MOTOR VEHICLE SALES FINANCE; VEHICLE VALUATION PROTECTION AGREEMENTS
(ss. 520.01-520.157)
PART II
DISTRIBUTED ENERGY GENERATION SYSTEM SALES
(ss. 520.20-520.26)
PART III
RETAIL INSTALLMENT SALES
(ss. 520.30-520.42)
PART IV
INSTALLMENT SALES FINANCE
(ss. 520.50-520.57)
PART V
HOME IMPROVEMENT SALES AND FINANCE
(ss. 520.60-520.98)
PART VI
DEPARTMENT REGULATION OF SALES AND FINANCE
(ss. 520.993-520.999)
PART I
MOTOR VEHICLE SALES FINANCE; VEHICLE VALUATION PROTECTION AGREEMENTS
520.01 Motor Vehicle Retail Sales Finance Act.
520.02 Definitions.
520.03 Licenses.
520.07 Requirements and prohibitions as to retail installment contracts.
520.08 Finance charge limitation.
520.085 Simple-interest contracts.
520.09 Credit upon anticipation of payments.
520.10 Refinancing retail installment contract.
520.12 Penalties.
520.125 Variable rate contracts; mobile homes.
520.13 Waiver.
520.14 Termination of retail installment contract for leasing a motor vehicle by a servicemember.
520.151 Florida Vehicle Value Protection Agreements Act.
520.152 Definitions.
520.153 Requirements and prohibitions as to vehicle value protection agreements.
520.154 Disclosures.
520.155 Commercial transactions exempt.
520.156 Penalties.
520.157 Excess wear and use waiver.
520.01 Motor Vehicle Retail Sales Finance Act.—Sections 520.01-520.10, 520.12, 520.125, and 520.13 may be cited as “The Motor Vehicle Retail Sales Finance Act.”
520.02 Definitions.—In this act, unless the context or subject matter otherwise requires:
(1) “Branch” means any location, other than a licensee’s principal place of business, at which a licensee operates or conducts business under this act or which a licensee owns or controls for the purpose of conducting business under this act.
(2) “Cash price” means the price at which a seller, in the ordinary course of business, offers to sell for cash the property or service that is the subject of the transaction. At the seller’s option, the term “cash price” may include the price of accessories, services related to the sale, service contracts, and taxes and fees for license, title, and registration of the motor vehicle. The term “cash price” does not include any finance charge.
(3) “Commission” means the Financial Services Commission.
(4) “Control person” means an individual, partnership, corporation, trust, or other organization that possesses the power, directly or indirectly, to direct the management or policies of a company, whether through ownership of securities, by contract, or otherwise. A person is presumed to control a company if, with respect to a particular company, that person:
(a) Is a director, general partner, or officer exercising executive responsibility or having similar status or functions;
(b) Directly or indirectly may vote 10 percent or more of a class of a voting security or sell or direct the sale of 10 percent or more of a class of voting securities; or
(c) In the case of a partnership, may receive upon dissolution or has contributed 10 percent or more of the capital.
(5) “Down payment” means the amount, including the value of any property used as a trade-in, paid to a seller to reduce the cash price of goods or services purchased in a credit sale transaction. A deferred portion of a down payment may be treated as part of the down payment if it is payable not later than the due date of the second otherwise regularly scheduled payment and is not subject to a finance charge.
(6) “Finance charge” means the cost of consumer credit as a dollar amount. The term “finance charge” includes any charge payable directly or indirectly by the buyer and imposed directly or indirectly by the seller as an incident to or a condition of the extension of credit. The term “finance charge” does not include any charge of a type payable in a comparable cash transaction.
(7) “Guaranteed asset protection product” means a loan, lease, or retail installment contract term, or modification or addendum to a loan, lease, or retail installment contract, under which a creditor agrees, with or without a separate charge, to cancel or waive a customer’s liability for payment of some or all of the amount by which the debt exceeds the value of the collateral that has incurred total physical damage or is the subject of an unrecovered theft. A guaranteed asset protection product may also provide, with or without a separate charge, a benefit that waives a portion of, or provides a customer with a credit toward, the purchase of a replacement motor vehicle. Such a product is not insurance for purposes of the Florida Insurance Code. This subsection also applies to all guaranteed asset protection products issued before October 1, 2008.
(8) “Holder” of a retail installment contract means the retail seller of a motor vehicle retail installment contract or an assignee of such contract.
(9) “Mobile home” means a structure, transportable in one or more sections, which is 8 body feet or more in width and is 32 body feet or more in length, designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air-conditioning, and electrical systems contained therein.
(10) “Motor vehicle” means any device or vehicle, including automobiles, motorcycles, motor trucks, trailers, mobile homes, and all other vehicles operated over the public highways and streets of this state and propelled by power other than muscular power, but excluding traction engines, road rollers, implements of husbandry and other agricultural equipment, and vehicles which run only upon a track.
(11) “Motor vehicle retail installment seller” or “seller” means a person engaged in the business of selling motor vehicles to retail buyers in retail installment transactions.
(12) “Office” means the Office of Financial Regulation of the commission.
(13) “Official fees” means fees and charges prescribed by law which actually are or will be paid to public officials for determining the existence of, or for perfecting, releasing, or satisfying, any security related to the credit transaction, or the premium payable for any insurance in lieu of perfecting any security interest otherwise required by the creditor in connection with the transaction, if the premium does not exceed the fees and charges which would otherwise be payable to public officials.
(14) “Person” means an individual, partnership, corporation, association, and any other group however organized.
(15) “Principal place of business” means the physical location designated on the licensee’s application for licensure, unless otherwise designated as required by this chapter.
(16) “Retail buyer” or “buyer” means a person who buys a motor vehicle from a seller not principally for the purpose of resale, and who executes a retail installment contract in connection therewith or a person who succeeds to the rights and obligations of such person.
(17) “Retail installment contract” or “contract” means an agreement, entered into in this state, pursuant to which the title to, or a lien upon the motor vehicle, which is the subject matter of a retail installment transaction, is retained or taken by a seller from a retail buyer as security, in whole or in part, for the buyer’s obligation. The term includes a conditional sales contract and a contract for the bailment or leasing of a motor vehicle by which the bailee or lessee contracts to pay as compensation for its use a sum substantially equivalent to or in excess of its value and by which it is agreed that the bailee or lessee is bound to become, or for no further or a merely nominal consideration, has the option of becoming, the owner of the motor vehicle upon full compliance with the provisions of the contract.
(18) “Retail installment transaction” means any transaction evidenced by a retail installment contract entered into between a retail buyer and a seller wherein the retail buyer buys a motor vehicle from the seller at a deferred payment price payable in one or more deferred installments.
(19) “Sales finance company” means a person engaged in the business of purchasing retail installment contracts from one or more sellers. The term includes, but is not limited to, a bank or trust company, if so engaged. The term does not include the pledge of an aggregate number of such contracts to secure a bona fide loan thereon.
(20) Words in the singular include the plural and vice versa.
(1) A person may not engage in the business of a motor vehicle retail installment seller or operate a branch of such business without a license as provided in this section; however, a bank, trust company, savings and loan association, or credit union authorized to do business in this state is not required to obtain a license under this part. If a motor vehicle retail installment seller has more than one location in the same county, only one license shall be required for that county.
(2) An application for a license under this part must be submitted to the office in such form as the commission may prescribe by rule. The commission may require each applicant to provide any information reasonably necessary to determine the applicant’s eligibility for licensure. The applicant shall also provide information that the office requires concerning any officer, director, control person, member, partner, or joint venturer of the applicant or any person having the same or substantially similar status or performing substantially similar functions or any individual who is the ultimate equitable owner of a 10-percent or greater interest in the applicant. The office may require information concerning any such applicant or person, including, but not limited to, his or her full name and any other names by which he or she may have been known, age, social security number, residential history, qualifications, educational and business history, and disciplinary and criminal history. If the office determines that an application should be granted, it shall issue the license for a period not to exceed 2 years. A nonrefundable application fee of $175 shall accompany an initial application for the principal place of business and each application for a branch location of a retail installment seller who is required to be licensed under this chapter. An application is considered received for purposes of s. 120.60 upon receipt of a completed application form as prescribed by commission rule, a nonrefundable application fee of $175, and any other fee prescribed by law.
(3) The nonrefundable renewal fee for a motor vehicle retail installment seller license shall be $175. The commission shall establish by rule biennial licensure periods and procedures for renewal of licenses. A license that is not renewed by the end of the biennium established by the commission shall revert from active to inactive status. An inactive license may be reactivated within 6 months after becoming inactive upon filing a completed reactivation form, payment of the nonrefundable renewal fee, and payment of a reactivation fee equal to the nonrefundable renewal fee. A license that is not reactivated within 6 months after becoming inactive automatically expires.
(4) A licensee may not transact business as a motor vehicle retail installment seller except under the name by which it is licensed. Licenses issued under this part are not transferable or assignable.
(5) The office may deny an initial application for a license under this part if the applicant or any officer, director, control person, member, partner, or joint venturer of the applicant is the subject of a pending criminal prosecution or governmental enforcement action, in any jurisdiction, until conclusion of such criminal prosecution or enforcement action.
(6) Each seller shall designate and maintain an agent in this state for service of process.
520.07 Requirements and prohibitions as to retail installment contracts.—
(1)(a) A retail installment contract shall be in writing, shall be signed by both the buyer and the seller, and shall be completed as to all essential provisions prior to the signing of the contract by the buyer.
(b) The printed portion of the contract, other than instructions for completion, shall be in at least 6-point type. The contract shall contain:
1. A specific statement that liability insurance coverage for bodily injury and property damage caused to others is not included, if that is the case; and
2. The following notice in substantially this form:
Notice to the Buyer
a. Do not sign this contract before you read it or if it contains any blank spaces.
b. You are entitled to an exact copy of the contract you sign. Keep it to protect your legal rights.
(c) The seller shall deliver to the buyer, or mail to the buyer at his or her address shown on the contract, a copy of the contract signed by the seller. Before the transaction is consummated, a copy of the retail installment contract, or a separate statement by which the disclosures required by this section are made and on which the buyer and seller are identified, shall be delivered to the buyer. Until the seller has delivered or mailed to the buyer a copy of the retail installment contract, a buyer who has not received delivery of the motor vehicle shall have the right to rescind the agreement and to receive a refund of all payments made and return of all goods traded in to the seller on account of or in contemplation of the contract or, if such goods cannot be returned, the value thereof. Any acknowledgment by the buyer of delivery of a copy of the contract, if contained in the contract, shall appear directly above or adjacent to the buyer’s signature.
(d) The contract shall contain the names of the seller and the buyer, the place of business of the seller, the residence or place of business of the buyer as specified by the buyer, and a description of the motor vehicle including its make, year model, and model and identification number or marks.
(2) The contract shall contain the following:
(a) Amount financed.—The “amount financed,” using that term, and a brief description such as “the amount of credit provided to you or on your behalf.” The amount financed is calculated by:
1. Determining the cash price, and subtracting any down payment;
2. Adding any other amounts that are financed by the creditor and that are not part of the finance charge, including any additional amount financed in a retail installment contract to discharge a security interest, lien, or lease interest on a motor vehicle traded in in connection with the contract; and
3. Subtracting any prepaid finance charge.
(b) Finance charge.—The “finance charge,” using that term, and a brief description such as “the dollar amount the credit will cost you.”
(c) Total of payments.—The “total of payments,” using that term, and a descriptive explanation such as “the amount you will have paid when you have made all scheduled payments.”
(d) Total sale price.—In a credit sale, the “total sale price,” using that term, and a descriptive explanation, including the amount of any down payment, such as “the total price of your purchase on credit, including your down payment of $.” The total sale price is the sum of the cash price, the items described in subparagraph (a)2., and the finance charge disclosed under paragraph (b).
(e) Payment details.—The number of scheduled payments, the amount of each payment, and the date of the first payment.
Except for the requirement in subsection (3) that a separate written itemization of the amount financed be provided, a contract which complies with the federal Truth in Lending Act, 15 U.S.C. ss. 1601 et seq., or any accompanying regulations shall be deemed to comply with the provisions of this subsection and subsection (3). However, in any proceeding to enforce the provisions of this section, the burden of alleging and proving compliance with the federal Truth in Lending Act shall be on the party claiming compliance.
(3) The seller shall provide a separate written itemization of the amount financed, which itemization shall disclose the following:
(a) The cash price;
(b) The amount of down payment;
(c) The difference between the amounts disclosed under paragraphs (a) and (b);
(d) The amounts, if any, included for insurance and other benefits, specifying the types of coverages and benefits; and
(e) Any taxes and official fees not included in the cash price.
The itemization required by this subsection may appear on a disclosure statement separate from all other material, or it may be placed on the same document with the contract or other information so long as it is clearly and conspicuously segregated from everything else on the document.
(4) The amount, if any, included for insurance which may be purchased by the holder of the retail installment contract may not exceed the applicable premiums chargeable in accordance with the rates filed with the Office of Insurance Regulation of the commission. If dual interest insurance on the motor vehicle is purchased by the holder, it shall, within 30 days after execution of the retail installment contract, send or cause to be sent to the buyer a policy or policies or certificate of insurance, written by an insurance company authorized to do business in this state, clearly setting forth the amount of the premium, the kind or kinds of insurance, the coverages, and all the terms, exceptions, limitations, restrictions, and conditions of the contract or contracts of insurance. Nothing in this act shall impair or abrogate the right of a buyer, as defined herein, to procure insurance from an agent and company of his or her own selection as provided by the insurance laws of this state; and nothing contained in this act shall modify, amend, alter, or repeal any of the insurance laws of the state, including any such laws enacted by the 1957 Legislature.
(5) If any insurance is canceled, or the premium adjusted, unearned insurance premium refunds received by the holder and any unearned finance charges thereon shall, at his or her option, be credited to the final maturing installments of the contract or paid to the buyer, except to the extent applied toward payment for similar insurance protecting the interests of the buyer and the holder, or either of them. The finance charge on the original transaction shall be separately computed:
(a) With the premium for the canceled or adjusted insurance included in the “amount financed”; and
(b) With the premium for the canceled insurance or the amount of the premium adjustment excluded from the “amount financed.”
The difference in the finance charge resulting from these computations shall be the portion of the finance charge attributable to the canceled or adjusted insurance, and the unearned portion thereof shall be determined by the use of the rule of 78ths. “Cancellation of insurance” occurs at such time as the seller or holder receives from the insurance carrier the proper refund of unearned insurance premiums.
(6) The holder may, if the contract or refinancing agreement so provides, collect a delinquency and collection charge on each installment in default for a period not less than 10 days in an amount not in excess of 5 percent of each installment. In addition to such delinquency and collection charge, the contract may provide for the payment of reasonable attorney’s fees when such contract is referred for collection to an attorney not a salaried employee of the holder of the contract, plus the court costs.
(7) No retail installment contract shall be signed by any party thereto when it contains blank spaces to be filled in after it has been signed, except that, if delivery of the motor vehicle is not made at the time of the execution of the contract, the identifying numbers or marks of the motor vehicle or similar information and the due date of the first installment may be inserted in the contract after its execution. The buyer’s written acknowledgment, conforming to the requirements of paragraph (1)(c), of delivery of a copy of a contract shall be presumptive proof of such delivery, that the contract when signed did not contain any blank spaces except as herein provided, and of compliance with this section in any action or proceeding by or against the holder of the contract.
