HAWAII REVISED STATUTES VOLUME 5 TITLES 21-23, CHAPTERS 371-425 [8410-3] Credit union review board; powers and duties. (a) There shall be a credit union review board consisting of five members appointed pursuant to section 26-34 by the governor who shall also designate the chairman of the board. There shall be at least one member from each of the counties who shall serve for four years, except that the initial terms of the first members, other than the chairman, taking office shall expire as follows: one on December 31 after the year that this chapter becomes law and one at the end of each succeeding calendar year thereafter. The governor shall appoint persons of tested credit union experience and who are members of credit unions operating under this chapter. However, until such time that there are credit unions operating under this chapter, the governor may make temporary appointments to the board of persons with tested credit unions experience from any credit union operating in the State. The terms and number of these temporary appointees will terminate as the number of credit unions become operative under this chapter. to: (b) The powers and duties of the board shall include, but not be limited (1) Advising the commissioner, supervisor of credit unions, and others in improving the condition and service of credit unions; (2) Reviewing the acts and decisions of the commissioner in relation to credit unions; (3) Serving as an appeal board for credit unions and performing other review functions in relation to credit unions as are provided by law; (4) Issuing subpoenas, taking testimony, and administering oaths to wit nesses; (5) Making available the official actions of the commissioner for inspection of the board; (6) Making necessary recommendations as to procedural rules and regulations pursuant to chapter 91; (7) Adopting rules to safeguard the interest of depositors and shareholders; and (8) Keeping detailed minutes of each board meeting. (c) Each member of the board and all employees of the board shall hold in confidence all information received in connection with their official duties and shall not release such information unless authorized by law. Any member or employee of the board violating this subsection shall be guilty of a misdemeanor. (d) Three members of the board present shall constitute a quorum and a majority vote of those present shall prevail. No member of the board shall be qualified to act in any matter involving a credit union of which he is an officer, director, committeeman, member, employee, or to which he is indebted. The members of the board shall serve without compensation but shall be reimbursed for any expenses incurred in the performance of their duties. [L 1973, c 194, pt of §1] Laws 1976, c. 76–168, us amended by Laws 1977, c. 77–457, § 1, the Regulatory Reform Act of 1976, which provides for legislative review of programs and functions which regulate professions, occupations, business, industry and other endeavors in Florida, provided in section 3 of the law for repeal of part 5 of this chapter on July 1, 1982. For the provisions directing the regulatory review and a listing of all statutes affected by Laws 1976, c. 76–168, see § 11.81 and notes thereunder. Cross References Consumer protection organizations, see i 501.011 et seq.. Solicitation of legal services, see ! 877.02. Unfair trade practices and consumer protection, see 817.76 et seq. 559.55 Definitions [Repealed by Laws 1978, c. 76–168, § 3, eff. July 1, 1982. See § 11.61] The following terms shall, unless the context otherwise indicates, have the following meanings for the purpose of this part: (1) "Claim” or “consumer claim" means any obligation for the payment of money or its equivalent arising out of a transaction wherein credit has been offered or extended to a natural person, and the money, property, or service which was the subject of the transaction was primar.ly for personal, family, or household purposes. The term includes an obligation of a natural person who is a comaker, endorser, guarantor, or surety as well as the natural person to whom such credit was originally extended. (2) “Debtor" or "consumer" means any natural person who owes, or who is alleged to owe, a consumer claim. (3) "Creditor" means any person to whom a consumer claim is owed, due, or alleged to be owed or due. (4) (a) "Collection agency" means any person who, by himself or through others, directly or indirectly, in whole or in part: 1. Attempts to collect or collects consumer claims owed or alleged to be owed to another person; 2. Solicits consumer claims for collection; or & Furnishes collection systems carrying a name which simulates or tends to simulate a collection agency or furnishes letters, notices, procedures, or any other forms or methods designed to enforce the collection of a consumer claim for any other person, by creating or tending to create the impression that such notice, procedure, or other form or method was sent or initiated by a person other than the creditor. The term includes any creditor or assignee for value who attempts to collect or collects consumer claims under a fictitious name. (b) "Collection agency" does not include: 1. Attorneys at law so long as they are retained by their clients to collect or to solicit or obtain payment of such clients' consumer claims in the usual course of the practice of their profession and while using their professional name: 2. A person employed for compensation in the capacity of collecting consumer claims for his employer, or in a similar capacity, unless acting as an Independent contractor; & Banks, including trust departments thereof, fiduciaries, savings and loan associations, building and loan associations, institutions operating under chapters 516 and 518, Florida Statutes, and other financing and lending institutions; 4 Bank holding companies registered under the Bank Holding