The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Banking and Insurance
BILL: CS/SB 128
INTRODUCER: Senate Committee on Banking and Insurance and Senator Rodriguez
SUBJECT: Contacting Consumer Debtors
DATE: March 29, 2023
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Moody Knudson BI Fav/CS
2. AEG
3. FP
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 128 creates s. 559.721, F.S., to prohibit consumer collection agencies from contacting
for the purpose of collecting a debt: Victims of human trafficking and economic abuse; and
A debtor whose debt arose when the debtor was in foster care.
The bill’s prohibition on consumer debt collection requires victims of human trafficking to
provide copies of official documentation to creditors as proof that they are a crime victim. Such
victims and a debtor whose debt arose when he or she was in foster care also must provide the
creditor with an affidavit confirming certain information regarding the debt and how it was
incurred.
Victims of human trafficking who comply with these requirements may not be contacted by
creditors for one year from the date the affidavit is provided or indefinitely if the perpetrator of
the crime has been convicted of the reported offense.
The Office of Financial Regulation (OFR) is required to report certain information regarding
consumer complaints of an alleged violation of the new section to the appropriate regulatory
body, the Federal Government, or The Florida Bar.
The bill is effective July 1, 2023.
REVISED: BILL: CS/SB 128 Page 2
II. Present Situation:
Debt Collection Laws
Federal Fair Debt Collection Practices Act (the FDCPA)
The FDCPA was established as a result of abusive, deceptive, and unfair debt collection
practices.
1
The FDCPA is aimed at eliminating abusive debt collection practices by debt
collectors,
2
to ensure those that do not engage in abusive practices are not competitively
disadvantaged, and to promote consistent state action to protect consumers.
3,4
A debt collector who is attempting to acquire location information of the consumer must comply
with certain requirements, such as identify himself, state that he is confirming or correcting
location information, and identify his employer only if expressly asked.
5
With limited
exceptions, the FDCPA limits circumstances under which a debt collector may communicate
with a consumer
6
with respect to collecting any debt,
7,8
and restricts the individuals with whom a
debt collector may communicate about any debt.
9
If a consumer notifies a debt collector in
writing that he or she refuses to pay a debt or wishes to cease communication, the debt collector
must not communicate with the consumer except to notify the consumer of specified
information.
10
Except if the information is relayed during initial communications or the
consumer paid the debt, within five days after the initial communication with a consumer a debt
collector must provide the consumer with a written notice containing information related to the
debt.
11
The FDCPA prohibits a debt collector from engaging in any conduct that results in harassment,
oppression, or abuse of any person in collection of a debt, and specifies certain conduct which
constitutes a violation of this provision.
12
A debt collector also is prohibited from using any
1
15 U.S.C. s. 1692(a).
2
15 U.S.C. s. 1692a(6) defines “debt collector” as any person who uses any instrumentality of interstate commerce or the
mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to
collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding certain exclusions,
the term included any creditor who, in the process of collecting his debts, uses any name other than his own which would
indicate that a third person is collecting or attempting to collect such debts. For purposes of s. 1692f(6), the term includes any
person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the
enforcement of security interest. The term excludes certain persons, such as any officer or employee of a creditor.
3
15 U.S.C. s. 1692a(3) defines “consumer” as any natural person obligated or allegedly obligated to pay any debt.
4
15 U.S.C. s. 1692(c).
5
15 U.S.C. s. 1692b(1).
6
15 U.S.C. s. 1692b(d) defines “consumer,” for purposes of this section, to include the consumer’s spouse, parent (if the
consumer is a minor), guardian, executor, or administrator.
7
15 U.S.C. s. 1692a(5) defines “debt” as any obligation or alleged obligation of a consumer to pay money arising out of a
transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for
personal, family, or household purposes, whether or not such obligation has been reduced to judgment.
8
15 U.S.C. s. 1692c(a) (for instance, providing the time or place in which the communication may take place, and prohibiting
contact with the consumer who is represented by an attorney except for certain circumstances).
9
15 U.S.C. s. 1692c(b).
10
15 U.S.C. s. 1692c(c).
11
15 U.S.C. s. 1692g(a).
12
15 U.S.C. s. 1692d. BILL: CS/SB 128 Page 3
false, deceptive, or misleading representation or means in the collection of any debt, and the
FDCPA specifies conduct which constitutes a violation of this provision.
13
Any debt collector who violates these provisions is liable for actual damages, additional damages
up to $1,000 as a court allows, or certain amounts for class action suits.