(8)(a) Upon written request from the buyer, the holder of a retail installment contract shall give or forward to the buyer a written statement of the dates and amounts of payments and the total amount unpaid under such contract. A buyer shall be given a written receipt for any payment when made in cash.
(b) When a motor vehicle retail installment contract is paid in full, the holder shall ensure that the contract or title reflects that the lien has been satisfied or released and shall ensure that evidence of satisfaction is provided to the borrower or payor.
(9) The office may order a seller to refund any amounts assessed and charged on a retail installment contract which exceed the maximum charges provided by this act or by rules of the commission.
(10) A retail installment contract may provide that if a buyer rejects or revokes acceptance of the motor vehicle and asserts a security interest in the motor vehicle based on the ground of rightful rejection or justifiable revocation, the buyer must take one of the following actions:
(a) Post a bond in the amount of the disputed balance; or
(b) Deposit all accrued, and thereafter accruing, installment payments into the registry of a court of competent jurisdiction.
The cost of a bond posted under this subsection is awardable to the buyer in the proceedings. When the provisions of chapter 681 apply, this subsection shall not apply.
(11) In conjunction with entering into any new retail installment contract or contract for a loan, a motor vehicle retail installment seller as defined in s. 520.02, a sales finance company as defined in s. 520.02, or a retail lessor as defined in s. 521.003, and any assignee of such an entity, may offer, for a fee or otherwise, optional guaranteed asset protection products in accordance with this chapter. The motor vehicle retail installment seller, sales finance company, retail lessor, or assignee may not require the purchase of a guaranteed asset protection product as a condition for making the loan. In order to offer any guaranteed asset protection product, a motor vehicle retail installment seller, sales finance company, or retail lessor, and any assignee of such an entity, shall comply with the following:
(a) The cost of any guaranteed asset protection product, with respect to any loan covered by the guaranteed asset protection product, shall not exceed the amount of the indebtedness.
(b) Any contract or agreement pertaining to a guaranteed asset protection product shall be governed by this section.
(c) A guaranteed asset protection product is considered an obligation of any person that purchases or otherwise acquires the loan contract covering such product.
(d) An entity providing guaranteed asset protection products shall provide readily understandable disclosures that explain in detail eligibility requirements, conditions, refunds, and exclusions. The disclosures must provide that the purchase of the product is optional. The disclosures must be in plain language and of a typeface and size that are easy to read.
(e) An entity must provide a copy of the executed guaranteed asset protection product contract to the buyer. The entity bears the burden of proving the contract was provided to the buyer.
(f) An entity may not offer a contract for a guaranteed asset protection product that contains terms giving the entity the right to unilaterally modify the contract unless:
1. The modification is favorable to the buyer and is made without additional charge to the buyer; or
2. The buyer is notified of any proposed change and is provided a reasonable opportunity to cancel the contract without penalty before the change goes in effect.
(g) If a contract for a guaranteed asset protection product is terminated, the entity shall refund to the buyer all unearned portions of the purchase price of the contract unless the contract provides otherwise. A refund is not due to a consumer who receives a benefit under such product. In order to receive a refund, the buyer must notify the entity of the event terminating the contract and request a refund within 90 days after the occurrence of the event terminating the contract. An entity may offer a buyer a contract that does not provide for a refund only if the entity also offers that buyer a bona fide option to purchase a comparable contract that provides for a refund. An entity may not deduct more than $75 in administrative fees from a refund made under this subsection.
(h) Guaranteed asset protection products may be cancelable or noncancelable after a free-look period as defined in s. 520.152.
(i) If the termination of the guaranteed asset protection product occurs because of a default under the retail installment contract or contract for a loan, the repossession of the motor vehicle associated with the retail installment contract or contract for a loan, or any other termination of the retail installment contract or contract for a loan, the entity may pay any refund due directly to the holder or administrator and apply the refund as a reduction of the amount owed under the retail installment contract or contract for a loan, unless the buyer can show that the retail installment contract has been paid in full.
(1) Notwithstanding the provisions of any other law, the finance charge, exclusive of insurance, shall not exceed the following rates:
(a) Class 1. Any new motor vehicle designated by the manufacturer by a year model not earlier than the year in which the sale is made—$10 per $100 per year.
(b) Class 2. Any new motor vehicle not in Class 1 and any used motor vehicle designated by the manufacturer by a year model of the same or not more than 2 years prior to the year in which the sale is made—$11 per $100 per year.
(c) Class 3. Any used motor vehicle not in Class 2 and designated by the manufacturer by a year model not more than 4 years prior to the year in which the sale is made—$15 per $100 per year.
(d) Class 4. Any used motor vehicle not in Class 2 or Class 3 and designated by the manufacturer by a year model more than 4 years prior to the year in which the sale is made—$17 per $100 per year.
(2) Such finance charge shall be computed on the amount financed as determined under s. 520.07(2) on contracts payable in successive monthly payments substantially equal in amount. Such finance charge may be computed on the basis of a full month for any fractional-month period in excess of 10 days. A minimum finance charge of $25 may be charged on any retail installment transaction.
(3) When a retail installment contract provides for unequal or irregular installment payments, the finance charge may be at a rate which will provide the same yield as is permitted on monthly payment contracts under subsections (1) and (2) having due regard for the schedule of payment.
(4) Any holder may purchase or acquire or agree to purchase or acquire from any seller any contract on such terms and conditions as may be agreed upon between them. Filing of the assignment, notice to the buyer of the assignment, and any requirement that the holder maintain dominion over the payments or the motor vehicle if repossessed shall not be necessary to the validity of a written assignment of a contract as against creditors, subsequent purchasers, pledgees, mortgagees, and lien claimants of the seller. Unless the buyer has notice of the assignment of her or his contract, payment thereunder made by the buyer to the last known holder of such contract shall be binding upon all subsequent holders.
(5) The provisions of subsection (1) shall not apply to any retail installment contract for the purchase of a mobile home, titled as a motor vehicle, when such contract is entered into pursuant to a commitment to guarantee issued by the United States Department of Veterans Affairs or pursuant to a commitment to insure issued by the Federal Housing Administration.
(6) As amended by chapter 79-592, Laws of Florida, chapter 79-274, Laws of Florida, which amended paragraph (1)(a):
(a) Shall apply only to loans, advances of credit, or lines of credit made on or subsequent to July 1, 1979, and to loans, advances of credit, or lines of credit made prior to that date if the lender has the legal right to require full payment or to adjust or modify the interest rate, by renewal, assumption, reaffirmation, contract, or otherwise; and
(b) Shall not be construed as diminishing the force and effect of any laws applying to loans, advances of credit, or lines of credit, other than to those mentioned in paragraph (a) of this subsection, completed prior to July 1, 1979.
(1) A retail installment contract under The Motor Vehicle Retail Sales Finance Act may provide that the rate of finance charge be calculated on a simple-interest basis subject to the following provisions:
(a) Instead of a finance charge computed on the amount financed as determined under s. 520.07(2), the seller may compute the finance charge at a simple-interest rate equivalent to the finance charge permitted by s. 520.08 on the unpaid balance as it changes from time to time or by any other method. For the purposes of this section, the class of motor vehicle shall be determined at the time of execution of the retail installment contract.
(b) The language in s. 520.08(2) which provides that the finance charge may be computed on the basis of a full month for any fractional-month period in excess of 10 days shall not be applicable to a simple-interest contract.
(c) The provisions of s. 520.09 which prescribe a refund credit upon prepayment in full before maturity of the unpaid balance of a retail installment contract shall not be applicable to a simple-interest contract. However, the lender may impose an acquisition charge, not to exceed $75, for services performed on behalf of the borrower for processing the retail installment contract if the contract is paid in full within 6 months after the effective date of the contract.
(d) In the event the unpaid balance of a retail installment contract is extended, deferred, renewed, or restated, the holder may compute the refinance charge in accordance with the provisions of this section.
(e) Notwithstanding any provisions of The Motor Vehicle Retail Sales Finance Act or any other law to the contrary, the finance charge percentage rate included in a retail installment sale contract representing the sale of a motor vehicle primarily for business or commercial use may vary, but no higher than the limits set forth in s. 520.08, during the term of the contract pursuant to a formula or index set forth therein (such as a prime rate or commercial paper rate quoted by one or more banking institutions or the highest prime rate reported effective on the date in question by The Wall Street Journal) that is made readily available to and verifiable by the buyer and is beyond the control of the holder of the contract. For the purpose of disclosing the amount of finance charge and time balance and setting forth a payment schedule of equal successive monthly installments, such amounts may be calculated using the finance charge percentage rate applicable to the transaction as of the date of execution of the contract, notwithstanding the fact that such finance charge percentage may increase or decrease over the term of the contract according to a formula or index set forth in the contract.
(2) The holder of a simple-interest contract, upon the request of the buyer, may defer the scheduled due date of all or any part of any installment payment, and may collect a $15 fee for such deferment. The holder may also require the buyer to extend any insurance coverage required by the simple-interest contract, or require the buyer to reimburse the holder for any costs incurred by the holder for extending such coverage. With the buyer’s approval, the holder may extend any optional insurance coverage purchased in connection with the simple-interest contract and may charge the buyer for the costs of extending such optional insurance. A holder may not collect the $15 deferment fee unless this deferment option was provided for in the simple-interest contract. The holder shall disclose in the simple-interest contract and any offer to exercise the deferment option that, in addition to the $15 deferment fee and the costs of extending required or optional insurance, the buyer will also be required to pay additional finance charges as a result of exercising the deferment option.
520.09 Credit upon anticipation of payments.—Notwithstanding the provisions of any retail installment contract to the contrary, any buyer may pay in full at any time before maturity the debt of any retail installment contract and in so paying such debt shall receive a refund credit thereon for such anticipation of payments. The amount of such refund shall represent at least as great a proportion of the finance charge after first deducting from such finance charge an acquisition cost of $25, as the sum of the monthly balances after the month in which prepayment is made, bears to the sum of all the monthly balances under the schedule of payments in the contract. Where the amount of credit is less than $1 no refund need be made.
520.10 Refinancing retail installment contract.—The holder of a contract, upon request by the buyer, may extend the scheduled due date of all or any part of any installment or installments or deferred payment or payments or renew or restate the unpaid balance of such contract, the amount of the installments, and the time schedule therefor and may collect for such extension, deferment, renewal, or restatement a refinance charge computed as follows: In the event the unpaid balance of the contract is extended, deferred, renewed, or restated, the holder may compute the refinance charge on such amount, by adding to the unpaid balance the cost for insurance and other benefits incidental to the refinancing plus any accrued delinquency and collection charges, after deducting any refund which may be due the buyer at the time of the renewal or restatement by prepayment pursuant to s. 520.09, at the rate of the finance charge specified in s. 520.08(1) and by reclassifying the motor vehicle by its then year model, for the term of the refinancing agreement, but otherwise subject to the provisions of this act governing computation of the original finance charge. The provisions of this act relating to minimum finance charges under s. 520.08(2) and acquisition costs under the refund schedule in s. 520.09 shall not apply in calculating refinance charges on the contract extended, deferred, renewed, or restated. If all unpaid installments are deferred, the holder may, at her or his election, charge and collect for such deferment an amount equal to the difference between the refund required for prepayment in full under s. 520.09 as of the scheduled due date of the first deferred installment and the refund required for prepayment in full as of 1 month prior to said date times the number of months in which no scheduled payment is made.
(1) Any person who willfully and intentionally violates any provision of s. 520.995 or engages in the business of a retail installment seller without obtaining a license as required by this part is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(2) In the case of a willful violation of this part with respect to any retail installment sale, the buyer may recover from the person committing such violation, or may set off or counterclaim in any action against the buyer by such person, an amount equal to any finance charge and any fees charged to the buyer by reason of delinquency, plus attorney’s fees and costs incurred by the buyer to assert rights under this part.
(3) Subsection (2) does not apply to any violation of the requirement in s. 520.07(1)(c) that the seller deliver or mail to the buyer a copy of the contract signed by the seller, if the seller delivered to the buyer at the time the buyer signed the contract an exact copy of the contract that the buyer signed.
520.125 Variable rate contracts; mobile homes.—A retail installment contract for the purchase of a mobile home may provide that the rate of finance charge may be adjusted at stated regular intervals, in which case the retail installment contract shall be subject to the following provisions:
(1) Instead of a finance charge computed on the amount financed as determined under s. 520.07(2), the seller may compute the finance charge on the unpaid balance as it changes from time to time or by any other method. For purposes of this section, the class of any mobile home as provided in s. 520.08(1) shall be determined at the time of execution of the retail installment contract.
(2) Adjustments to the rate of finance charge shall be based on changes in the monthly average yield on United States Treasury securities adjusted to a constant maturity of 5 years as published in the Federal Reserve Bulletin, multiplied by 2.0, hereinafter referred to as “index value.”
(3) Adjustments to the rate of finance charge may not exceed 0.5 percent a year for any 6-month period. The maximum net adjustment over the term of the retail installment contract shall not exceed 5 percentage points.
(4) The rate of finance charge shall not increase or decrease during the 6-month period beginning with the date of execution of the contract, and at least 6 months shall elapse between changes.
(5) Subject to the limitations prescribed by this section, the adjustments, either up or down, to the rate of finance charge on each rate adjustment date shall be equal:
(a) For an initial adjustment, to the difference between the index value for the third calendar month preceding the month in which the rate adjustment date falls and the index value for the month of execution of the retail installment contract.
(b) For an adjustment after the initial adjustment, to the difference between the index value for the third calendar month preceding the month in which the rate adjustment date falls and the index value for the third calendar month preceding the month in which the immediately preceding rate adjustment date fell.
(6) Any increase in the rate of finance charge permitted by this section may be waived at the option of the seller. Subject to the limitations prescribed in this section, decreases in the rate of finance charge are mandatory in the event of any decrease in the index value exceeding one-tenth of 1 percentage point in any 6-month period. If the seller and buyer agree in writing to impose limitations on the frequency or amount of increases in the rate of finance charge which are less than the limitations permitted under this section, those limitations shall also apply to decreases in the rate of finance charge. Changes in the index value which are not taken may be accumulated by the seller in the case of an increase, and shall be accumulated in the case of a decrease, and taken at a later time or used to offset other changes. Such changes shall not exceed the maximum provided in subsection (3).
(7) By written agreement of the buyer and the seller, adjustments to the rate of finance charge may result in changes in the amount of any installment payment due under the retail installment contract, changes in the term of the retail installment contract, or a combination of such changes in amount and term.
(8) The buyer and seller may agree in writing that any change in the amount of any installment payment which results from an adjustment to the rate of finance charge may be applied to any subsequent installment payments. Adjustments to the amount of the installment payments may be made less frequently than adjustments to the rate of finance charge.
(9) The seller shall send the buyer written notice of any rate adjustment by United States mail, at least 35 days prior to the effective date of the new rate. The notification shall include:
(a) The current and new rates of finance charge.