Company Act of 1956, 12 U.S.Code 1841-1849, as amended, and their subsidiaries, $ 559.55 TRADE, COMMERCE, INVESTMENTS provided that they perform collection services only for their subsidiaries or their parent holding company and its subsidiaries; 5. Title insurers and abstract companies while in the usual course of an escrow business; 6. Licensed real estate brokers and licensed real estate salesmen while acting in the usual course of their profession; 7. Employees of a collection agency which is licensed under this part; 8. Common carriers regulated by the Florida Public Service Commission, acting in the usual course of their business; 9. Public officers acting in their official capacities and persons acting pursuant to court order; 10. Mortgage bankers operating under Chapter 494, Florida Statutes, and federal housing administration or veterans administration approved mortgagees collecting their own accounts or the accounts of other such lenders; and 11. Mortgage brokers regulated under chapter 494, Florida Statutes, acting in the usual course of their business. (5) "Division" means the division of general regulation of the department of business regulation. (6) "Department" means the department of business regulation. (7) "License" means a collection agency license or a branch office license. (8) (a) "Doing business within this state" means entering the State of Florida physically to perform any activity included in the definition of a collection agency in subsection (4), or doing the same from within or without the state by telephone, telegram, mail, or any other form of communication. (b) "Doing business within this state" does not include the placing of consumer claims for collection with collection agencies licensed under this part. (9) "Certificate holder" means any natural person who has been issued a certificate of qualification by the division. (10) "Supervisor" means any natural person who is directly in charge of, and who directs, the daily operation of a collection agency or branch office thereof. Laws 1972, c. 72-81, § 1, eff. Oct. 1, 1972. 118 U.S.C.A. § 1841 to 1849. Laws 1972. c. 72-81, 25, provided: Library references Index to Notes Collection agency 1 Construction and application The Consumer Collection Practices Act applied to private individual who made an oral, noninterest bearing loan to a friend. Heard v. Mathis, App., 344 So.2d 651 (1977). A noninterest bearing loan, either oral or written, and whether paid to commercial institution or to any individual, is subject to regulation of the Consumer Collection Practices Act. Id. This part governing consumer collection practices is not restricted to collec tion agencies, but includes all allegedly unlawful attempts at collecting consumer claims. Williams v. Streeps Music Co., Inc., App., 333 So.2d 65 (1976). Threatening telephone calls made by business concerns to contracting consumers to the effect that their credit rating will be ruined" and that, should the case go to court, they will "automatically lose" are acts and practices that violate 5 of the Federal Trade Commission Act and 501.204, which prohibits unfair and deceptive acts and practices in the conduct of any trade or business. These practices are also in violation of this part "Consumer Collection Practices. Op.Atty. Gen., 07732, March 28, 1977. 1. Collection agency Under statutes allowing a debtor to bring a civil action against "a person" violating provisions of this part providing that "no person shall engage in certain prohibited consumer collection practices, word "person" was not limited to collection agencies, but applied to persons generally and included all corporations. Cook v. Blazer Financial Services, Inc., App., 332 So.2d 677 (1976). § 559.70 TRADE, COMMERCE, INVESTMENTS 559.70 Enforcement [Repealed by Laws 1976, c. 76–168, § 3, eff. July 1, 1982. See § 11.61] The division shall transmit such complaints and information made available to it when it deems it advisable to the office of the appropriate state attorney for prosecution if warranted. Laws 1972, c. 72–81, § 16, eff. Oct. 1, 1972. Library references Licenses 421. C.J.B. Licenses § 37. 559.71 Applicability of this part [Repealed by Laws 1976, c. 76–168, § 3, eff. July 1, 1982. See § 11.61] (1) Any collection agency in the business prior to October 1, 1972, shall receive a license from the division automatically'upon filing with the division a proper application for license and certificates of qualification, making payment of fees, and producing the approved bond within four months after October 1, 1972. Any such agency may retain employees collecting claims prior to October 1, 1972 without regard to the provisions of § 559.65. (2) Tax collectors in the various counties of the state shall notify persons obtaining occupational licenses to operate collection agencies of the license requirements of this part and shall notify the division of all persons obtaining occupational licenses to operate collection agencies. Laws 1972, c. 72–81, § 17, eff. Oct. 1, 1972. Library references Licenses 8(1), .C.J.8. Licenses }} 2, 13. 