.57% for a 7
day loan
8% biweekly on
the outstanding
transaction balance
APR equivalent:
approx. 208% (will be
slightly higher as a
result of the $5
verification fee)
30% per year on
the first $3,000 of
principal
24% per year on
principal above
$3,000 and up to
$4,000
18% per year on
principal above
$4,000 and up to
$25,000
(No change)
Other
Upfront Fees
Permitted
10% of loan
amount
$5 verification fee
No additional fees
permitted
$5 verification fee
No additional fees
permitted
Fees specified in s.
516.031(3), F.S.,
including up to $25
for investigating the
credit and character
of the borrower
No additional fees
permitted
Adds express
prohibition on
prepayment
penalties
B. SECTION DIRECTORY: STORAGE NAME: h0123.IBS PAGE: 8
DATE: 11/29/2021
Section 1. Amends s. 516.03, F.S., relating to application for license; fees; etc.
Section 2. Amends s. 516.031, F.S., relating to finance charge; maximum rates.
Section 3. Amends s. 516.05, F.S., relating to license.
Section 4. Amends s. 516.07, F.S., relating to grounds for denial of license or for disciplinary action.
Section 5. Amends s. 559.952, F.S., relating to Financial Technology Sandbox.
Section 6. Provides an effective date of October 1, 2022.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
None. The bill will require minimal changes to the OFR’s Regulatory Enforcement and Licensing
(REAL) system, but the cost of such changes can be implemented as part of the OFR’s existing
budget resources.
47
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill’s provisions that would allow a consumer finance lender to provide a surety bond, certificate of
deposit, or letter of credit in lieu of liquid assets may have a positive impact on consumer finance
lenders and consumers. Shifting from maintaining liquid assets will free up capital for lending activity. In
the event that consumer harm coincides with a consumer finance lender’s bankruptcy, the surety bond,
certificate of deposit, or letter of credit may provide consumers greater means of compensation as
compared to the liquid assets. The bill’s overall impact on the private sector, while likely positive, is
indeterminate.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.
2. Other:
47
Office of Financial Regulation, supra note 16 at p. 5. STORAGE NAME: h0123.IBS PAGE: 9
DATE: 11/29/2021
None.
B. RULE-MAKING AUTHORITY:
The bill expressly grants the Financial Services Commission
48
authority to prescribe by rule forms and
procedures to implement the provisions relating to a consumer finance lender providing a surety bond,
certificate of deposit, or letter of credit in lieu of liquid assets.
C. DRAFTING ISSUES OR OTHER COMMENTS:
The bill should be amended to clarify that the letter of credit must be issued by a financial institution.
IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
48
The Financial Services Commission (commission) is composed of the Governor, Attorney General, Chief Financial
Officer, and Commissioner of Agriculture. S. 20.121(3), F.S. The commission members are the OFR’s agency head for
the purpose of rulemaking. S. 20.121(3)(c), F.S.