(b) The index value used to calculate the new change in the rate of finance charge and the index value for the month of execution of the retail installment contract or, for adjustments after the initial adjustment, the index value used for the immediately preceding rate adjustment.
(c) The amounts of new installment payments and the remaining maturity.
(d) For increases and decreases in the rate of finance charge, the method by which the changes will be applied.
(10) The disclosures required pursuant to s. 520.07(2) and (8) shall be made on the basis of the rate of finance charge in effect at the time the disclosure is made assuming that each scheduled payment is made on the date it is due and in the scheduled amount.
(11) The provisions of s. 520.09 which prescribe a refund credit upon prepayment in full before the maturity of the unpaid balance of the retail installment contract shall not be applicable in a simple interest contract.
(12) In the event the unpaid balance of the retail installment contract is extended, deferred, renewed, or restated, the holder may compute the refinance charge in accordance with the provisions of this section.
520.13 Waiver.—Any waiver of the provisions of ss. 520.01-520.10, s. 520.12, s. 520.13, s. 520.993, s. 520.994, or s. 520.995 shall be unenforceable and void.
520.14 Termination of retail installment contract for leasing a motor vehicle by a servicemember.—
(1) Any servicemember, as defined in s. 250.01, may terminate his or her retail installment contract for leasing a motor vehicle by providing the sales finance company with a written notice of termination, effective on the date specified in the notice, which date shall be at least 30 days after the receipt of the notice by the sales finance company, if any of the following criteria are met:
(a) The servicemember is required, pursuant to a permanent change of station, to move outside the continental United States; or
(b) The servicemember receives temporary duty orders, temporary change of station orders, or active duty orders outside the continental United States, provided such orders are for a period exceeding 60 days.
(2) The written notice to the sales finance company under subsection (1) must be accompanied by either a copy of the official military orders or a written verification signed by the servicemember’s commanding officer.
(3) Upon termination of a contract under this section, the lessee is liable for the amount due under the contract, prorated to the effective date of the termination, payable at such time as would have otherwise been required by the terms of the contract. The lessee is not liable for any other fees due to the early termination of the contract as provided for in this section.
(4) The provisions of this section may not be waived or modified by the agreement of the parties under any circumstances.
520.151 Florida Vehicle Value Protection Agreements Act.—Sections 520.151-520.156 may be cited as the “Florida Vehicle Value Protection Agreements Act.”
520.152 Definitions.—As used in ss. 520.151-520.156, unless the context or subject matter otherwise requires, the term:
(1) “Administrator” means the person who is responsible for the administrative or operational function of managing vehicle value protection agreements, including, but not limited to, the adjudication of claims or benefit requests by contract holders.
(2) “Commercial transaction” means a transaction in which the motor vehicle subject to the transaction is used primarily for business or commercial purposes.
(3) “Contract holder” means a person who is the purchaser or holder of a vehicle value protection agreement.
(4) “Finance agreement” means a loan, retail installment sales contract, or lease for the purchase, refinancing, or lease of a motor vehicle.
(5) “Free-look period” means the period of time, commencing on the effective date of the contract, during which the buyer may cancel the contract for a full refund of the purchase price. This period may not be shorter than 30 days.
(6) “Motor vehicle” has the same meaning as provided in s. 520.02.
(7) “Provider” means a person that is obligated to provide a benefit under a vehicle value protection agreement. A provider may function as an administrator or retain the services of a third-party administrator.
(8) “Vehicle value protection agreement” includes a contractual agreement that provides a benefit toward either the reduction of some or all of the contract holder’s current finance agreement deficiency balance or the purchase or lease of a replacement motor vehicle or motor vehicle services upon the occurrence of an adverse event to the motor vehicle, including, but not limited to, loss, theft, damage, obsolescence, diminished value, or depreciation. The term does not include guaranteed asset protection products as defined in s. 520.02. Such a product is not insurance for purposes of the Florida Insurance Code.
520.153 Requirements and prohibitions as to vehicle value protection agreements.—
(1) Vehicle value protection agreements may be offered, sold, or given to consumers in this state in compliance with this act.
(2) Notwithstanding any other law, any amount charged or financed for a vehicle value protection agreement is not considered a finance charge or interest and must be separately stated in the finance agreement and in the vehicle value protection agreement.
(3) The extension of credit, the terms of credit, or the terms of the related motor vehicle sale or lease may not be conditioned upon the consumer’s payment for or financing of any charge for a vehicle value protection agreement. However, a vehicle value protection agreement may be discounted or given at no charge in connection with the purchase of other noncredit-related goods or services.
(4) A provider may use an administrator or other designee to administer a vehicle value protection agreement.
(5) A vehicle value protection agreement may not be sold to any person unless he or she has been or will be provided access to a copy of such vehicle value protection agreement at a reasonable time after such vehicle value protection agreement is sold.
(6) A vehicle value protection agreement may not be sold if coverage is duplicative of another vehicle value protection agreement sold to a person or duplicative of a guaranteed asset protection product.
(7) Each provider shall do one of the following:
(a) Insure all of its vehicle value protection agreements under a policy that pays or reimburses the contract holder in the event the provider fails to perform its obligations under the vehicle value protection agreement. The insurer must be licensed or otherwise authorized or eligible to do business in this state.
(b) Maintain a funded reserve account for its obligations under its contracts issued and outstanding in this state. The reserves may not be less than 40 percent of gross consideration received, less claims paid, on the sale of the vehicle value protection agreement for all in-force contracts in this state. The reserve must be placed in trust with the office and have a financial security deposit valued at not less than 5 percent of the gross consideration received, less claims paid, on the sale of the vehicle value protection agreements for all vehicle value protection agreements issued and in force in this state, but at least $25,000. The reserve account must consist of one of the following:
1. A surety bond issued by an authorized surety.
2. Securities of the type eligible for deposit by insurers as provided in s. 625.52.
3. Cash.
4. A letter of credit issued by a qualified financial institution.
(c) Maintain, or together with its parent corporation maintain, a net worth or stockholders’ equity of $100 million and, upon request, provide the office with a copy of the provider’s or the provider’s parent company’s Form 10-K or Form 20-F filed with the Securities and Exchange Commission within the last calendar year, or, if the company does not file with the Securities and Exchange Commission, a copy of the company’s audited financial statements, which must show a net worth of the provider or its parent company of at least $100 million. If the provider’s parent company’s Form 10-K, Form 20-F, or financial statements are filed to meet the provider’s financial security requirement, the parent company must agree to guarantee the obligations of the provider relating to vehicle value protection agreements sold by the provider in this state.
(8) A financial security requirement other than those imposed in subsection (7) may not be imposed on vehicle value protection agreement providers.
(1) A vehicle value protection agreement must disclose in writing, in clear, understandable language, all of the following:
(a) The names and addresses of the provider, contract holder, and administrator, if any.
(b) The terms of the vehicle value protection agreement, including, but not limited to, the purchase price to be paid by the contract holder, if any; the requirements for eligibility and conditions of coverage; and any exclusions.
(c) Whether the vehicle value protection agreement may be canceled by the contract holder during a free-look period as defined in s. 520.152, and that, in the event of cancellation, the contract holder is entitled to a full refund of the purchase price, if any, so long as no benefits have been provided.
(d) The procedure the contract holder must follow, if any, to obtain a benefit under the terms and conditions of the vehicle value protection agreement, including, if applicable, a telephone number, website, or mailing address where the contract holder may apply for a benefit.
(e) Whether the vehicle value protection agreement is cancelable after the free-look period and the conditions under which it may be canceled, including the procedures for requesting any refund of the unearned purchase price paid by the contract holder. In the event that the agreement is cancelable, it must include the methodology for calculating any refund due of the unearned purchase price of the vehicle value protection agreement.
(f) That the extension of credit, the terms of the credit, or the terms of the related motor vehicle sale or lease may not be conditioned upon the purchase of the vehicle value protection agreement.
(2) A vehicle value protection agreement must state the terms, restrictions, or conditions governing cancellation of the vehicle value protection agreement before the termination or expiration date of the vehicle value protection agreement by either the provider or the contract holder. The provider of the vehicle value protection agreement shall mail a written notice to the contract holder at the last known address of the contract holder contained in the records of the provider at least 5 days before cancellation by the provider, which notice must state the effective date of the cancellation and the reason for the cancellation. However, such prior notice is not required if the reason for cancellation is nonpayment of the provider fee, a material misrepresentation by the contract holder to the provider or administrator, or a substantial breach of duties by the contract holder relating to the covered motor vehicle or its use. If a vehicle value protection agreement is canceled by the provider for a reason other than nonpayment of the provider fee, the provider must refund to the contract holder 100 percent of the unearned pro rata provider fee paid by the contract holder, if any. If coverage under the vehicle value protection agreement continues after a claim, any refund may reflect a deduction for claims paid and, at the discretion of the provider, an administrative fee of not more than $75.
520.155 Commercial transactions exempt.—Sections 520.154 and 520.156 do not apply to vehicle value protection agreements offered in connection with a commercial transaction.
520.156 Penalties.—A provider, an administrator, or any other person who willfully and intentionally violates ss. 520.151-520.155 commits a noncriminal violation as defined in s. 775.08(3), punishable by a fine not to exceed $500 per violation and not more than $10,000 in the aggregate for all violations of a similar nature. For purposes of this section, the term “violations of a similar nature” means violations that consist of the same or similar course of conduct, action, or practice, irrespective of the number of times the action, conduct, or practice determined to be a violation of ss. 520.151-520.155 occurred.
(1) For purposes of this section, the term “excess wear and use waiver” means a contractual agreement wherein a lessor agrees, regardless of whether subject to a separate fee, to cancel or waive all or part of amounts that may become due under a lease agreement as a result of excess wear and use of a motor vehicle, which agreement must be part of, or a separate addendum to, the lease agreement. Such waivers may also cancel or waive amounts due for excess mileage.
(2) A retail lessee may contract with a retail lessor for an excess wear and use waiver in connection with a lease agreement.
(3) The terms of the related motor vehicle lease may not be conditioned upon the consumer’s payment for any excess wear and use waiver. However, excess wear and use waivers may be discounted or given at no charge in connection with the purchase of other noncredit-related goods.
(4) A lease agreement that includes an excess wear and use waiver must disclose all of the following:
(a) The total charge for the excess wear and use waiver.
(b) Any exclusions or limitations on the amount of excess wear and use which may be waived under the excess wear and use waiver.
(c) The terms, restrictions, or conditions governing cancellation of the excess wear and use waiver before the termination or expiration of the excess wear and use waiver, which may include an administrative fee of not more than $75.
(5) An excess wear and use waiver is not insurance for purposes of the Florida Insurance Code.
520.24 Rulemaking authority; standard disclosure form.
520.25 Penalties.
520.26 Exemptions.
520.20 Definitions.—As used in this part, the term:
(1) “Agreement” means a contract executed between a buyer or lessee and a seller that leases or sells a distributed energy generation system. For purposes of this part, the term includes retail installment contracts.
(2) “Buyer” means a person that enters into an agreement to buy a distributed energy generation system from a seller.
(3) “Distributed energy generation system” means a device or system that is used to generate or store electricity; that has an electric delivery capacity, individually or in connection with other similar devices or systems, of greater than one kilowatt or one kilowatt-hour; and that is used primarily for on-site consumption. The term does not include an electric generator intended for occasional use.
(4) “Lessee” means a person that enters into an agreement to lease or rent a distributed energy generation system.
(5) “Retail installment contract” means an agreement executed in this state between a buyer and a seller in which the title to, or a lien upon, a distributed energy generation system is retained or taken by the seller from the buyer as security, in whole or in part, for the buyer’s obligations to make specified payments over time.
(6) “Seller” means a person regularly engaged in, and whose business substantially consists of, selling or leasing goods, including distributed energy generation systems, to buyers or lessees. A seller that is also an installer must be licensed under chapter 489.
520.21 Applicability.—This part applies to agreements to sell or lease a distributed energy generation system and is supplemental to other provisions contained in part III related to retail installment contracts. If any provision related to retail installment contract requirements for a distributed energy generation system under this part conflicts with any other provision related to retail installment contracts, this part controls.
520.22 Safety compliance.—A seller who installs a distributed energy generation system must comply with applicable safety standards established by the Department of Business and Professional Regulation pursuant to chapter 489 and part IV of chapter 553.
520.23 Disclosures required.—Each agreement governing the sale or lease of a distributed energy generation system shall, at a minimum, include a written statement printed in at least 12-point type that is separate from the agreement, is separately acknowledged by the buyer or lessee, and includes the following information and disclosures, if applicable:
(1) The name, address, telephone number, and e-mail address of the buyer or lessee.
(2) The name, address, telephone number, e-mail address, and valid state contractor license number of the person responsible for installing the distributed energy generation system.
(3) The name, address, telephone number, e-mail address, and valid state contractor license number of the distributed energy generation system maintenance provider, if different from the person responsible for installing the distributed energy generation system.
(4) The customer contact center phone number for the Department of Business and Professional Regulation.
(5) A written statement indicating whether the distributed energy generation system is being purchased or leased.
(a) If the distributed energy generation system will be leased, the written statement must include a disclosure in substantially the following form: “You are entering into an agreement to lease a distributed energy generation system. You will lease (not own) the system installed on your property.”
(b) If the distributed energy generation system will be purchased, the written statement must include a disclosure in substantially the following form: “You are entering into an agreement to purchase a distributed energy generation system. You will own (not lease) the system installed on your property.”
(6) The total cost to be paid by the buyer or lessee, including any interest, installation fees, document preparation fees, service fees, or other fees.
(7) A payment schedule, including any amounts owed at contract signing, at the commencement of installation, at the completion of installation, and any final payments. If the distributed energy generation system is being leased, the written statement must include the frequency and amount of each payment due under the lease and the total estimated lease payments over the term of the lease.
(8) Each state or federal tax incentive or rebate, if any, relied upon by the seller in determining the price of the distributed energy generation system.
(9) A description of the assumptions used to calculate any savings estimates provided to the buyer or lessee, and if such estimates are provided, a statement in substantially the following form: “It is important to understand that future electric utility rates are estimates only. Your future electric utility rates may vary.”
(10) A description of any one-time or recurring fees, including, but not limited to, estimated system removal fees, maintenance fees, Internet connection fees, and automated clearinghouse fees. If late fees may apply, the description must describe the circumstances triggering such late fees.
(11) A statement notifying the buyer whether the distributed energy generation system is being financed and, if so, a statement in substantially the following form: “If your system is financed, carefully read any agreements and/or disclosure forms provided by your lender. This statement does not contain the terms of your financing agreement. If you have any questions about your financing agreement, contact your finance provider before signing a contract.”
(12) A statement notifying the buyer whether the seller is assisting in arranging financing of the distributed energy generation system and, if so, a statement in substantially the following form: “If your system is financed, carefully read any agreements and/or disclosure forms provided by your lender. This statement does not contain the terms of your financing agreement. If you have any questions about your financing agreement, contact your finance provider before signing a contract.”