14
When determining
liability, a court must consider, at a minimum, certain specified factors, such as the frequency
and persistence of noncompliance by the debt collector and the nature of noncompliance.
15
The Consumer Financial Protection Bureau (CFPB) must by regulation exempt from
requirements of the FDCPA any class of debt collection practices within any state if the Bureau
determines that the laws of such state are substantially similar to the provision of FDCPA and
have adequate provisions of enforcement.
16
Florida Consumer Collection Practices Act
The OFR is responsible for the regulation of banks, credit unions, other financial institutions,
finance companies, and securities.
17
The OFR has three divisions, including a Division of
Consumer Finance which is responsible for the administration and enforcement of ch. 559,
F.S.,
18
known as the Florida Consumer Collection Practices Act (FCCPA). The OFR registers
and regulates consumer collection agencies.
19,20
A person is prohibited from engaging in
business as a consumer collection agency without registering with the OFR and must renew such
registration annually.
21
The following persons or entities are not required to register with the
OFR:
An original creditor, that is any person who offers or extends credit creating a debt
22
or to
whom a debt is owed, but does not include any person to the extent that they receive an
assignment or transfer of a debt in default solely for the purpose of facilitating collection of
such debt for another;
23
A member of The Florida Bar;
13
15 U.S.C. s. 1692e.
14
15 U.S.C. s. 1692k(a).
15
15 U.S.C. s. 1692k(b).
16
15 U.S.C. s. 1692o.
17
Section 20.121(3)(a)2., F.S.
18
Section 494.0011(1), F.S.
19
Section 559.55(3), F.S., defines “consumer collection agency” as any debt collector or business entity engaged in the
business of soliciting consumer debts for collection or of collecting consumer debts, which debt collector or business is not
expressly exempted under s. 559.553(3), F.S. Section 559.55(7), F.S., defines “debt collector” as any person who uses any
instrumentality of commerce within this state, whether initiated from within or outside this state, in any business the principal
purpose of which is the collection of debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed
or due or asserted to be owed or due another. The term “debt collection” includes any creditor who, in the process of
collecting her or his own debts, uses any name other than her or his own which would indicate that a person is collecting or
attempting to collect such debts. The term does not include specified persons.
20
Section 559.554(1), F.S.
21
Section 559.553(1) and (2), F.S.
22
Section 559.55(7), F.S., defines “debt” or “consumer debt” as any obligation or alleged obligation of a consumer to pay
money arising out of a transaction in which the money, property, insurance, or services which are the subject of the
transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to
judgment.
23
Section 559.55(5), F.S. BILL: CS/SB 128 Page 4
A financial institution authorized to do business in this state and any wholly owned
subsidiary and affiliate;
A licensed real estate broker;
An insurance real estate broker;
An insurance company authorized to do business in this state;
A consumer finance company and any wholly owned subsidiary and affiliate;
A person licensed to pursuant to ch. 520, F.S.;
Certain out-of-state consumer debt collectors;
24
and
An FDIC-insured institution or subsidiary or affiliate.
25
An out-of-state consumer debt collector who is not exempt and who fails to register is subject to
an enforcement action by the state.
26
A person collecting consumer debts is prohibited from engaging in certain conduct, such as to:
Simulate a law enforcement officer or a representative of any governmental agency;
Use or threaten force or violence;
Tell a debtor who disputes a consumer debt that the person will disclose to another
information affecting the debtor’s reputation for credit worthiness without also informing the
debtor of certain information;
Communicate or threaten to communicate with a debtor’s employer before obtaining final
judgment against the debtor, unless certain circumstances exist;
Use profane, obscene, vulgar, or willfully abuse language in communicating with the debtor
or any of the debtor’s family members; and
Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not
legitimate.
27
A debtor
28
may bring a civil action against a person who violated any of the specified prohibited
acts.
29
Further a person who engages in any of the prohibited acts is liable for actual damages
and for additional statutory damages as the court may allow, but not exceeding $1,000 plus court
costs and reasonable attorney fees.
30
A court may order additional statutory damages for class
action suits, punitive damages, or other equitable relief as it deems necessary or proper.
31
The
court must consider the nature of the defendant’s noncompliance, the frequency and persistence
of the noncompliance, and the extent to which the noncompliance was intentional.
