State Law Compliance for Credit Counseling Agencies: Getting and Staying Compliant
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1 State Law Compliance for Credit Counseling Agencies: Getting and Staying Compliant AICCCA 13 th Annual Conference July 14, 2006, 11:00 am 11:45 am Hotel Washington, Washington, D.C. Jeffrey S. Tenenbaum, Esq., Partner Jonathan L. Pompan, Esq., Attorney Venable LLP, Washington, D.C.
2 Introduction The Laws that Apply to Credit Counseling Agencies Historical Perspective Debt Adjusting Statutes Uniform Debt-Management Services Act Recently Enacted/Amended State Debt Adjusting Statutes Nine of the Most Important Things a CCA Needs to Know about State Debt Adjusting Statutory Requirements Questions and Discussion
3 The Laws that Apply to Credit Counseling Agencies State Debt Adjusting Statutes Credit Services Organization Acts Check Seller/Bill Payer Laws Home Sales Solicitation Statutes FTC Act and State Unfair and Deceptive Acts/Practices Laws Nonprofit Corporate Statutes State Charitable Solicitation Statutes Internal Revenue Code and State Tax Codes Others
4 Historical Perspective 1950s About half of the states prohibited debt adjusting (e.g., prorating, debt pooling, debt management, etc.); approximately one third of the states regulated debt adjusting (imposing a variety of requirements); many state laws exempted tax-exempt 501(c)(3)s. Today Nearly all of the states regulate debt adjusting; few exempt tax-exempt 501(c)(3)s; only two states prohibit debt adjusting for compensation; only 2 states and DC do not regulate debt adjusting. Additionally, there are a number of other state laws CCAs must navigate (e.g., qualification to do business as foreign corporation, mini-ftc Acts, mini- Credit Repair Organization Acts, check seller/bill payer laws, and state charitable solicitation statutes).
5 Comprehensive Federal and State Efforts to Regulate Credit Counseling Agencies FTC and State Enforcement to Address Abuses of the late 90s and early 00s Ongoing IRS Credit Counseling Compliance Project Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (enforced primarily by EOUST) NCCUSL - Uniform Debt-Management Services Act
6 Result of Importance and Growth of Credit Counseling Industry and Consumer Debt States States Debt Debt Adjusting Laws Laws Virtually all all of of these these laws laws apply apply based based on on the the state state of of residence of of the the client. client.
7 Debt Adjusting Statutes Exemptions 48 States and Exclusions A CCA CCA that that services services clients clients nationally nationally in in the the U.S. U.S. must must typically typically register register and/or and/or obtain obtain licensure licensure in in different different states states before before it it starts starts to to provide provide DMP DMP services services to to clients clients in in these these states. states. Vary Vary from from state state to to state. state.
8 ypical State Debt Adjusting Registration equirements For Example: Annual Registration, Reporting and Financial Statements Information about Affiliates Surety Bond or Insurance Requirements Registration Fee Texas Debt Management Services Act Information about Accreditation and Tax-Exempt Status and much more
9 Violations of State Debt Adjusting Statutes Common failures to adhere to specific statutory requirements include: 1. Licensure/Registration, if applicable 2. Fee Caps 3. Disclosures to consumers 4. Deposit/Disbursement time 5. Prohibited acts and practices (e.g., other business, compensated referrals, etc.) Using unfair or deceptive acts or practices or engaging in fraudulent conduct that creates a likelihood of confusion or misunderstanding.
10 State Debt Adjusting Statutes Fines and Penalties Example - Texas The law authorizes the imposition of restitution and penalties of up to $1,000 per violation. In addition, the law authorizes private remedies against CCAs not registered under the Act (e.g., actual and punitive damages and attorneys fees).
11 Uniform Debt-Management Services Act Regulates debt-management companies by requiring them to register with the state. To obtain a certificate of registration, a provider must supply information about itself, obtain insurance against employee dishonesty, and post a surety bond to safeguard any money that it receives from individuals for payment to creditors.
12 Uniform Debt-Management Services Act Regulates interaction with consumers, including steps to be taken before entering into an agreement with an individual, the content of an agreement (including limitations on the fees that may be charged), and provisions concerning the performance and termination of agreements. Includes broad prohibitions applicable to CCAs. Enforcement both by a state agency and by private individuals, including rule-making authority on the part of the administrator and recovery of minimum, actual and, in appropriate cases, punitive damages in private enforcement actions (e.g., class actions).
13 Uniform Debt-Management Services Act Effective July 1, 2007 in Utah (amends provisions of UT CSOA); Effective March 31, 2007 in Rhode Island In 2006, introduced and progressing through the legislative process in Delaware, Colorado, Illinois, Missouri, and Nebraska. Study Committee in Wisconsin Roadmap for other states to either adopt/amend and/or interpret existing debt adjusting statute
14 Recently Enacted/Amended State Debt Adjusting Statutes Florida Iowa Mississippi Montana North Carolina Oregon South Carolina Texas Utah Others
15 Nine of the Most Important Things a CCA Needs to Know about State Debt Adjusting Statutory Requirements Unless excluded or or exempt, a CCA needs to to comply with with the the law law of of the the state of of residence of of its its clients Once licensed/registered, a CCA needs to to renew its its registration annually and and make any any of of the the required ongoing filings and and notifications to to the the state CCAs should not not ignore correspondence and/or Subpoenas from state regulatory agencies or or AG AG offices.
16 Nine of the Most Important Things a CCA Needs to Know about State Debt Adjusting Statutory Requirements (cont d) CCAs should have a written client agreement with with all all prescribed disclosures, as as well well as as fees fees that that are are set set in in accordance with with applicable state fee fee restrictions A CCA must keep true true and and accurate financial records that that clearly and and accurately reflect all all the the money it it collected and andhow and and when the the money has has been disbursed Registration/license materials must be be accurate, complete and and free free of of material falsifications, misrepresentations and and omissions.
17 Nine of the Most Important Things a CCA Needs to Know about State Debt Adjusting Statutory Requirements (cont d) A CCA must include any any statutorily required disclosure statements (including on on all all solicitations, contracts, marketing materials, and and invoices/payment notices it it issues) A CCA must ensure that that its its counselors are are trained and and certified as as statutorily required and andthat they they give give truthful and and complete answers about the the effect of of enrolling in in a DMP on on a consumer s credit report and and score A CCA and and its its directors, officers and and employees should not not engage in in any any prohibited conduct detailed in in the the various state debt adjusting statutes.
18 Questions and Discussion Jeffrey S. Tenenbaum Jonathan L. Pompan Venable LLP th St., N.W. Washington, D.C (202)
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