(13) A provision notifying the buyer or lessee of the right to rescind the agreement for a period of at least 3 business days after the agreement is signed. This subsection does not apply to a contract to sell or lease a distributed energy generation system in a solar community in which the entire community has been marketed as a solar community and all of the homes in the community are intended to have a distributed energy generation system, or a solar community in which the developer has incorporated solar technology for purposes of meeting the Florida Building Code in s. 553.73.
(14) A description of the distributed energy generation system design assumptions, including the make and model of the major components, system size, estimated first-year energy production, and estimated annual energy production decreases, including the overall percentage degradation over the estimated life of the distributed energy generation system, and the status of utility compensation for excess energy generated by the system at the time of contract signing. A seller who provides a warranty or guarantee of the energy production output of the distributed energy generation system may provide a description of such warranty or guarantee in lieu of a description of the system design and components.
(15) A description of any performance or production guarantees.
(16) A description of the ownership and transferability of any tax credits, rebates, incentives, or renewable energy certificates associated with the distributed energy generation system, including a disclosure as to whether the seller will assign or sell any associated renewable energy certificates to a third party.
(17) A statement in substantially the following form: “You are responsible for property taxes on property you own. Consult a tax professional to understand any tax liability or eligibility for any tax credits that may result from the purchase of your distributed energy generation system.”
(18) The approximate start and completion dates for the installation of the distributed energy generation system.
(19) A disclosure as to whether maintenance and repairs of the distributed energy generation system are included in the purchase price.
(20) A disclosure as to whether any warranty or maintenance obligations related to the distributed energy generation system may be sold or transferred by the seller to a third party and, if so, a statement in substantially the following form: “Your contract may be assigned, sold, or transferred without your consent to a third party who will be bound to all the terms of the contract. If a transfer occurs, you will be notified if this will change the address or phone number to use for system maintenance or repair requests.”
(21) If the distributed energy generation system will be purchased, a disclosure notifying the buyer of the requirements for interconnecting the system to the utility system.
(22) A disclosure notifying the buyer or lessee of the party responsible for obtaining interconnection approval.
(23) A description of any roof warranties.
(24) A statement in substantially the following form: “You should consider the age and remaining life of your roof prior to installing a distributed energy generation system. Replacement of your roof may require reinstallment of the distributed energy generation system.”
(25) A disclosure notifying the lessee whether the seller will insure a leased distributed energy generation system against damage or loss and, if applicable, the circumstances under which the seller will not insure the system against damage or loss.
(26) A statement in substantially the following form: “You are responsible for obtaining insurance policies or coverage for any loss of or damage to the system. Consult an insurance professional to understand how to protect against the risk of loss or damage to the system.”
(27) A statement in substantially the following form: “Placing a distributed energy generation system on your roof may impact your future insurance premiums. You are responsible for contacting your insurance carrier, prior to entering into a purchase or lease agreement, to confirm whether your current policy or coverage will need to be modified upon installing the distributed energy generation system onto your dwelling.”
(28) A disclosure notifying the buyer or lessee whether the seller or lessor will place a lien on the buyer’s or lessee’s home or other property as a result of entering into a purchase or lease agreement for the distributed energy generation system.
(29) A disclosure notifying the buyer or lessee whether the seller or lessor will file a fixture filing or a State of Florida Uniform Commercial Code Financing Statement Form (UCC-1) on the distributed energy generation system.
(30) A disclosure identifying whether the agreement contains any restrictions on the buyer’s or lessee’s ability to modify or transfer ownership of a distributed energy generation system, including whether any modification or transfer is subject to review or approval by a third party.
(31) A disclosure as to whether the lease agreement may be transferred to a purchaser upon sale of the home or real property to which the system is affixed, and any conditions for such transfer.
(32) A blank section that allows the seller to provide additional relevant disclosures or explain disclosures made elsewhere in the disclosure form.
The requirement to provide a written statement under this section may be satisfied by the electronic delivery of a document within 24 hours after execution of the written statement containing the required statement if the intended recipient of the electronic document affirmatively acknowledges its receipt. An electronic document satisfies the font and other formatting standards required for the written statement if the format and the relative size of characters of the electronic document are reasonably similar to those required in the written document or if the information is otherwise displayed in a reasonably conspicuous manner.
520.24 Rulemaking authority; standard disclosure form.—
(1) The Department of Business and Professional Regulation shall adopt rules to implement and enforce the provisions of this part.
(2) The Department of Business and Professional Regulation shall, by January 1, 2018, publish standard disclosure forms that may be used to comply with the disclosure requirements of this part. Disclosures provided in substantially the form published by the department shall be regarded as complying with the disclosure requirements of this part.
(1) Any seller who willfully and intentionally violates any provision of this part commits a noncriminal violation, as defined in s. 775.08(3), punishable by a fine not to exceed the cost of the distributed energy generation system.
(2) In the case of a willful and intentional violation of this part, the owner may recover from the person committing such violation, or may set off or counterclaim in any action against the owner by such person, an amount equal to any finance charges and fees charged to the owner under the agreement, plus attorney fees and costs incurred by the owner to assert his or her rights under this part.
520.26 Exemptions.—The provisions of this part do not apply to the following:
(1) A person or company, acting through its officers, employees, brokers, or agents, that markets, sells, solicits, negotiates, or enters into an agreement for the sale or financing of a distributed energy generation system as part of a transaction involving the sale or transfer of the real property on which the system is or will be affixed.
(2) A transaction involving the sale or transfer of the real property on which a distributed energy generation system is located.
(3) A third party, including a local government, that enters into an agreement for the financing of a distributed energy generation system.
(4) The sale or lease of a distributed energy generation system that will be installed on nonresidential real property.
(5) The sale of a distributed energy generation system pursuant to an agreement that requires full payment of the system from the buyer to the seller no later than the date the system is installed by the seller or is delivered from the seller to the buyer or a third party for installation.
(6) A person, other than the seller or lessor, who installs a distributed energy generation system on residential property.
520.31 Definitions.—Unless otherwise clearly indicated by the context, the following words when used in this act, for the purposes of this act, shall have the meanings respectively ascribed to them in this section:
(1) “Branch” means any location, other than a licensee’s principal place of business, at which a licensee operates or conducts business under this act or which a licensee owns or controls for the purpose of conducting business under this act.
(2) “Cash price” means the price at which the seller, in the ordinary course of business, offers to sell for cash the property or service that is the subject of the transaction. At the seller’s option, the term “cash price” may include the price of accessories, services related to the sale, service contracts, and taxes. The term “cash price” does not include any finance charge.
(3) “Commission” means the Financial Services Commission.
(4) “Control person” means an individual, partnership, corporation, trust, or other organization that possesses the power, directly or indirectly, to direct the management or policies of a company, whether through ownership of securities, by contract, or otherwise. A person is presumed to control a company if, with respect to a particular company, that person:
(a) Is a director, general partner, or officer exercising executive responsibility or having similar status or functions;
(b) Directly or indirectly has the right to vote 10 percent or more of a class of a voting security or has the power to sell or direct the sale of 10 percent or more of a class of voting securities; or
(c) In the case of a partnership, has the right to receive upon dissolution or has contributed 10 percent or more of the capital.
(5) “Down payment” means the amount, including the value of any property used as a trade-in, paid to a seller to reduce the cash price of goods or services purchased in a credit sale transaction. A deferred portion of a down payment may be treated as part of the down payment if it is payable not later than the due date of the second otherwise regularly scheduled payment and is not subject to a finance charge.
(6) “Finance charge” means the cost of consumer credit as a dollar amount. The term “finance charge” includes any charge payable directly or indirectly by the buyer and imposed directly or indirectly by the seller as an incident to or a condition of the extension of credit. The term “finance charge” does not include any charge of a type payable in a comparable cash transaction.
(7) “Goods” means all personalty when purchased primarily for personal, family, or household use, including certificates or coupons issued by a retail seller exchangeable for personalty or services, but not including other choses in action, personalty sold for commercial or industrial use, money, motor vehicles or construction, mining, or quarrying equipment. The term “goods” includes such personalty which is furnished or used, at the time of sale or subsequently, in the modernization, rehabilitation, repair, alteration, improvement, or construction of real property as to become a part thereof, whether or not severable therefrom.
(8) “Holder” means the retail seller or an assignee of the retail seller.
(9) “Motor vehicle” means any device or vehicle operated over the public highways and streets of this state and propelled by other than muscular power, but does not include traction engines, road rollers, implements of husbandry and other agricultural equipment, and such vehicles as run only upon a track.
(10) “Office” means the Office of Financial Regulation of the commission.
(11) “Official fees” means fees and charges prescribed by law which actually are or will be paid to public officials for determining the existence of, or for perfecting, releasing, or satisfying, any security related to the credit transaction or the premium payable for any insurance in lieu of perfecting any security interest otherwise required by the creditor in connection with the transaction, if the premium does not exceed the fees and charges which would otherwise be payable to public officials.
(12) “Principal place of business” means the physical location designated on the licensee’s application for licensure, unless otherwise designated as required by this chapter.
(13) “Retail buyer” or “buyer” means a person who buys goods or obtains services from a retail seller in a retail installment transaction and not principally for the purpose of resale.
(14) “Retail installment contract” or “contract” means an instrument or instruments reflecting one or more retail installment transactions entered into in this state pursuant to which goods or services may be paid for in installments. It does not include a revolving account or an instrument reflecting a sale pursuant thereto.
(15) “Retail installment transaction” or “transaction” means a contract to sell or furnish or the sale of or the furnishing of goods or services by a retail seller to a retail buyer pursuant to a retail installment contract or a revolving account.
(16) “Retail seller” or “seller” means a person regularly engaged in, and whose business consists to a substantial extent of, selling goods to a retail buyer. The term also includes a seller who regularly grants credit to retail buyers pursuant to a retail installment contract or a revolving account for the purpose of purchasing goods or services from any other person.
(17) “Revolving account” or “account” means an instrument or instruments prescribing the terms of retail installment transactions which may be made thereafter from time to time pursuant thereto, under which the buyer’s total unpaid balance thereunder, whenever incurred, is payable in installments over a period of time and under the terms of which a finance charge is to be computed in relation to the buyer’s unpaid balance from time to time.
(18) “Sales finance company” means a person engaged in the business of purchasing retail installment contracts from one or more retail sellers. The term includes, but is not limited to, a bank or trust company, if so engaged. The term does not include the pledgee of an aggregate number of such contracts to secure a bona fide loan thereon.
(19) “Services” means work, labor, or other personal services furnished for personal, family, or household use, including but not limited to the delivery, installation, servicing, repair, or improvement of goods, and includes such work or labor furnished in connection with the modernization, rehabilitation, repair, alteration, improvement, or construction upon or in connection with real property.
(1) A person may not engage in or transact the business of a retail seller engaging in retail installment transactions as defined in this part or operate a branch of such business without a license, except that a license is not required for:
(a) A retail seller whose retail installment transactions are limited to the honoring of credit cards issued by dealers in oil and petroleum products licensed to do business in this state.
(b) A person licensed by the office under part I. This paragraph exempts only a person licensed under part I from the licensure requirements of this section. This paragraph does not exempt the licensee from the other sections of this part, and any violations of those sections may subject the licensee to disciplinary action.
(2) An application for a license under this part must be submitted to the office in such form as the commission may prescribe by rule. The commission may require each applicant to provide any information reasonably necessary to determine the applicant’s eligibility for licensure. The applicant shall also provide information that the office requires concerning any officer, director, control person, member, partner, or joint venturer of the applicant or any person having the same or substantially similar status or performing substantially similar functions or any individual who is the ultimate equitable owner of a 10-percent or greater interest in the applicant. The office may require information concerning any such applicant or person, including his or her full name and any other names by which he or she may have been known, age, social security number, residential history, qualifications, educational and business history, and disciplinary and criminal history. If the office determines that an application should be granted, it shall issue the license for a period not to exceed 2 years. A nonrefundable application fee of $175 shall accompany an initial application for the principal place of business and each application for a branch location of a retail installment seller. An application is considered received for purposes of s. 120.60 upon receipt of a completed application form as prescribed by commission rule, a nonrefundable application fee of $175, and any other fee prescribed by law.
(3) The nonrefundable renewal fee for a retail seller license shall be $175. Biennial licensure periods and procedures for renewal of licenses may also be established by the commission by rule. A license that is not renewed at the end of the biennium established by the commission shall revert from active to inactive status. An inactive license may be reactivated within 6 months after becoming inactive upon filing a completed reactivation form, payment of the nonrefundable renewal fee, and payment of a reactivation fee equal to the nonrefundable renewal fee. A license that is not reactivated within 6 months after becoming inactive automatically expires.
(4) A licensee may not transact business as a retail installment seller except under the name by which it is licensed. A license issued under this part is not transferable or assignable.
(5) The office may deny an initial application for a license under this part if the applicant or any officer, director, control person, member, partner, or joint venturer of the applicant is the subject of a pending criminal prosecution or governmental enforcement action, in any jurisdiction, until conclusion of such criminal prosecution or enforcement action.
(6) Each seller shall designate and maintain an agent in this state for service of process.
(1)(a) A retail installment contract shall be in writing, shall be signed by both the buyer and the seller, and shall be completed as to all essential provisions prior to the signing of the contract by the buyer.
(b) The printed portion of the contract, other than instructions for completion, shall be in at least 6-point type. The contract shall contain the following notice in substantially this form:
Notice to the Buyer
a. Do not sign this contract before you read it or if it contains any blank spaces.
b. You are entitled to an exact copy of the contract you sign. Keep it to protect your legal rights.
(c) The seller shall deliver to the buyer, or mail to the buyer at his or her address shown on the contract, a copy of the contract signed by the seller. Before the transaction is consummated, a copy of the retail installment contract, or a separate statement by which the disclosures required by this section are made and on which the buyer and seller are identified, shall be delivered to the buyer, except as provided in s. 520.35. Any acknowledgment by the buyer of delivery of a copy of the contract, if contained in the contract, shall appear directly above or adjacent to the buyer’s signature.
(d) The contract shall contain the names of the seller and the buyer, the place of business of the seller, the residence or place of business of the buyer as specified by the buyer, and a description of the goods.
(2) The contract shall contain the following:
(a) Amount financed.—The “amount financed,” using that term, and a brief description such as “the amount of credit provided to you or on your behalf.” The amount financed is calculated by:
1. Determining the cash price, and subtracting any down payment;
2. Adding any other amounts that are financed by the creditor and that are not part of the finance charge; and
3. Subtracting any prepaid finance charge.
(b) Finance charge.—The “finance charge,” using that term, and a brief description such as “the dollar amount the credit will cost you.”
(c) Total of payments.—The “total of payments,” using that term, and a descriptive explanation such as “the amount you will have paid when you have made all scheduled payments.”
(d) Total sale price.—In a credit sale, the “total sale price,” using that term, and a descriptive explanation, including the amount of any down payment, such as “the total price of your purchase on credit, including your down payment of $.” The total sale price is the sum of the cash price, the items described in subparagraph (a)2., and the finance charge disclosed under paragraph (b).
Except for the requirement in subsection (3) that a separate written itemization of the amount financed be provided, a contract which complies with the federal Truth in Lending Act, 15 U.S.C. ss. 1601 et seq., or any accompanying regulations shall be deemed to comply with the provisions of this subsection and subsection (3). However, in any proceeding to enforce the provisions of this section, the burden of alleging and proving compliance with the federal Truth in Lending Act shall be on the party claiming compliance.