32
A person
may not be held liable if the person shows by a preponderance of the evidence that the violation
24
Section 559.55(11), F.S., defines “out-of-state consumer debt collector” as any person whose business activities in Florida
involve both collecting or attempting to collect consumer debt from debtors located in Florida by means of interstate
communication originating from outside this state and soliciting consumer debt accounts for collection from creditors who
have a business presence in Florida. For purposes of this subsection, a creditor has a business presence in Florida if either the
creditor or an affiliate or subsidiary of the creditor has an office in Florida.
25
Section 559.553(6), F.S.
26
Section 559.553(4), F.S. An out-of-state consumer debt collector who is the subject of an enforcement action is liable up to
$10,000, reasonable attorney fees, and court costs. Section 559.565(1), F.S.
27
Section 559.72, F.S.
28
Section 559.55(8), F.S., defines “debtor” or “consumer” as any natural person obligated or allegedly obligated to pay any
debt.
29
Section 559.77(1), F.S.
30
Section 559.77(2), F.S.
31
Id.
32
Id. BILL: CS/SB 128 Page 5
was not intentional and resulted from a bona fide error.
33
Any suit brought under s. 559.77(4),
F.S., must commence within 2 years after the date of the alleged violation.
34
A person who is registered or required to be registered in Florida as a consumer collection
agency is subject to disciplinary action for engaging in specified acts, such as fraud,
misrepresentation, concealment, or dishonest dealing by trick.
35
Potential penalties include, for
instance, issuance of a reprimand, suspension of registration, revocation of a registration, denial
of a registration, imposition of a fine of up to $10,000 for each count or separate offense, and an
administrative fine of up to $1,000 per day for each day that a person engages as a consumer
collection agency without a valid registration.
36
The OFR is responsible for receiving and maintaining records of complaints from consumers
concerning all persons who collect debts, including consumer collection agencies.
37
The OFR
must inform and furnish any relevant information to the appropriate regulatory body of Florida,
the federal government, or The Florida Bar, if a person has been named in a consumer complaint
alleging a violation of s. 559.72, F.S.
38
Human Trafficking
Human trafficking is a form of modern-day slavery.
39
Human trafficking victims are young
children, teenagers, and adults who may be citizens that are trafficked domestically within the
borders of the United States or smuggled across international borders worldwide.
40
Many human
trafficking victims are induced with false promises of financial or emotional security, but are
forced or coerced into commercial sex, domestic servitude, or other types of forced labor.
41
Any
minor person who is younger than 18 years old and who is induced to perform a commercial sex
act is a human trafficking victim even if there is no forced fraud or coercion.
42
Increasingly,
criminal organizations, such as gangs, are enticing local school children into commercial sexual
exploitation or trafficking.
43
The average ages of youth who are trafficked are 11-13 years old.
44
Congress passed the Victims of Trafficking and Violence Protection Act (Act) of 2000 to combat
human trafficking by establishing several methods of prosecuting traffickers, preventing
33
Section 559.77(3), F.S.
34
Section 559.77(4).
35
Section 559.730(1), F.S.
36
Section 559.730(2), F.S.
37
Section 559.725(1), F.S.
38
Section 559.772(2), F.S.
39
Section 787.06(1)(a), F.S.
40
Id.
41
The Department of Education (the DOE), Healthy Schools – Human Trafficking, available at
http://www.fldoe.org/schools/healthy-schools/human-trafficking.stml (last visited Mar. 25, 2023) (hereinafter cited as “DOE
Human Trafficking”).
42
Id.
43
Id.
44
The DOE, Presentation to the State Board of Education, Child Trafficking Prevention Education, p. 3, September 20, 2019,
available at http://www.fldoe.org/core/fileparse.php/5575/urlt/ChildTraffickingPres.pdf (last visited Mar. 25, 2023). BILL: CS/SB 128 Page 6
trafficking, and protecting victims.
45
The Act contains severe penalties and mandates restitution
for victims of human trafficking.
46
The U.S. Department of Justice reports that every two minutes a child is trafficked for the
purpose of sexual exploitation in the United States.
47
Approximately 24.9 million people are
human trafficking victims in the world.
48
There are approximately 2.5 million victims of human
trafficking in the United States.
49
Since 2007, the U.S. National Human Trafficking Hotline
(NHTH) has identified 82,301 cases of human trafficking with 164,839 victims being identified
in the cases.
50
Federal Regulation
The Code of Federal Regulation prohibits the inclusion of adverse information in consumer
reporting in cases of human trafficking victims.