559.72 Prohibited practices generally [Repealed by Laws 1976, c. 76–168, § 3, eff. July 1, 1982. See § 11.61] In collecting consumer claims, whether or not licensed by the division, no person shall: (1) Simulate in any manner a law enforcement officer or a representative of any governmental agency; (2) Use or threaten force or violence; (3) Tell a debtor who disputes a consumer claim that he or any person employing him will disclose to another, orally or in writing, directly or indirectly, information affecting the debtor's reputation for credit worthiness without also informing the debtor that the existence of the dispute will also be disclosed as required by subsection (6); // (4) Communicate or threaten to communicate with a debtor's employer prior to obtaining final judgment against the debtor, unless the debtor gives. his permission in writing to contact his employer or acknowledges in writing the existence of the debt after the debt has been placed for collection, but this shall not prohibit a person from telling the debtor that his employer will be contacted if a final judgment is obtained; (5) Disclose to a person other than the debtor or his family information affecting the debtor's reputation, whether or not for credit worthiness, with knowledge or reason to know that the other person does not have a legitimate business need for the information or that the information is false; (6) Disclose information concerning the existence of a debt known to be reasonably disputed by the debtor without disclosing that fact. If a disclosure is made prior to such reasonable dispute having been asserted and written notice is received from the debtor that any part of the claim is disputed and if such dispute is reasonable, the person who made the original disclosure shall reveal upon the request of the debtor within thirty days the details of the dispute to each person to whom disclosure of the debt without notice of the dispute was made within the preceding ninety days; (7) Willfully communicate with the debtor or any member of his family with such frequency as can reasonably be expected to harass the debtor TRADE, COMMERCE, INVESTMENTS § 559.72 or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of his family: (8) Use profane, obscene, vulgar, or willfully abusive language in communicating with the debtor or any member of his family; (9) Claim, attempt, or threaten to enforce a consumer claim when such person knows that the claim is not legitimate or some other legal right when such person knows that the right does not exist; (10) Use a communication which simulates in any manner legal or judicial process or which gives the appearance of being authorized, issued or approved by a government, governmental agency, or attorney-at-law, when it is not; (11) Communicate with a debtor under the guise of an attorney by using the stationery of an attorney or forms or instruments which only attorneys are authorized to prepare; (12) Orally communicate with a debtor in such a manner as to give the false impression or appearance that such person is or is associated with an attorney; (13) Advertise or threaten to advertise for sale any claim as a means to enforce payment except under court order or when acting as an assignee for the benefit of a creditor; (14) Publish or post, threaten to publish or post, or cause to be published or posted before the general public individual names or any list of names of consumers, commonly known as a deadbeat list, for the purpose of enforcing or attempting to enforce collection of consumer claims; (13) Refuse to provide adequate identification of himself, if not employed by a collection agency, or, if employed by a collection agency, of himself and the collection agency that he represents when requested to do so by a debtor from whom he is collecting or attempting to collect a consumer claim; or (16) Mail any communication to a debtor in an envelope or postcard with words typed, written, or printed on the outside of the envelope or postcard calculated to embarrass the debtor. An example of this would be an envelope addressed to "Deadbeat, John Doe." Laws 1972, c. 72–81, § 18, eff. Oct. 1, 1972. Law Review Commentaries First Amendment-no sword for unscrupulous creditors. 7 Stetson Intramural L. Rev. (Fla.) 41 (1977). Library references Licenses 40. C.J.S. Licenses ¡¡ 66, 67, 78. Index to Notes Construction and application 1 Validity Public interest in proscribing harassment of a debtor through contact with his employer about an obligation to a third party transcends the finance company's interest in choosing that particular means of collecting a debt so that statute prohibiting such communications does not unconstitutionally abridge finance company's right of free speech. Harris v. Beneficial Finance Co. of Jacksonville, 338 So.2d 196 (1976), certiorari denied 97 S.Ct. 1591, 430 U.S. 950, 51 L.Ed.2d 800. Since this section prohibiting communications to a debtor's employee in order to collect the debt is restricted to communications made in collecting consumer claims, the statute is not void for overbreadth. Id. In considering constitutionality of statute which limits commercial speech, court must weigh the individual's in terest against the government's interest. Id. Communication directed solely to the collection of a debt is purely commer-. cial; although that does not serve to strip it of all constitutional guarantees, such communications may be more readily curbed in the public interest than can speech which conveys political, social or religious thought. Id. 1. Construction and application This section prohibiting abusive tactics in collecting consumer claims did not apply where allegedly offending call emanated from Michigan and was made to Rhode Island. Ford Motor Credit Co. v. Sheehan, App., 373 So.2d 956 (1979). While seller could have required advance payment as condition to preparing glasses in accordance with buyer's prescription, its failure to do so did not convert transaction from "cash on delivery" to credit transaction and thus, since there was no extension of credit, seller's claim for payment after buyer refused to pay for glasses was not a "consumer claim" and penalties provided for in this section and § 559.71 appliplicable when person communicates or threatens to communicate with debtor's employer in collecting consumer claim did not apply. Carter Opticians, Inc. v. Lavis, App., 367 So.2d 227 (1979). Depending on the circumstances, use of the word "Debtor" may be actionable under this section providing that in collecting consumer claims no person shall mail any communication to a debtor in an envelope or post card carrying language calculated to embarrass debtor; |