(3) The seller shall provide a separate written itemization of the amount financed, which itemization shall disclose the following:
(a) The cash price;
(b) The amount of down payment;
(c) The difference between the amounts disclosed under paragraphs (a) and (b);
(d) The amounts, if any, included for insurance and other benefits, specifying the types of coverages and benefits; and
(e) Any taxes and official fees not included in the cash price.
The itemization required by this subsection may appear on a disclosure statement separate from all other material, or it may be placed on the same document with the contract or other information so long as it is clearly and conspicuously segregated from everything else on the document.
(4) The maximum number of payments and the amount and date of each payment need not be separately listed if the payments are stated in terms of a series of scheduled amounts and if the amount of the final payment does not exceed the scheduled amount of any preceding installment; in such case, the amount of the scheduled final payment may be stated as the remaining unpaid balance. The initial date for the payment of the first installment may be a calendar date or may refer to the time of delivery or installation.
(5) A retail installment contract need not be contained in a single document. If the contract is contained in more than one document, then one such document may be an original document applicable to purchases of goods or services to be made by the retail buyer from time to time, and in such case such document, together with the sales slip, account book, or other written statement relating to each purchase, shall set forth all of the information required by subsections (1) and (2) and shall constitute the retail installment contract for each such purchase.
(6)(a) Notwithstanding the provisions of any other law, the seller under a retail installment contract may charge, receive, and collect a finance charge which may not exceed the following rates: on the amount financed, $12 per $100 per year. The finance charge under this subsection shall be computed on the amount financed of each transaction, as determined under paragraph (2)(a), on contracts payable in successive monthly payments substantially equal in amount, for the period from the date of the contract to and including the date when the final installment thereunder is payable. When a retail installment contract is payable other than in successive monthly payments substantially equal in amount, the finance charge may be at the effective rates provided in this subsection, having due regard for the schedule of payments. The finance charge may be computed on the basis of a full month for any fractional-month period in excess of 10 days. Notwithstanding the other provisions of this subsection, a minimum finance charge not in excess of the following amounts may be charged on any retail installment contract: $12 on any retail installment contract involving an initial amount financed of $50 or more; $7.50 on a retail installment contract involving an initial amount financed of more than $25 and less than $50; and $5 on a retail installment contract involving an initial amount financed of $25 or less.
(b) The holder of a retail installment contract, upon request by the buyer, may extend the scheduled due date of all or any part of any installment. In the event the unpaid time balance of the contract is extended, the holder may, at his or her election, charge and collect for each 30 days’ extension an amount not to exceed one-twelfth of the maximum allowable rate per annum of the unpaid balance at the time of extension.
(7) No retail installment contract shall be signed by the buyer when it contains blank spaces to be filled in after it has been signed, except that, if delivery of the goods or services is not made at the time of execution of the contract, the identification of the goods or services and the due date of the first installment may be left blank and later inserted by the seller in the seller’s counterpart of the contract after it has been signed by the buyer. The buyer’s written acknowledgment, conforming to the requirements of paragraph (1)(c), of delivery of a copy of a contract shall be presumptive proof, in any action or proceeding, of such delivery and that the contract, when signed, did not contain any blank spaces as herein provided.
(8) The seller under any retail installment contract shall, within 30 days after execution of the contract, deliver or mail or cause to be delivered or mailed to the buyer at his or her aforesaid address any policy or policies of insurance the seller has agreed to purchase in connection therewith, or in lieu thereof a certificate or certificates of such insurance. The amount, if any, included for insurance shall not exceed the applicable premiums chargeable in accordance with the rates filed with the Office of Insurance Regulation of the commission; if any such insurance is canceled, unearned insurance premium refunds and any unearned finance charges thereon received by the holder shall, at his or her option, be credited to the final maturing installments of the contract or paid to the buyer, except to the extent applied toward the payment for similar insurance protecting the interests of the seller and the holder or either of them. The finance charge on the original transaction shall be separately computed:
(a) With the premium for the canceled or adjusted insurance included in the “amount financed”; and
(b) With the premium for the canceled insurance or the amount of the premium adjustment excluded from the “amount financed.”
The difference in the finance charge resulting from these computations shall be the portion of the finance charge attributable to the canceled or adjusted insurance, and the unearned portion thereof shall be determined by the use of the rule of 78ths. “Cancellation of insurance” occurs at such time as the seller or holder receives from the insurance carrier the proper refund of unearned insurance premiums. Nothing in this act shall impair or abrogate the right of a buyer to procure insurance from an agent and company of his or her own selection, as provided by the insurance laws of this state; and nothing contained in this act shall modify, alter, or repeal any of the insurance laws of this state.
(9) If the buyer so requests, the holder shall give or forward to the buyer a receipt for any payment when made in cash. At any time after the execution of a contract, but not later than 2 months after the last payment thereunder, the holder shall, upon written request of the buyer, give or forward to the buyer a written statement of the dates and amounts of payments and the total amount, if any, unpaid thereunder. Such a statement shall be supplied by the holder once without charge; if any additional statement is requested by the buyer, the holder shall supply such statement to the buyer at a charge not exceeding $1 for each additional statement so supplied.
(10) After payment of all sums for which the buyer is obligated under a contract, and upon written demand made by the buyer, the holder shall deliver or mail to the buyer, at his or her last known address, one or more good and sufficient instruments to acknowledge payment in full and shall release all security in the goods.
(11) Notwithstanding the provisions of any retail installment contract to the contrary, any buyer may prepay in full at any time before maturity the unpaid balance of any retail installment contract and in so paying such unpaid balance shall receive a refund credit thereon for such anticipation of payments. The amount of such refund shall represent at least as great a proportion of the finance charge, after first deducting therefrom an acquisition cost of $15, as the sum of the monthly balances beginning 1 month after prepayment is made bears to the sum of all the monthly balances under the schedule of payments in the contract. When the amount of such refund credit is less than $1, no refund need be made.
(12) The seller shall not request or accept a certificate of completion signed by the buyer prior to the actual delivery of the goods and completion of the work to be performed under the contract.
(13) As amended by chapter 79-592, Laws of Florida, chapter 79-274, Laws of Florida, which amended subsection (5):
(a) Shall apply only to loans, advances of credit, or lines of credit made on or subsequent to July 1, 1979, and to loans, advances of credit, or lines of credit made prior to that date if the lender has the legal right to require full payment or to adjust or modify the interest rate, by renewal, assumption, reaffirmation, contract, or otherwise; and
(b) Shall not be construed as diminishing the force and effect of any laws applying to loans, advances of credit, or lines of credit, other than to those mentioned in paragraph (a), completed prior to July 1, 1979.
(14) The seller under a retail installment contract may collect a $10 processing fee for each retail installment contract that is approved and activated. Such processing fee shall not be considered interest or finance charges pursuant to chapter 687.
520.345 Simple-interest contracts.—A retail installment contract under The Retail Installment Sales Act may provide that the rate of finance charge be calculated on a simple-interest basis subject to the following provisions:
(1) Instead of a finance charge computed on the amount financed as determined under s. 520.34(2), the seller may compute the finance charge at a simple-interest rate equivalent to the finance charge permitted by s. 520.34(6) on the unpaid balance as it changes from time to time or by any other method.
(2) The language in s. 520.34(6) which provides that the finance charge may be computed on the basis of a full month for any fractional-month period in excess of 10 days shall not be applicable to a simple-interest contract.
(3) The provisions of s. 520.34(11) which prescribe a refund credit upon prepayment in full before maturity of the unpaid balance of a retail installment contract shall not be applicable to a simple-interest contract.
(4) In the event the unpaid balance of a retail installment contract is extended, deferred, renewed, or restated, the holder may compute the refinance charge in accordance with the provisions of this section.
(1) Every revolving account shall be in writing and shall be completed prior to the signing thereof by the retail buyer. The printed portion, other than instructions for completion, of any revolving account executed on or after January 1, 1960, shall be in at least 6-point type. Any such account shall contain the names of the seller and the buyer, the place of business of the seller, the residence or place of business of the buyer as specified by the buyer, and substantially the following notice:
Notice to the Buyer
a. Do not sign this before you read it or if it contains any blank spaces.
b. You are entitled to an exact copy of the paper you sign.
A copy of any such account executed on or after January 1, 1960, shall be delivered or mailed to the retail buyer by the retail seller prior to the date on which the first payment is due thereunder. Any acknowledgment by the buyer of delivery of a copy of the account shall be in a size equal to at least 6-point type and, if contained in the account, shall appear directly above or adjacent to the buyer’s signature. No account executed on or after January 1, 1960, shall be signed by the buyer when it contains blank spaces to be filled in after it has been signed. The buyer’s acknowledgment, conforming to the requirements of this subsection, of delivery of a copy of an account shall be presumptive proof, in any action or proceeding, of such delivery and that the account, when signed, did not contain any blank spaces as herein provided. Every account executed on or after January 1, 1960, shall state the amount of, or the method of calculating, the finance charge to be charged and paid pursuant thereto or shall state that a finance charge not in excess of that permitted by this law will be charged and paid pursuant to such account. A revolving account agreement is considered to be signed or accepted by the buyer if, after a request for a revolving account, the agreement or application for a revolving account is in fact signed by the buyer, or if that revolving account is used by the buyer or by another person authorized by the buyer to use it. The seller bears the burden of proving authorized use.
(2)(a) The retail seller under a revolving account shall promptly supply the retail buyer thereunder with a statement as of the end of each monthly period (which need not be a calendar month), or other regular period agreed upon by the retail seller and the retail buyer, in which there is any unpaid balance thereunder, which statement shall recite the following:
1. The unpaid balance under the account at the beginning and end of the period, using the terms “previous balance” and “new balance”;
2. Unless otherwise furnished by the retail seller to the retail buyer by sales slip, memorandum, or otherwise, the cash price and the date of each purchase during the period;
3. The payments made by the retail buyer to the retail seller and any other credits to the retail buyer during the period, using the terms “payments” and “credits”;
4. The amount of the finance charge itemized, if any.
The items need not be stated in the sequence or order set forth in this paragraph, and additional items may be included to explain the computations made in determining the amount to be paid by the retail buyer.
(b) A statement which complies with the federal Truth in Lending Act, 15 U.S.C. ss. 1601 et seq., or any accompanying regulations shall be deemed to comply with the provisions of this subsection. However, in any proceeding to enforce the provisions of this section, the burden of alleging and proving compliance with the federal Truth in Lending Act shall be on the party claiming compliance.
(3) Notwithstanding the provisions of any other law, the seller under a revolving account may charge, receive, and collect a finance charge which may not exceed 15 cents per $10 per month, computed on all amounts unpaid under the revolving account from month to month (which need not be a calendar month) or other regular period, and a delinquency charge not to exceed $10 for each payment in default for a period of not less than 10 days, if the charge is agreed upon, in writing, between the parties before imposing any charge. If the amount of the finance charge so computed is less than $1 for any such month, a finance charge of $1 for any such month may be charged, received, and collected. If the regular period is other than such monthly period or if the unpaid amount is less than or greater than $5, the permitted finance charge shall be computed proportionately. Such finance charge may be computed for all unpaid balances within a range of not in excess of $10 on the basis of the median amount within such range, if as so computed such finance charge is applied to all unpaid balances within such range.
(1) If debts arising from two or more retail installment sales other than sales pursuant to a revolving account are secured by more than one security interest, or consolidated into one debt payable on a single schedule of payments and the debt is secured by security interests taken with respect to one or more of the sales, payments received by the seller are deemed, for the purpose of determining the amount of the debt secured by the various security instruments, to have been first applied to the payment of the debt arising from the sale first made. To the extent debts are paid according to this section, security interests in items of property terminate as the debt originally incurred with respect to each item is paid.
(2) Payments received by the seller upon a revolving account are deemed, for the purpose of determining the amount of the debt secured by the various security interests, to have been applied first to the payment of credit service charges in the order of their entry to the account and then to the payment of debts in the order in which the entries to the account showing the debts were made.
(3) If the debts consolidated arose from two or more sales made on the same day, payments received by the seller are deemed, for the purpose of determining the amount of the debt secured by the various security interests, to have been applied first to the payment of the smallest debt.
520.36 Mail order and telephone sales.—Retail installment contracts negotiated and entered into by mail or telephone without personal solicitation by salespersons or other representatives of the seller, when a catalog of the seller or other printed solicitation of business which is distributed and made available generally to the public clearly sets forth the cash price and other terms of sales to be made through such medium, may be made as provided in this section. All of the provisions of this part relating to contracts shall apply to such sales except that the seller shall not be required to deliver a copy of the contract to the buyer as provided in s. 520.34(1)(c), and if the contract when received by the seller contains any blank spaces, the seller may insert in the appropriate blank space the amounts of money and other terms which are set forth in the seller’s catalog or other printed solicitation which is then in effect. In lieu of sending the buyer a copy of the contract as provided in s. 520.34(1)(c), the seller shall deliver to the buyer, not later than the date the first payment is due, a written statement of all disclosures required by this part. The seller shall be required to deliver a copy of the contract to the buyer at any time not later than when the first payment is due.
520.37 Delinquency charges, attorney’s fees and court costs.—A retail installment contract may provide for payment by the buyer of a delinquency charge on each installment in default for a period not less than 10 days. Such charge may not exceed 5 percent of such installment. A retail installment contract or a revolving account may provide for the payment of reasonable attorney’s fees if referred for collection to an attorney not a salaried employee of the retail seller and for the payment of court costs.
520.38 Transfer of contracts.—Any retail seller may assign, pledge, hypothecate, or otherwise transfer a retail installment contract or revolving account to any person, firm or corporation on such terms and conditions and for such price as may be mutually agreed upon. Filing of the assignment, notice to the buyer of the assignment, and any requirement that any person maintain dominion over the payments under the contract or account or over the goods if repossessed, shall not be necessary to the validity of a written assignment or transfer of a contract or account as against creditors, subsequent purchasers, pledgees, mortgagees and lien claimants of the seller. Unless the buyer has notice of the assignment, payment thereunder made by the buyer to the last known owner of the contract or account shall be binding on all subsequent owners thereof.
(1) Any person who willfully and intentionally violates any provision of s. 520.995 or engages in the business of a retail seller engaging in retail installment transactions without obtaining a license as required by this part is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(2) In the case of a willful violation of this part with respect to any retail installment transaction, the buyer may recover from the person committing such violation, or may set off or counterclaim in any action against the buyer by such person, an amount equal to any finance charge and any fees charged to the buyer by reason of delinquency, plus attorney’s fees and costs incurred by the buyer to assert rights under this part.
520.40 Waiver.—Any waiver by the retail buyer of any provisions of this act or of any remedies granted to the buyer by this act shall be unenforceable and void.
520.42 Construction.—Nothing in this act shall be construed to affect any transaction covered by chapter 516 and part I of this chapter or any transaction by any banking institution, state or federal savings and loan association, or credit union.