51
The regulation prohibits consumer reporting
agencies from furnishing any consumer report that contains adverse information about a
consumer that resulted from a severe form of trafficking in persons or sex trafficking if certain
specified documents is provided to the consumer reporting agency.
52
Examples of acceptable
documentation include a determination made by a court of competent jurisdiction or a signed
statement by the consumer attesting that the consumer is a victim of trafficking if the document
is certified by specified certain entities (e.g. federal or state entity).
53
45
Pub. L. No. 106-386 (2000).
46
Id.
47
DOE Human Trafficking.
48
National Human Trafficking Hotline, What is Human Trafficking?, available at https://humantraffickinghotline.org/what-
human-trafficking (last visited Mar. 25, 2023).
49
DOE Human Trafficking.
50
NHTH, Hotline Statistics, available at https://humantraffickinghotline.org/states (last visited Mar. 25, 2023).
51
12 C.F.R. s. 1022.142
52
12 C.F.R. s. 1022.142(c).
53
12 C.F.R. s. 1022.142(b)(6). BILL: CS/SB 128 Page 7
Human Trafficking in Florida
Florida law defines “human trafficking” as transporting, soliciting, recruiting, harboring,
providing, enticing, maintaining,
54
purchasing, patronizing, procuring, or obtaining
55
another
person for the purpose of exploitation of that person.
56
In Florida, any person who knowingly, or
in reckless disregard of the facts, engages in human trafficking, or attempts to engage in human
trafficking, or benefits financially by receiving anything of value from participation in a venture
that has subjected a person to human trafficking for labor or services, or commercial sexual
activity, commits a crime.
57
Florida law sets out several circumstances which give rise to human
trafficking and specified penalties including, in part:
Labor
58
or services
59
of any child under the age of 18 or adult believed to be a child younger
than 18 years old commits a first degree felony;
60
Labor or services of any child under the age of 18 or adult believed to be a child younger
than 18 years old who is an unauthorized alien
61
commits a first degree felony;
62
Labor or services who does so by the transfer or transport of any child under the age of 18 or
an adult believed to be a child younger than 18 years old from outside of Florida to within
Florida commits a first degree felony;
63
Commercial sexual activity
64
who does so by the transfer or transport of any child under the
age of 18 or an adult believed to be a child younger than 18 years old from outside of Florida
to within Florida commits a first degree felony;
65
or
54
Section 787.06(2)(f), F.S., provides “maintain” means, in relation to labor or services, to secure or make possible continued
performance thereof, regardless of any initial agreement on the part of the victim to perform such type service. Section
787.06(2)(h), F.S., defines “services” as any act committed at the behest of, under the supervision of, or for the benefit of
another, including forced marriage, servitude, or the removal of organs.
55
Section 787.06(2)(g), F.S., provides “obtain” means, in relation to labor, commercial sexual activity, or services, to receive,
take possession of, or take custody of another person or secure performance thereof.
56
Section 787.06(2)(d), F.S.
57
Section 787.06(3), F.S.
58
Section 787.06(2)(e), F.S., provides “labor” means work of economic or financial value.
59
Section 787.06(2)(h), F.S., provides “services” means any act committed at the behest of, under the supervision of, or for
the benefit of another. The term includes, but is not limited to, forced marriage, servitude, or the removal of organs.
60
Section 787.06(3)(a)1., F.S.
61
Section 787.06(2)(j), F.S., defines “unauthorized alien” as an alien who is not authorized under federal law to be employed
in the United States, as provided in 8 U.S.C. s. 1324a(h)(3).
62
Section 787.06(3)(c)1., F.S.
63
Section 787.06(3)(e)1., F.S.
64
Section 787.06(2)(b), F.S., defines “commercial sexual activity” as any violation of ch. 796, F.S., or an attempt to commit
any such offense, and includes sexually explicit performances and the production of pornography. Section 787.06(2)(i), F.S.,
defines “sexual explicit performance” as an act or show, whether public or private, that is live, photographed, recorded, or
videotaped and intended to arouse or satisfy the sexual desires or appeal to the prurient interest.
65
Section 787.06(3)(f)1., F.S., provides that an offense committed under these circumstances is punishable by a term of
imprisonment not exceeding life or as provided in ss. 775.082, 775.083, or 775.084, F.S. BILL: CS/SB 128 Page 8
Commercial sexual activity
66
in which any child under the age of 18 or an adult believed to
be a child younger than 18 years old, or in which any person who is mentally defective
67
or
mentally incapacitated
68
is involved commits a life felony.
