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Financial Services Law Insights and Observations

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  • District Court denies MSJ in FDCPA case

    Courts

    On October 19, the U.S. District Court for the Middle District of Florida denied a defendant’s motion for judgment without prejudice concerning allegations that it knowingly ignored cease-and-desist letters sent by an individual while the individual had a pending bankruptcy petition. The plaintiff allegedly incurred a debt that was placed with the defendant for collection. After, the plaintiff sought protection under the Bankruptcy Code. During the bankruptcy case, the defendant allegedly sent the plaintiff text messages to collect the debt, the plaintiff responded with a cease-and-desist letter, and then the defendant sent the plaintiff a collection letter. The plaintiff sent another cease and desist letter and the defendant sent four more collection letters. Based on the defendant’s post-petition actions, the plaintiff sued for FDCPA and Florida Consumer Collection Practices Act violations. The defendant argued that the plaintiff failed to disclose this lawsuit in her bankruptcy case, which would result in the FDCPA case being dismissed on judicial estoppel grounds. However, the court found that while the plaintiff omitted the name and specific circumstances of her claims against the defendant, she “put the Bankruptcy Court, trustee, and creditors on notice she had a claim against a creditor and properly sought approval from the Bankruptcy Court before retaining counsel to pursue it.” The court went on to state that if the plaintiff “intended to deceive creditors or others in bankruptcy, filing the Application strayed from that intent,” and that “the filing mitigates any prejudice claimed by [the defendant].”

    Courts Florida FDCPA Debt Collection Bankruptcy State Issues

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  • Florida reminds lenders of their credit reporting requirements under the CARES act

    State Issues

    On February 10, the Florida Office of Financial Regulation released a set of “Compliance Tips” reminding lenders and their servicers that they may be required to report certain delinquent loans as “current” pursuant to the CARES Act. The guidance reminds lenders and loan servicers that under the federal CARES Act, those consumers who were not delinquent as of April 1, 2020 and who subsequently received an accommodation and are complying with the accommodation agreement should be reported as “current.” The tips also urged lenders to be proactive with borrowers to resolve credit reporting errors. Lastly, the tips advised lenders to seek out how reporting errors may have been made, and implement additional internal controls to ensure similar errors do not reoccur.

    State Issues Covid-19 Florida Lending Credit Report CARES Act

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  • FTC, Florida issue TRO against rate-reduction operation

    Federal Issues

    On July 16, the FTC and the Florida attorney general announced that the U.S. District Court for the Middle District of Florida granted a temporary restraining order against an allegedly fraudulent credit card interest rate reduction operation. According to the complaint, the operation violated the FTC Act, the Telemarketing Sales Rule, and the Florida Deceptive and Unfair Trade Practices act by targeting “financially distressed consumers and older adults” through telemarketing phone calls promising to substantially reduce their credit card interest rates and charging consumers upfront fees, ranging from $995 to $3,995. The operation typically charged the fees “during, or immediately following, the telemarketing call, often by using remotely created payment orders” against the consumer’s checking account or credit card. The complaint asserts that consumers often did not receive permanently reduced credit card interest rates, nor did they save “thousands of dollars on their credit card debt,” as promised. Beyond the temporary restraining order, the FTC is seeking a permanent injunction, restitution, and civil money penalties.

    Federal Issues FTC State Issues State Attorney General Florida FTC Act Telemarketing Sales Rule Courts

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  • Florida Office of Financial Regulation issues emergency order regarding certain filing deadlines

    State Issues

    On June 26, the Florida Office of Financial Regulation issued Emergency Order 2020-04, which extends filing deadlines for certain licenses. Specifically, any deadlines falling in May 2020 for mortgage brokers and lenders to file mortgage call reports, money services businesses to file quarterly reports, and for both to file financial reports have been suspended and tolled for a period of 30 days from the existing filing deadlines, unless extended by subsequent order. Additionally, the deadline occurring in the months of March, April, or May for any holder of a securities registration to file an annual updating amendment or financial statement is suspended and tolled through June 30, 2020, unless extended by subsequent order.

    State Issues Covid-19 Florida Licensing Mortgage Broker Mortgages Mortgage Lenders Money Service / Money Transmitters Securities

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  • Florida extends foreclosure and eviction moratoriums until July 1

    State Issues

    On June 1, Florida’s governor issued Executive Order Number 20-137 extending the state’s foreclosure and eviction moratorium (previously covered here) until July 1.

    State Issues Florida Foreclosure Evictions Mortgages

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  • Florida regulator reminds money transmitters of license renewal extensions

    State Issues

    On May 4, the Florida Office of Financial Regulation reminded Money Transmitter Part II licensees that the deadline to renew licenses has been extended to June 1, 2020 (previously covered here). Licensees that fail to renew by June 1 will be considered inactive and will need to pay an additional fee to reactivate the license. Inactive licenses not renewed by July 30, 2020 will expire.

    State Issues Covid-19 Florida Fintech Licensing Money Service / Money Transmitters

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  • Florida expands motor vehicle retail installment initial payment rule

    State Issues

    On April 17, the commissioner of the Florida Office of Financial Regulation issued Emergency Order 2020-03, which temporarily expands the motor vehicle retail installment initial pay rule. The order permits a motor vehicle retail installment seller licensed under Chapter 520 of the Florida Statues to allow the first payment of a motor vehicle retail installment contract to be scheduled up to 90 days from the date of the loan.

    State Issues Covid-19 Florida Retail Banking Auto Finance

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  • Florida Office of Financial Regulation issues guidance regarding steps taken to keep staff and stakeholders safe

    State Issues

    In April, the Florida Office of Financial Regulation (OFR) provided information regarding its staff and stakeholders.  The guidance provides that OFR is closed to the public and staff are teleworking.  Further, registration staff are continuing to process registration applications and examination staff are conducting streamlined, remote examinations using phone and email correspondence.

    State Issues Covid-19 Florida Examination

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  • Florida issues executive order suspending the assessment and collection of taxation for notes and obligations under the CARES Act

    State Issues

    On April 6, the Florida governor issued an executive order suspending the assessment and collection of excise taxes on documents imposed pursuant to Chapter 201 of the Florida statutes for all notes and other written obligations made pursuant to Title I of the CARES Act (the Paycheck Protection Program). The Department of Revenue is directed to issue an emergency order establishing that taxation imposed under Chapter 201 on such notes and obligations is not owed as a result of the suspension.

    State Issues Covid-19 Florida SBA CARES Act

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  • Florida Office of Financial Regulation encourages small businesses to take advantage of CARES relief

    State Issues

    On April 2, the Florida Office of Financial Regulation promoted the economic relief available for small businesses in the federal CARES Act signed into law by President Trump on March 27. The Florida Chief Financial Officer Jimmy Patronis and OFR Commissioner Russell Weigel, III were both quoted in support of the bill and encouraged small businesses to take advantage of the relief offered.

    State Issues Florida Covid-19

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