(1) A person may not engage in the business of a sales finance company or operate a branch of such business without a license as provided in this section; however, a bank, trust company, savings and loan association, or credit union authorized to do business in this state is not required to obtain a license under this part. Any person authorized as a licensee or registrant pursuant to part III of chapter 494 is not required to obtain a license under this part in order to become an assignee of a home improvement finance seller.
(2) An application for a license under this part must be submitted to the office in such form as the commission may prescribe by rule. The commission may require each applicant to provide any information reasonably necessary to determine the applicant’s eligibility for licensure. The applicant shall also provide information that the office requires concerning any officer, director, control person, member, partner, or joint venturer of the applicant or any person having the same or substantially similar status or performing substantially similar functions or any individual who is the ultimate equitable owner of a 10-percent or greater interest in the applicant. The office may require information concerning any such applicant or person, including his or her full name and any other names by which he or she may have been known, age, social security number, residential history, qualifications, educational and business history, and disciplinary and criminal history. If the office determines that an application should be granted, it shall issue the license for a period not to exceed 2 years. A nonrefundable application fee of $175 shall accompany an initial application for the principal place of business and each branch location of a sales finance company. An application is considered received for purposes of s. 120.60 upon receipt of a completed application form as prescribed by commission rule, a nonrefundable application fee of $175, and any other fee prescribed by law.
(3) The nonrefundable renewal fee for a sales finance company license shall be $175. Biennial licensure periods and procedures for renewal of licenses may also be established by the commission by rule. A license that is not renewed at the end of the biennium established by the commission shall revert from active to inactive status. An inactive license may be reactivated within 6 months after becoming inactive upon filing a completed reactivation form, payment of the nonrefundable renewal fee, and payment of a reactivation fee equal to the nonrefundable renewal fee. A license that is not reactivated within 6 months after becoming inactive automatically expires.
(4) A licensee may not transact business as a sales finance company except under the name by which it is licensed. A license issued under this part is not transferable or assignable.
(5) The office may deny an initial application for a license under this part if the applicant or any officer, director, control person, member, partner, or joint venturer of the applicant is the subject of a pending criminal prosecution or governmental enforcement action, in any jurisdiction, until conclusion of such criminal prosecution or enforcement action.
(6) Each sales finance company shall designate and maintain an agent in this state for service of process.
(1) Any person who willfully and intentionally violates any provision of s. 520.995 or engages in the business of a sales finance company without obtaining a license is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(2) In the case of a willful violation of this part with respect to a retail installment transaction, the buyer may recover from the person committing such violation, or may set off or counterclaim in any action against the buyer by such person, an amount equal to any finance charge and any fees charged to the buyer by reason of delinquency, plus attorney’s fees and costs incurred by the buyer to assert rights under this part.
(1) “Banking institution” means any bank, bank and trust company, trust company, or any national banking association organized and doing business under the provisions of any state or of the United States.
(2) “Branch” means any location, other than a licensee’s principal place of business, at which a licensee operates or conducts business under this act or which a licensee owns or controls for the purpose of conducting business under this act.
(3) “Business day” means all calendar days except Sundays and the following legal public holidays: New Year’s Day, January 1; Birthday of Dr. Martin Luther King, Jr., January 15; Washington’s Birthday, the third Monday in February; Memorial Day, the last Monday in May; Independence Day, July 4; Labor Day, the first Monday in September; Columbus Day, the second Monday in October; Veterans’ Day, November 11; Thanksgiving Day, the fourth Thursday in November; and Christmas Day, December 25.
(4) “Cash price” means the price at which a home improvement finance seller, in the ordinary course of business, offers to sell for cash the property or service that is the subject of the transaction. At the seller’s option, the term “cash price” may include the price of accessories, services related to the sale, service contracts, and taxes. The term “cash price” does not include any finance charge.
(5) “Commission” means the Financial Services Commission.
(6) “Control person” means an individual, partnership, corporation, trust, or other organization that possesses the power, directly or indirectly, to direct the management or policies of a company, whether through ownership of securities, by contract, or otherwise. A person is presumed to control a company if, with respect to a particular company, that person:
(a) Is a director, general partner, or officer exercising executive responsibility or having similar status or functions;
(b) Directly or indirectly may vote 10 percent or more of a class of a voting security or sell or direct the sale of 10 percent or more of a class of voting securities; or
(c) In the case of a partnership, may receive upon dissolution or has contributed 10 percent or more of the capital.
(7) “Debt consolidation” means any money advanced to an owner or the owner’s assignee in any connection with a home improvement contract.
(8) “Down payment” means the amount paid in money and goods to the home improvement finance seller and allowances given by the home improvement finance seller to the buyer pursuant to a home improvement contract.
(9) “Finance charge” means the cost of consumer credit as a dollar amount. The term “finance charge” includes any charge payable directly or indirectly by the buyer and imposed directly or indirectly by the seller as an incident to or a condition of the extension of credit. The term “finance charge” does not include any charge of a type payable in a comparable cash transaction.
(10) “Goods” means all personal chattels which are furnished or used in home improvement.
(11) “Holder” of a home improvement contract or related instrument means the home improvement finance seller or assignee thereof.
(12) “Home improvement” means repair, replacement, remodeling, alteration, conversion, modernization, or improvement of, or addition to, any land or building which is to be used as a single-family residence or dwelling place when such construction is done pursuant to a home improvement contract and a security interest in the real property is retained. “Home improvement” does not include:
(a) The construction of a new home building or work done by a contractor or seller in compliance with a guarantee of completion of a new building project; or
(b) The sale of goods or materials by a seller who neither arranges to perform nor performs directly or indirectly any work or labor in connection with the installation of or application of the goods or materials.
(13) “Home improvement contract” or “contract” means a written agreement contained in one or more documents between a home improvement finance seller and an owner for the performance of a home improvement and includes all labor, materials, and services to be furnished when all or part of the contract price is to be paid in installments over a period of time greater than 90 days.
(14) “Home improvement finance seller” or “seller” means any person other than a bona fide employee of the owner who directly or indirectly enters into two or more home improvement contracts, each of which was for consideration of $500 or more, in any calendar year.
(15) “Home improvement sale” or “sale” means the sale of goods and furnishing of services or the furnishing of services by a home improvement finance seller to an owner pursuant to a home improvement contract.
(16) “Office” means the Office of Financial Regulation of the commission.
(17) “Official fees” means fees actually paid to the appropriate public officer for obtaining any permit; filing, recording, or releasing any judgment, mortgage, or other lien; or perfecting any security in connection with a home improvement contract.
(18) “Owner,” “retail buyer,” or “buyer” means any homeowner, tenant, or any other person who orders, contracts for, or purchases the services of a home improvement finance seller or the person entitled to the performance of the work of a home improvement finance seller pursuant to a home improvement contract.
(19) “Person” means an individual, partnership, association, business, corporation, banking institution, nonprofit corporation, common-law trust, joint stock company, or any other group of individuals, however organized.
(20) “Principal place of business” means the physical location designated on the licensee’s application for licensure, unless otherwise designated as required by this chapter.
(21) “Retail installment transaction,” “home improvement finance transaction,” or “transaction” means a contract to sell or furnish or the sale of or the furnishing of goods or services by a home improvement finance seller to an owner.
(22) “Sales finance company” means any person who directly or indirectly purchases, acquires, solicits, or arranges for the acquisition of home improvement contracts or connected obligations by purchase, discount, pledge, or otherwise.
(23) “Services” means labor furnished for home improvement.
(1) A person may not engage in or transact any business as a home improvement finance seller or operate a branch without first obtaining a license from the office, except that a banking institution, trust company, savings and loan association, credit union authorized to do business in this state, or licensee under part III of chapter 494 is not required to obtain a license to engage in home improvement financing.
(2) An application for a license under this part must be submitted to the office in such form as the commission may prescribe by rule. The commission may require each applicant to provide any information reasonably necessary to determine the applicant’s eligibility for licensure. The applicant shall also provide information that the office requires concerning any officer, director, control person, member, partner, or joint venturer of the applicant or any person having the same or substantially similar status or performing substantially similar functions or any individual who is the ultimate equitable owner of a 10-percent or greater interest in the applicant. The office may require information concerning any such applicant or person, including, but not limited to, his or her full name and any other names by which he or she may have been known, age, social security number, residential history, qualifications, educational and business history, and disciplinary and criminal history. If the office determines that an application should be granted, it shall issue the license for a period not to exceed 2 years. A nonrefundable application fee of $175 shall accompany an initial application for the principal place of business and each application for a branch location of a home improvement finance seller. An application is considered received for purposes of s. 120.60 upon receipt of a completed application form as prescribed by commission rule, a nonrefundable application fee of $175, and any other fee prescribed by law.
(3) The nonrefundable renewal fee for a home improvement finance license shall be $175. Biennial licensure periods and procedures for renewal of licenses may also be established by the commission by rule. A license that is not renewed at the end of the biennium established by the commission shall automatically revert from active to inactive status. An inactive license may be reactivated within 6 months after becoming inactive upon filing a completed reactivation form, payment of the nonrefundable renewal fee, and payment of a reactivation fee equal to the nonrefundable renewal fee. A license that is not reactivated within 6 months after becoming inactive automatically expires.
(4) A licensee may not transact business as a home improvement finance seller except under the name by which it is licensed. A license issued under this part is not transferable or assignable.
(5) The office may deny an initial application for a license under this part if the applicant or any officer, director, control person, member, partner, or joint venturer of the applicant is the subject of a pending criminal prosecution or governmental enforcement action, in any jurisdiction, until conclusion of such criminal prosecution or enforcement action.
(6) Each seller shall designate and maintain an agent in the state for service of process.
520.68 Persons not required to be licensed.—No home improvement finance seller’s or seller’s license shall be required under this act of any person when acting in any capacity or type of transaction set forth in this section:
(1) An individual who performs services for a home improvement finance seller for wages or salary.
(2) A plumber, electrician, architect, engineer, residential designer, or landscape architect who is required by state or local law to attain standards of competency or experience as a prerequisite to engaging in such craft or profession and who is acting exclusively within the scope of the craft or profession for which he or she is currently licensed pursuant to such other law. The installation of central heating and air-conditioning systems by such a person shall be deemed within the scope of such person’s craft or profession.
(3) A person who does not engage, in any manner, in two or more home improvements, each of which was for consideration of $500 or more, within a calendar year. This exemption does not apply if the work is divided and contracts for less than $500 are made for the purpose of evasion of this provision or otherwise.
(4) Any person engaged in the construction or erection of any building upon land owned by that person or in which such person has a substantial legal or equitable interest, which building the owner does not intend to occupy but intends to sell upon completion thereof or shortly thereafter.
(5) Any person licensed under chapter 527.
(6) Retail establishments, including employees thereof, which are licensed under part III of this chapter and which engage in home improvements as an incidental part of their business. However, such retail establishments and their employees shall be governed by all other provisions contained in this act.
520.69 Scope of license authority; scope of provisions.—
(1) All persons engaged in the home improvement business as defined herein shall be required to obtain a license under this act as well as any other licenses required by law.
(2) No mortgage broker’s license shall be required pursuant to chapter 494 of a person whose business is exclusively in home improvement contracts or related instruments.
(3) This act may not be construed to limit or restrict the power of a city or county to regulate the quality, performance, or character of work of contractors, including requiring submission to and approval by the city or county of plans and specifications for an installation before commencement of construction of the installation, inspection of work done, and regulation by a system of permits and inspections which are designed to secure compliance with, and aid in the enforcement of, applicable state and local building laws, or enforcement of other laws necessary for the protection of the public health and safety.
(4) Nothing in this section may be construed to authorize a city or county to enact ordinances or regulations relating to the qualifications necessary to engage in the home improvement business.
(1) No individual may concurrently represent more than one home improvement finance seller in the solicitation or negotiation of any home improvement contract from an owner. The use of a contract form which fails to disclose a named home improvement finance seller is prohibited. No employee of a seller may be authorized to select a home improvement finance seller on behalf of the owner.
(2) No employee of the seller shall accept or pay any compensation on or for a home improvement transaction other than from or for the home improvement finance seller represented with respect to the transaction.
520.71 Contract copy to owner.—Every home improvement finance seller shall furnish without charge a completely executed copy of the home improvement contract to the owner immediately after the owner signs such home improvement contract, and any acknowledgment of receipt thereof by the owner shall be in 10-point boldfaced type or larger.
520.72 Cancellation of contract.—Every home improvement finance seller or home improvement seller shall furnish to the buyer a notice of the right to rescind the contract. Either party to a home improvement contract may cancel the contract by the exercise of the right to rescind until midnight of the third business day following the execution of the contract by giving notice to the other party by either certified mail or registered mail. The party invoking this section is not liable to the other for any damages incurred by cancellation under this section.
520.73 Home improvement contract; form and content; separate disclosures.—
(1) Every home improvement contract shall be evidenced by a written agreement and shall be signed by the parties. The home improvement contract shall be in the form approved by the office and shall contain:
(a) The name, address, and license number of the home improvement finance seller;
(b) The names of the home improvement finance seller’s employees who solicited or negotiated the home improvement contract;
(c) The approximate dates when the work will begin and will be completed; and
(d) A description of the work to be done and the materials to be used.
(2) The home improvement contract shall also contain:
(a) The “amount financed,” using that term, and a brief description such as “the amount of credit provided to you or on your behalf.” The amount financed is calculated by:
1. Determining the cash price, and subtracting any down payment;
2. Adding any other amounts that are financed by the creditor and that are not part of the finance charge; and
3. Subtracting any prepaid finance charge;
(b) The “finance charge,” using that term, and a brief description such as “the dollar amount the credit will cost you”;
(c) The “total of payments,” using that term, and a descriptive explanation such as “the amount you will have paid when you have made all scheduled payments”;
(d) In a credit sale, the “total sale price,” using that term, and a descriptive explanation, including the amount of any down payment, such as “the total price of your purchase on credit, including your down payment of $.” The total sale price is the sum of the cash price, the items described in subparagraph (a)2., and the finance charge disclosed under paragraph (b);
(e) The amount of any money provided for debt consolidation;
(f) The interest charge for the amount advanced for debt consolidation;
(g) The total amount due under the home improvement contract, which shall be stated as a sum in dollars, less any down payment;
(h) The number of monthly payments and the amount of each payment; and
(i) The description of any collateral security taken or to be taken for the owner’s obligation under the home improvement contract.
Except for the requirements of subsection (1) and the provisions of subsection (3) which provide for a separate written itemization of the amount financed, a contract which complies with the federal Truth in Lending Act, 15 U.S.C. ss. 1601 et seq., or any accompanying regulations shall be deemed to comply with the provisions of this subsection and subsection (3). However, in any proceeding to enforce the provisions of this section, the burden of alleging and proving compliance with the federal Truth in Lending Act shall be on the party claiming compliance.
(3) The home improvement finance seller shall provide a separate written itemization of the amount financed, which itemization shall disclose the following:
(a) The cash price;
(b) The amount of down payment;
(c) The difference between the amounts disclosed under paragraphs (a) and (b);
(d) The amounts, if any, included for insurance and other benefits, specifying the types of coverages and benefits; and
(e) The official fees, survey charges, or permit charges actually incurred.
The itemization required by this subsection may appear on a disclosure statement separate from all other material, or it may be placed on the same document with the contract or other information so long as it is clearly and conspicuously segregated from everything else on the document.