69
First degree felonies are reclassified as a life felony if a person causes great bodily harm,
permanent disability, or permanent disfigurement to another person during the commission of the
offense.
70
Ignorance of the human trafficking victim’s age, the victim’s misrepresentation of his
or her age, or a bona fide belief of the victim’s age cannot be raised as a defense by a
defendant.
71
Foster Care
The child welfare system identifies families whose children
72
are in danger of suffering or have
suffered abuse,
73
abandonment,
74
or neglect
75
and works with those families to address the
problems that are endangering children. If the problems cannot be ameliorated, the child welfare
system finds other caregivers for children, such as foster care, relative and nonrelative
caregivers, or adoptive families.
76
“Foster care” is defined as care provided a child in a foster
66
Section 787.06(2)(b), F.S., defines “commercial sexual activity” as any violation of ch. 796, F.S., or an attempt to commit
any such offense, and includes sexually explicit performances and the production of pornography. Section 787.06(2)(i), F.S.,
defines “sexual explicit performance” as an act or show, whether public or private, that is live, photographed, recorded, or
videotaped and intended to arouse or satisfy the sexual desires or appeal to the prurient interest.
67
Section 794.011(1)(b), F.S., defines “mentally defective” as a mental disease or defect which renders a person temporarily
or permanently incapable of appraising the nature of his or her conduct.
68
Section 794.011(1)(c), F.S., defines “mental incapacitated” as temporarily incapable of appraising or controlling a person’s
own conduct due to the influence of a narcotic, anesthetic, or intoxicating substance administered without his or her consent
or due to any other act committed upon that person without his or her consent.
69
A life felony is punishable by a term of life imprisonment, $15,000 fine, or both as provided in ss. 775.082(3)(a)6.,
775.083, or 775.084, F.S.
70
Section 787.06(8)(b), F.S.
71
Section 787.06(9), F.S.
72
See s. 39.01(14), F.S., for the definition of “child who is found to be dependent.”
73
Section 39.01(2), F.S. The term “abuse” means any willful act or threatened act that results in any physical, mental, or
sexual abuse, injury, or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be
significantly impaired. Abuse of a child includes the birth of a new child into a family during the course of an open
dependency case when the parent or caregiver has been determined to lack the protective capacity to safely care for the
children in the home and has not substantially complied with the case plan towards successful reunification or met the
conditions for return of the children into the home. Abuse of a child includes acts or omissions. Corporal discipline of a child
by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to
the child.
74
Section 39.01(1), F.S. The term “abandoned” or “abandonment” means a situation in which the parent or legal custodian of
a child or, in the absence of a parent or legal custodian, the caregiver, while being able, has made no significant contribution
to the child’s care and maintenance or has failed to establish or maintain a substantial and positive relationship with the child,
or both.
75
Sections 39.01(50) and 39.201(2)(a), F.S. “Neglect” occurs when a child is deprived of, or is allowed to be deprived of,
necessary food, clothing, shelter, or medical treatment or a child is permitted to live in an environment when such deprivation
or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of
being significantly impaired. The foregoing circumstances shall not be considered neglect if caused primarily by financial
inability unless actual services for relief have been offered to and rejected by such person. A parent or legal custodian
legitimately practicing religious beliefs in accordance with a recognized church or religious organization who thereby does
not provide specific medical treatment for a child may not, for that reason alone, be considered a negligent parent or legal
custodian; however, such an exception does not preclude a court from ordering necessary services.
76
See s. 39.001(1), F.S. BILL: CS/SB 128 Page 9
family or boarding home, group home, agency boarding home, child care institution, or any
combination thereof.
77
Action Letters for Foster Children
In 2014, the CFPB released action letters for child welfare case workers to send to credit bureaus
for debt incurred by foster children.
78
The three letters address credit reports that: (a) should not
exist for the child in foster care,
79
(b) has errors from before the youth turned 18,
80
and (c) has
errors for foster care youth over 18.
81
Case workers are encouraged to send the relevant letters to
the credit bureaus if they find errors on foster children’s credit reports.
82
III. Effect of Proposed Changes:
Section 1 of the bill creates s. 559.721, F.S., which prohibits consumer collection agencies from
contacting certain debtors once the consumer collection agency receives specified evidence. A
creditor may not contact a debtor regarding a debt that arises from documented human
trafficking and economic abuse or a debt that arose when the debtor was in foster care.