(4) The home improvement contract shall be completed in full without any blank spaces to be filled in after the home improvement contract is signed by the owner.
(5) The home improvement contract shall contain the following notice, in substantially this form, and such other notices required by the public interest and specified by the commission by rule, in 10-point boldfaced type directly above the space provided for the signature of the owner:
Notice To Owner
a. Do not sign this home improvement contract in blank.
b. You are entitled to a copy of the contract at the time you sign. Keep it to protect your legal rights.
c. This home improvement contract may contain a mortgage or otherwise create a lien on your property that could be foreclosed on if you do not pay. Be sure you understand all provisions of the contract before you sign.
(6) The home improvement contract shall state whether workers’ compensation and public liability insurance are carried by the home improvement finance seller and if they are applicable to the work to be performed under the contract or if the home improvement finance seller is qualified as a self-insurer.
520.74 Provisions expressly prohibited.—No home improvement contract shall contain any provision by which:
(1) The buyer agrees not to assert against a home improvement finance seller a claim or defense arising out of the sale or agrees not to assert against an assignee such a claim or defense;
(2) In the absence of the buyer’s default in the performance of any of her or his obligations, the holder may arbitrarily and without reasonable cause accelerate the maturity of any part or all of the amount owing thereunder;
(3) The buyer waives any right of action against the home improvement finance seller or holder of the home improvement contract, or other person acting on her or his behalf, for any illegal act committed in the collection of payments under the home improvement contract;
(4) The buyer relieves the home improvement finance seller from liability for any legal remedies which the buyer may have against the home improvement finance seller under the contract or any separate instrument executed in connection therewith;
(5) The home improvement finance seller or holder or any person acting on behalf of the home improvement finance seller or holder is authorized to enter upon the premises of the buyer unlawfully;
(6) The home improvement finance seller or holder is entitled to liquidated damages in an amount which exceeds 10 percent of the cash price stated in the contract in the event of the buyer’s failure or refusal to accept delivery of the goods or performance of the services covered by the contract;
(7) The contract requires or entails the execution of any note or series of notes by the buyer which, when separately negotiated, will cut off as to third parties any right of action or defense which the buyer may have against the home improvement finance seller;
(8) Any power of attorney to confess judgment or any power of attorney;
(9) Any assignment of or order for the payment of wages, salary, commissions, or other compensation for services, or any part thereof, earned or to be earned.
520.75 Buyer’s waiver of statutory protection.—No act, agreement, or statement of any buyer under a home improvement contract shall constitute a valid waiver of any provision of this act intended for the benefit or protection of the buyer.
(1) The premium paid for any group credit life or other insurance shall be included in the home improvement contract.
(2) The home improvement contract shall state which party is to procure insurance.
(3) The amount, if any, included for such insurance shall not exceed the applicable premiums chargeable in accordance with rates filed with the Office of Insurance Regulation of the commission. If any such group credit life or other insurance is canceled, the refund for unearned insurance premiums received or receivable by the holder of the home improvement contract or the excess of the amount included in the contract for insurance over the premiums paid or payable by the holder of the contract together with, in either case, the unearned portion of the finance charge or other interest applicable thereto shall be credited to the final maturing installments of the home improvement contract. However, no such credit need be made if the amount would be less than $1.
(4) If the insurance is to be procured by the home improvement finance seller or holder, he or she shall, within 30 days after delivery of the goods and furnishing of the services under the home improvement contract, deliver or mail to the owner at his or her address as specified in the contract a copy of the policy or policies of insurance or a certificate or certificates of the insurance procured.
(1) The maximum finance charge included in a home improvement contract payable in substantially equal successive monthly installments beginning 1 month from the date the finance charge accrues shall not exceed $12 per $100 per annum. Such finance charge shall be computed on the principal amount financed on the contract, notwithstanding that the time balance is required to be paid in installments. The finance charge shall not accrue over a longer period than one which commences on the date of substantial completion of the contract and ends on the date when the final installment is payable. For a period less or greater than 12 months or for amounts less or greater than $100, the amount of the maximum finance charge shall be increased or decreased proportionately. A fractional monthly period of 15 days or more may be considered a full month. If the finance charge computed as above provided is less than $25, a minimum finance charge of $25 may be made.
(2) When a contract is payable other than in substantially equal successive monthly installments, as when payable in irregular or unequal installments either in amount or periods or in regular installments followed by or interspersed with an irregular, unequal, or larger installment or installments or if the finance charge accrues from a date more than 1 month before the first installment is payable, the finance charge may not exceed an amount which, having due regard for the schedule of installment payments, will provide the same yield as if the home improvement contract were payable in accordance with the standard payment terms stated in subsection (1).
(3) If amounts for debt consolidation are included in the home improvement contract, the finance charge shall be computed as in subsections (1) and (2), but the charge computed on the principal amount advanced for debt consolidation shall not exceed 10 percent simple interest or the rate for simple interest set in the general usury statute, chapter 687.
(4) The buyer may be charged for, and there may be collected from him or her, reasonable fees and costs actually to be paid for construction authorizations and similar permits issued by public agencies and for title search, title insurance, and services of an attorney relating to any real property mortgage, lien, or other encumbrance taken, granted, or reserved pursuant to the contract.
520.785 Simple-interest contracts.—A retail installment contract under The Home Improvement Sales and Finance Act may provide that the finance charge be calculated on a simple-interest basis subject to the following provisions:
(1) Instead of a finance charge computed on the amount financed as determined under s. 520.73(2), the seller may compute the finance charge at a simple-interest rate equivalent to the finance charge permitted by s. 520.78(1) on the unpaid balance as it changes from time to time or by any other method.
(2) The language in s. 520.78(1) which provides that the finance charge may be computed on the basis of a full month for any fractional-month period in excess of 15 days shall not be applicable to a simple-interest contract.
(3) The provisions of s. 520.84 which prescribe a refund credit upon prepayment in full before maturity of the unpaid balance of a retail installment contract shall not be applicable to a simple-interest contract.
(4) In the event the unpaid balance of a retail installment contract is extended, deferred, renewed, or restated, the holder may compute the refinance charge in accordance with the provisions of this section.
520.79 Unauthorized charges.—All costs and charges in connection with home improvement contracts which are not authorized by this act shall be unenforceable. Any payment of such costs or charges shall be applied to the next maturing installment or, if the contract has been fully paid, remitted to the owner, and the owner shall be entitled to recover all such costs or charges.
520.80 Mortgages, promissory notes.—Every promissory note or mortgage shall bear on the side of the note or mortgage which contains the maker’s signature the following legend in at least 10-point boldfaced type: “Payment of this note or mortgage is subject to the terms of a home improvement installment contract of even date between maker and payee or mortgagor and mortgagee.” The contract may require execution of a promissory note or mortgage.
(1) Upon completion of the home improvement for which the owner and the home improvement finance seller contracted, the seller shall prepare a certificate which shall be signed by both parties.
(2) The form of the certificate shall be prescribed by the commission.
520.82 Statement of account.—Upon written request from the owner, the holder of the home improvement contract shall deliver to the owner within 10 days from receipt of the written request a statement of the owner’s account showing the date and amount of all payments made or credited to the account and the total amount, if any, unpaid under the contract. Not more than two such statements shall be required in any 12-month period.
520.83 Cancellation of contract on payment in full.—
(1) For all home improvement contracts pursuant to which there is a lien, mortgage, or encumbrance upon the goods or real property, upon payment in full by the owner of the time sales price and other amounts lawfully due under a home improvement contract, the holder shall:
(a) Return to the owner the original instruments evidencing indebtedness under a home improvement contract which were signed by the owner or the owner’s sureties or guarantors in connection with such contract, excepting such instruments as are filed with a public official and retained in the files of such official;
(b) Release all security interest in the goods and real property affected by the contract;
(c) Deliver to the owner such good and sufficient assignments, releases of liens and mortgages on personal and real property, and such other instruments of title as may be necessary to vest the owner with complete evidence of title.
(2) For all other home improvement contracts, the holder, upon payment in full by the owner of the time sales price and other amounts lawfully due under the home improvement contract, shall furnish the owner with such instruments as the commission may by rule provide.
520.84 Credit to owner on prepayment.—Any buyer may pay in full at any time before maturity the debt of any home improvement contract and in so paying such debt shall receive a refund credit thereon for such anticipation of payments. The amount of such refund shall represent at least as great a proportion of the time price differential charge or other interest charge, after first deducting from such charge an acquisition cost of $25, as the sum of the monthly time balances after the month in which prepayment is made, bears to the sum of all the monthly time balances under the schedule of payments in the home improvement contract. When the amount of credit is less than $1 no refund need be made.
520.85 Delinquency and collection charges; court costs and attorney’s fees.—A home improvement contract may provide for the payment by the owner of a delinquency and collection charge on each installment in default for a period of not less than 10 days in an amount not in excess of 5 percent of such installment. However, only one such delinquency and collection charge may be collected on any installment, regardless of the period during which it remains in default. A contract may also provide for the payment of court costs actually incurred and of attorney’s fees not exceeding 20 percent of the amount due and payable under such contract, if it is referred to an attorney not a salaried employee of the seller or holder for collection.
(1) The holder of a home improvement contract, upon agreement in writing with the owner, may extend the scheduled due date, or defer the scheduled payment, of all or of any part of any installment. All terms of the agreement shall be in writing.
(2) The holder may charge and contract for the payment of an extension or deferral charge by the owner and collect and receive the same, but such charge may not exceed an amount equal to 1.5 percent per month simple interest on the amount of the installment or installments or part thereof extended or deferred during the period of extension or deferral. A minimum charge of $1 for the period of extension or deferral may be made in any case where the extension or deferral charge, when computed, amounts to less than $1.
(3) Such agreement may also provide for the payment by the owner of the additional cost to the holder of the contract of premiums for continuing in force until the end of such period of extension or deferral any insurance coverages provided for in the contract.
520.87 Receipt for cash payment; payment to assignor.—Whenever payment is made in cash on account of any home improvement contract, the person receiving such payment shall, at the time of receiving such payment, furnish to the person making such payment a written receipt showing the date, identification of the account, and the amount paid. Unless notice has been given to the owner of an assignment of a home improvement contract, payment thereunder or tender thereof by the owner to the last known holder of such contract shall be binding upon any holder or assignee thereof.
(1) No holder shall sell, transfer, or assign any obligation in connection with a home improvement contract or any evidence of indebtedness thereunder to any person who is not authorized as a sales finance company.
(2) Notice of any assignment shall be sent to the owner immediately after the assignment is made.
(3) No promissory note or other evidence of indebtedness may be negotiated or otherwise transferred without simultaneous delivery of the related contract.
(4) No right of action or defense arising out of the transaction which gave rise to the home improvement contract which the buyer has against the home improvement finance seller and which would be cut off by assignment shall be cut off by assignment of the contract to any third person, whether or not he or she acquired the contract in good faith and for value.
520.90 Prohibited acts.—The following acts are prohibited:
(1) Abandonment or willful failure to perform, without justification, any home improvement contract or project engaged in or undertaken by a home improvement finance seller or willful deviation from or disregard of plans or specifications in any material respect without the consent of the owner.
(2) Failure of a home improvement finance seller’s employee to account for or to remit to the home improvement finance seller any payment received in connection with a home improvement sale.
(3) Making any substantial misrepresentation in the procurement of a home improvement contract or making any false promise of a character likely to influence, persuade, or induce.
(4) Any fraud in the execution or in the material alteration of any contract, mortgage, promissory note, or other document incident to a home improvement finance transaction.
(5) Preparing or accepting any mortgage, promissory note, or other evidence of indebtedness upon the obligations of a home improvement finance transaction with knowledge that it recites a greater monetary obligation than the consideration for the home improvement work, which consideration may be a time sale price.
(6) Directly or indirectly publishing any advertisement relating to home improvements which contains an assertion, representation, or statement of fact which is false, deceptive, or misleading, provided that any advertisement which is subject to and complies with the then-existing rules, regulations, or guides of the Federal Trade Commission shall not be deemed false, deceptive, or misleading; or by any means advertising or purporting to offer the general public any home improvement work with the intent not to accept contracts for the particular work or at the price which is advertised or offered to the public.
(7) Willful or deliberate disregard and violation of the building laws of this state or of any political subdivision or of the safety, labor, or workers’ compensation insurance laws of this state.
(8) Doing any home improvement business with or through any person who is subject to the licensing requirements of this act with the knowledge that such person is not licensed as required.
(9) Misrepresentation of a material fact by an applicant in obtaining a license.
(10) Willful failure to notify the office of any change of control in ownership, management, business name, or location.
(11) Conducting a home improvement business in any name other than the one in which the home improvement finance seller is licensed.
(12) Willful failure to comply with any order, demand, or requirement lawfully made by the office.
(13) Knowingly or without the exercise of due care failing to comply with or violating any provision of this act.
(14) Willful failure to perform any written agreement with an owner.
(15) Willful misrepresentation or failure to disclose any matter which is required to be stated to or furnished to the owner.
520.91 Uttering a false completion certificate.—Any person who accepts or receives a completion certificate or other evidence that performance of a home improvement contract is complete or satisfactorily concluded, with knowledge that such document is false and that the performance is not completed, and who utters, offers, or uses such document in connection with making or accepting any assignment or negotiation of the right to receive any payment from the owner, under or in connection with a home improvement contract or for the purpose of obtaining or granting any credit or loan on the security of the right to receive any payment, is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
520.92 Compensation of other than licensee prohibited.—No home improvement finance seller shall pay, credit, or allow any consideration or compensation of any kind to any other home improvement finance seller, other than a licensee, for or on account of the performance of home improvement work or services except when the person or transaction to or for whom the consideration is to be paid is not subject to or is exempted from the licensing requirements of this act. However, after termination or revocation of a license, the licensee shall not be relieved of outstanding obligations and shall complete and be paid upon contracts made but not performed at the date of the termination or revocation.
(1) Any person who willfully and intentionally violates any provision of s. 520.995 or engages in the business of a home improvement finance seller or a sales finance company without obtaining a license as required by this act is guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(2) In the case of a willful violation of this act with respect to any home improvement sale or contract, the owner may recover from the person committing such violation, or may set off or counterclaim in any action against the owner by such person, an amount equal to any finance charge and any fees charged to the owner by reason of delinquency, plus attorney’s fees and costs incurred by the owner to assert rights under this part.
520.9965 Confidentiality of information relating to investigations and examinations.
520.997 Books, accounts, and records.
520.998 Regulatory Trust Fund.
520.999 Requirements of licensees.
520.993 Definitions.—The definitions contained within ss. 520.02, 520.31, and 520.61 apply to this part.
History.—ss. 34, 36, ch. 90-103; s. 4, ch. 91-429.
520.994 Powers of office.—
(1) The office may issue and serve subpoenas to compel the attendance of witnesses and the production of documents, papers, books, records, and other evidence before it in any matter pertaining to this chapter. The office may administer oaths and affirmations to any person whose testimony is required. If any person refuses to testify, produce books, records, and documents, or otherwise refuses to obey a subpoena issued under this section, the office may present its petition to a court of competent jurisdiction in or for the county in which such person resides or has its principal place of business, whereupon the court shall issue its rule nisi requiring such person to obey forthwith the subpoena issued by the office or show cause for failing to obey such subpoena. Unless the person shows sufficient cause for failing to obey the subpoena, the court shall forthwith direct such person to obey the subpoena, subject to such punishment as the court may direct, including, but not limited to, the restraint, by injunction or by appointment of a receiver, of any transfer, pledge, assignment, or other disposition of such person’s assets or any concealment, alteration, destruction, or other disposition of subpoenaed books, records, or documents as the court deems appropriate, until such person has fully complied with such subpoena and the office has completed its investigation or examination. The office is entitled to the summary procedure provided in s. 51.011, and the court shall advance the cause on its calendar. Costs incurred by the office to obtain an order granting, in whole or in part, its petition shall be taxed against the subpoenaed person, and failure to comply with such order is a contempt of court. Witnesses are entitled to the same fees and mileage as they are entitled to by law for attending as witnesses in the circuit court, unless such examination or investigation is held at the place of business or residence of the witness.
(2) In addition to any other powers conferred upon it to enforce or administer this chapter, the office may bring an action in any court of competent jurisdiction to enforce or administer any provision of this chapter, any rule or order adopted pursuant to this chapter, or any written agreement entered into with the office. In such action, the office may seek temporary or permanent injunction, appointment of a receiver or administrator, or an order of restitution. If in any such action the office alleges that five or more persons have been defrauded by acts constituting violations of this chapter, it shall state the circumstances constituting such fraud with particularity and may seek any appropriate remedy at law or in equity, provided the remedy does not impair any rights granted by law to any holder in due course as defined in 1s. 673.302.
(3) In addition to any other powers conferred upon it to enforce or administer this chapter, the office may issue and serve upon a person a cease and desist order whenever the office finds that such person is violating, has violated, or is about to violate any provision of this chapter, any rule or order adopted pursuant to this chapter, or any written agreement entered into with the office. Any such order shall contain a notice of the rights provided by ss. 120.569 and 120.57.
(4) In addition to any other powers conferred upon it to enforce or administer this chapter, the office may impose and collect an administrative fine against any person found to have violated any provision of this chapter, any rule or order adopted pursuant to this chapter, or any written agreement entered into with the office, in an amount not to exceed $1,000 for each violation.
(5) The office shall administer and enforce this chapter. The commission has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this chapter. The commission may adopt rules requiring electronic submission of any form, document, or fee required by this chapter if such rules reasonably accommodate technological or financial hardship. The commission may prescribe by rule requirements and procedures for obtaining an exemption due to a technological or financial hardship.
(1) The following acts are violations of this chapter and constitute grounds for the disciplinary actions specified in subsection (2):
(a) Failure to comply with any provision of this chapter, any rule or order adopted pursuant to this chapter, or any written agreement entered into with the office.
(b) Fraud, misrepresentation, deceit, or gross negligence in any home improvement finance transaction or retail installment transaction, regardless of reliance by or damage to the buyer or owner.
(c) Fraudulent misrepresentation, circumvention, or concealment of any matter required to be stated or furnished to a retail buyer or owner pursuant to this chapter, regardless of reliance by or damage to the buyer or owner.
(d) Willful imposition of illegal or excessive charges in any retail installment transaction or home improvement finance transaction.
(e) False, deceptive, or misleading advertising by a seller or home improvement finance seller.
(f) Failure to maintain, preserve, and keep available for examination, all books, accounts, or other documents required by this chapter, by any rule or order adopted pursuant to this chapter, or by any agreement entered into with the office.
(g) Refusal to permit inspection of books and records in an investigation or examination by the office or refusal to comply with a subpoena issued by the office.
(h) Criminal conduct in the course of a person’s business as a seller, as a home improvement finance seller, or as a sales finance company.
(i) Failure to timely pay any fee, charge, or fine imposed or assessed pursuant to this chapter or any rule adopted under this chapter.
(j) Using the name or logo of a financial institution, as defined in s. 655.005(1), or its affiliates or subsidiaries when marketing or soliciting existing or prospective customers if such marketing materials are used without the written consent of the financial institution and in a manner that would lead a reasonable person to believe that the material or solicitation originated from, was endorsed by, or is related to or the responsibility of the financial institution or its affiliates or subsidiaries.
(k) Payment to the office for a license or permit with a check or electronic transmission of funds that is dishonored by the applicant’s or licensee’s financial institution.
(2) Upon a finding by the office that any person has committed any of the acts set forth in subsection (1), the office may enter an order taking one or more of the following actions:
(a) Denying an application for a license pursuant to this chapter;
(b) Revoking or suspending a license previously granted pursuant to this chapter;
(c) Placing a licensee or an applicant for a license on probation for a period of time and subject to such conditions as the office may specify;
(d) Placing permanent restrictions or conditions upon issuance or maintenance of a license pursuant to this chapter;
(e) Issuing a reprimand; or
(f) Imposing an administrative fine not to exceed $1,000 for each such act.
(3) In addition to the acts specified in subsection (1), the following shall be grounds for denial of a license pursuant to this chapter, or for revocation, suspension, or restriction of a license previously granted:
(a) A material misstatement of fact in an initial or renewal application for a license;
(b) Having a license, registration, or the equivalent, to practice any profession or occupation denied, suspended, revoked, or otherwise acted against by a licensing authority in any jurisdiction for fraud, dishonest dealing, or any act of moral turpitude;
(c) Pleading nolo contendere to, or having been convicted or found guilty of, a crime involving fraud, dishonest dealing, or any act of moral turpitude, regardless of whether adjudication is withheld; or
(d) Being insolvent or having a demonstrated lack of honesty or financial responsibility.
(4) It is sufficient cause for the office to take any of the actions specified in subsection (2) as to any partnership, corporation, or association, if the office finds grounds for such action as to any member of the partnership, as to any officer or director of the corporation or association, or as to any control person, partner, or joint venturer of the partnership, corporation, or association.
(5) Each licensee licensed pursuant to this chapter is responsible for the acts of its employees and agents, if, with actual knowledge of such acts, it retained profits, benefits, or advantages accruing from such acts or if it ratified the conduct of its employee or agent as a matter of law or fact.
(1)(a) The office or its agent may, at intermittent periods, make such investigations and examinations of any licensee or other person as it deems necessary to determine compliance with this chapter. For such purposes, it may examine the books, accounts, records, and other documents or matters of any licensee or other person. It shall have the power to compel the production of all relevant books, records, and other documents and materials relative to an examination or investigation. Such investigations and examinations shall not be made more often than once during any 12-month period unless the office has good and sufficient reason to believe the licensee is not complying with the provisions of this chapter. Such examination fee shall be calculated on an hourly basis and shall be rounded to the nearest hour.
(b) The office shall conduct all examinations at a convenient location in this state unless the office determines that it is more effective or cost-efficient to perform an examination at the licensee’s out-of-state location. For an examination performed at the licensee’s out-of-state location, the licensee shall pay the travel expense and per diem subsistence at the rate provided by law for up to thirty 8-hour days per year for each examiner who participates in such an examination. However, if the examination involves or reveals possible fraudulent conduct of the licensee, the licensee shall pay the travel expenses and per diem subsistence provided by law, without limitation, for each participating examiner.
(2) The examination expenses incurred by the office in each examination shall be paid by the licensee examined. The expenses of the office incurred in each examination of a home improvement finance seller or of an employee representing such home improvement finance seller shall be paid by the home improvement finance seller. Expenses incurred for each examination of a sales finance company shall be paid by it. The examination expenses shall be paid by such licensee examined or such other person obligated to pay such examination expenses within 30 days after demand therefor by the office.
(3) Any retail buyer or owner having reason to believe that the provisions of this chapter have been violated may file with the office or the Department of Financial Services a written complaint setting forth the details of such alleged violations and the office upon receipt of such complaint, may inspect the pertinent books, records, letters, and contracts of the licensee and of the seller involved, relating to such specific written complaint.
520.9965 Confidentiality of information relating to investigations and examinations.—
(1)(a) Except as otherwise provided by this section, information relative to an investigation or examination by the office pursuant to this chapter, including any consumer complaint received by the office or the Department of Financial Services, is confidential and exempt from s. 119.07(1) until the investigation or examination is completed or ceases to be active. The information compiled by the office in such an investigation or examination shall remain confidential and exempt from s. 119.07(1) after the office’s investigation or examination is completed or ceases to be active if the office submits the information to any law enforcement or administrative agency for further investigation. Such information shall remain confidential and exempt from s. 119.07(1) until that agency’s investigation is completed or ceases to be active. For purposes of this section, an investigation or examination shall be considered “active” so long as the office or any law enforcement or administrative agency is proceeding with reasonable dispatch and has a reasonable good faith belief that the investigation or examination may lead to the filing of an administrative, civil, or criminal proceeding or to the denial or conditional grant of a license, registration, or permit. This section shall not be construed to prohibit disclosure of information which is required by law to be filed with the office and which, but for the investigation or examination, would be subject to s. 119.07(1).
(b) Except as necessary for the office to enforce the provisions of this chapter, a consumer complaint and other information relative to an investigation or examination shall remain confidential and exempt from s. 119.07(1) after the investigation or examination is completed or ceases to be active to the extent disclosure would:
1. Jeopardize the integrity of another active investigation or examination.
2. Reveal the name, address, telephone number, social security number, or any other identifying number or information of any complainant, customer, or account holder.
3. Disclose the identity of a confidential source.
4. Disclose investigative techniques or procedures.
5. Reveal a trade secret as defined in s. 688.002.
(c) In the event that office personnel or personnel of the former Department of Banking and Finance are or have been involved in an investigation or examination of such nature as to endanger their lives or physical safety or that of their families, then the home addresses, telephone numbers, places of employment, and photographs of such personnel, together with the home addresses, telephone numbers, photographs, and places of employment of spouses and children of such personnel and the names and locations of schools and day care facilities attended by the children of such personnel are confidential and exempt from s. 119.07(1).
(d) Nothing in this section shall be construed to prohibit the office from providing information to any law enforcement or administrative agency. Any law enforcement or administrative agency receiving confidential information in connection with its official duties shall maintain the confidentiality of the information so long as it would otherwise be confidential.
(e) All information obtained by the office from any person which is only made available to the office on a confidential or similarly restricted basis shall be confidential and exempt from s. 119.07(1). This exemption shall not be construed to prohibit disclosure of information which is required by law to be filed with the office or which is otherwise subject to s. 119.07(1).
(2) If information subject to subsection (1) is offered in evidence in any administrative, civil, or criminal proceeding, the presiding officer may, in his or her discretion, prevent the disclosure of information which would be confidential pursuant to paragraph (1)(b).
(3) A privilege against civil liability is granted to a person who furnishes information or evidence to the office, unless such person acts in bad faith or with malice in providing such information or evidence.
(1) Every licensee shall maintain, at the principal place of business, such books, accounts, and records of the business conducted under the license issued for such place of business as will enable the office to determine whether the business of the licensee contemplated by this chapter is being operated in accordance with the provisions of this chapter. The licensee shall make all such books, accounts, and records of business conducted under the license available at a convenient location in this state upon request of the office.
(2) A licensee, operating two or more licensed places of business in this state, may maintain the general control records of all such offices at any one of such offices, or at any other office maintained by such licensee, upon the filing of a written request with the office designating therein the office at which such control records are maintained.
(3) All books, accounts, and records of licensees, including any cards used in a card system, shall be preserved and available for examination by the office for at least 2 years after making the final entry therein.
(4) The commission may prescribe by rule the minimum information to be shown in the books, accounts, documents, and records of licensees so that such records will enable the office to determine compliance with this chapter. In addition, the commission may prescribe by rule requirements for the destruction of books, accounts, records, and documents retained by the licensee after completion of the time period specified in subsection (3).
(5) A licensee that is the subject of a voluntary or involuntary bankruptcy filing must provide notice of such filing to the office within 7 days after the filing date.
520.998 Regulatory Trust Fund.—All fees, charges, and fines collected by the office pursuant to this chapter shall be deposited in the State Treasury to the credit of the Regulatory Trust Fund under the office.
(1) Each licensee under this chapter shall report, on a form prescribed by rule of the commission, any change in the information contained in any initial application form or any amendment to such application not later than 30 days after the change is effective.
(2) Each licensee under this chapter shall report any changes in the partners, officers, members, joint venturers, directors, or control persons of any licensee or changes in the form of business organization by written amendment in such form and at such time as the commission specifies by rule.
(a) In any case in which a person or a group of persons, directly or indirectly or acting by or through one or more persons, proposes to purchase or acquire a controlling interest in a licensee, such person or group must submit an initial application for licensure before such purchase or acquisition at such time and in such form as the commission prescribes by rule.
(b) As used in this subsection, the term “controlling interest” means possession of the power to direct or cause the direction of the management or policies of a company whether through ownership of securities, by contract, or otherwise. Any person who directly or indirectly has the right to vote 25 percent or more of the voting securities of a company or is entitled to 25 percent or more of its profits is presumed to possess a controlling interest.
(c) Any addition of a partner, officer, member, joint venturer, director, or control person of the applicant who does not have a controlling interest and who has not previously complied with the provisions of ss. 520.03(2), 520.32(2), 520.52(2), and 520.63(2) shall be subject to such provisions unless required to file an initial application in accordance with paragraph (a). If the office determines that the licensee does not continue to meet licensure requirements, the office may bring administrative action in accordance with s. 520.995 to enforce the provisions of this chapter.
(d) The commission shall adopt rules pursuant to ss. 120.536(1) and 120.54 providing for the waiver of the application required by this subsection if the person or group of persons proposing to purchase or acquire a controlling interest in a licensee has previously complied with the provisions of ss. 520.03(2), 520.32(2), 520.52(2), and 520.63(2) with the same legal entity or is currently licensed with the office under this chapter.
S520.995 1d - FRAUD - EXCESS CHARGE RETAIL INSTALL/HOME IMPROV TRANS - M: F
S520.995 1e - FRAUD - MISLEAD DECEPTIVE AD RE HOME IMPROV FINANCE - M: F
S520.995 1f - PUBLIC ORDER CRIMES - FAIL TO KEEP REQUIRED RECORDS - M: F
S520.995 1g - PUBLIC ORDER CRIMES - REFUSE INSPECT REC/COMPLY W SUBPOENA - M: F
S520.995 1h - PUBLIC ORDER CRIMES - CRIM ACT SELLR/HOME IMPROV FINANCE/SALES FINAN - M: F
S520.995 1i - PUBLIC ORDER CRIMES - FAIL TO TIMELY PAY FEE CHARGE FINE - M: F
Civil Citations / Citable Offenses under S520
R or S next to points is Mandatory Revocation or Suspension
S316.520 LOAD DROPPING/SHIFTING/LEAKING/BLOWING OFF & NOT COVERED [See 318.19(4) - mandatory hearing required] - Points on Drivers License: 0
S316.520 LOAD DROPPING/SHIFTING/LEAKING/BLOWING OFF & NOT COVERED; Resulting in serious bodily injury or death (criminal) - Points on Drivers License: 0 S