For the no contact provision to apply to victims of human trafficking and economic abuse, the
debtor must provide to the creditor: (a) official documentation
83
that shows at least one incident
of human trafficking has occurred in which the debtor is listed as a victim and in which the
debtor received relocation assistance,
84
and (b) a signed affidavit swearing under penalty of
perjury that the following are true:
The debtor was the victim of human trafficking as documented in a police report or there has
been a determination that the debtor should receive relocation assistance;
As a result of the human trafficking, the debtor was compelled to incur debt or was provided
credit that the debtor would not otherwise have incurred in the absence of the abuse, such as
the debtor’s identity being stolen; and
The debt was incurred solely because of and during the period of human trafficking.
77
Section 39.01(29), F.S.
78
The CFPB, CFPB Releases Tools to Protect Foster Care Children from Credit Reporting Problems, May 1, 2014,
available at: CFPB Releases Tools To Protect Foster Care Children From Credit Reporting Problems | Consumer Financial
Protection Bureau (consumerfinance.gov) (hereinafter cited as “CFPB Tools to Protect Foster Care Children”) (last visited
Mar. 25, 2023).
79
The CFPB, Credit Report Dispute Template for Youth in Foster Care, available at: 201405_cfpb_foster-youth-
letter_minor-dispute.doc (live.com) (last visited Mar. 25, 2023).
80
The CFPB, Credit Report Dispute Template for Youth 18 or Older in Foster Care – Activity Occurred When Minor,
available at: 201405_cfpb_foster-youth-letter_adult-minor-dispute.doc (live.com) (last visited Mar. 25, 2023).
81
The CFPB, Credit Report Dispute Template for Youth 18 or Older in Foster Care, available at: 201405_cfpb_foster-youth-
letter_adult-dispute.doc (live.com) (last visited Mar. 25, 2023).
82
The CFPB Tools to Protect Foster Care Children.
83
Section 943.0583(1)(b), F.S., defines “official documentation” as any documentation issued by a federal, state, or local
agency tending to show a person’s status as a victim of human trafficking.
84
Section 960.196(2), F.S., provides that a victim may be granted an award for relocation assistance if there is proof that a
human trafficking offense was committed as provided in s. 787.06(3)(b), (d), (f), and (g), and that the crime was reported to
the proper authorities and filed within specified timeframes depending on when the crime occurred. BILL: CS/SB 128 Page 10
If the debtor complies with these requirements, the no contact provision applies either (a) for 1
year after the affidavit is provided, or (b) indefinitely, if the perpetrator has been convicted of a
crime relating to human trafficking as alleged in the police report.
For the no contact provision to apply to children who were in foster care, the debtor must provide
to the creditor a signed affidavit, swearing under penalty of perjury, that the following are true:
The debtor was in foster care; and
The debt was incurred during the time when the debtor was in foster care.
If the debtor complies with these requirements, there is no time limit for how long the
provision applies.
Section 2 requires the OFR to inform and furnish relevant information to specified entities if a
person has been named in a consumer complaint alleging a violation of s. 559.721, F.S.
Section 3 provides the bill is effective July 1, 2023.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
Federal law and Florida law provide that, in the event any inconsistency between any
provision of FDCPA and the FCCPA, the provision which is more protective of the
consumer or debtor must prevail.
85
The bill would add provisions that are more protective
of certain categories of persons and therefore should prevail.
85
15 U.S.C. s. 1692n; Section 559.552, F.S. BILL: CS/SB 128 Page 11
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None.
B. Private Sector Impact:
None.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends section559.725of the Florida Statutes.
This bill creates section 559.721 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Substantial Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Banking and Insurance Committee on March 29, 2023:
The committee substitute makes the following changes:
Removes the provisions that prohibit a creditor from contacting:
o A victim of elder and economic abuse;
o A victim of identity theft; and
o A debtor upon receiving notice that the debtor is protected by an injunction
for protection against exploitation of a vulnerable adult under s. 825.1035,
F.S.;
Modifies the provisions that prohibit a “creditor” to prohibit a “consumer collection
agency” from making contact with specified groups of individuals;
Removes the provision that s. 559.721, F.S., applies to out-of-state consumer debt
collectors, even if they are exempted from registering with the OFR;
Removes the provision that such section may not be construed to mean that the debtor
is discharged from the debt that he or she may have incurred as a result of the crime;
and BILL: CS/SB 128 Page 12
Removes the modification to s. 559.77, F.S., in the bill that makes a creditor who
violates the provisions prohibiting contact with the specified categories of persons
subject to civil remedies.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.