Regulations to the Debt Collection Act of 13 May 1988 no. 26 (Debt Collection Regulations)

Transcription

1 FINANSTILSYNET The Financial Supervisory Authority of Norway Translation as of March 2017 This translation is for information purposes only. Legal authenticity remains with the official Norwegian version as published in Norsk Lovtidend. Regulations to the Debt Collection Act of 13 May 1988 no. 26 (Debt Collection Regulations) Into force: 14 July 1989 Last amended: 15 February 2013 Chapter 1 Creditor's right to compensation in the form of charges and fees Section 1-1 Introduction A creditor who pursuant to section 17 and section 18 of the Debt Collection Act is entitled to compensation from a debtor can claim compensation pursuant to section 1-2 to section 1-4 without regard to the actual costs incurred. A creditor who has incurred actual costs that are not covered by the compensation the creditor can claim pursuant to section 1-2 to section 1-4 can instead claim reimbursement of his actual costs insofar as he is entitled to do so under section 17 and section 18 of the Debt Collection Act and chapter 2 of the present Regulations. The basic for the year 2002 is NOK 520. The Ministry of Justice adjusts the fee annually 1 in accordance with the change in the consumer price index issued by Statistics Norway. The amount is rounded off to the nearest whole ten kroner. Pursuant to Regulations of 13 December 2002 no. 1641, the basic is NOK 530 from 1 January 2003, NOK 540 from 1 January 2005, NOK 550 from 1 January 2006, NOK 560 from 1 January 2007, NOK 570 from 1 January 2008, NOK 590 from 1 January 2009, NOK 600 from 1 January 2010, NOK 610 from 1 January 2011, NOK 620 from 1 January 2012, NOK 630 from 1 January 2013, NOK 640 from 1 January 2014, NOK 650 from 1 January (Lovdata's comment) Section 1-2 Compensation in the form of charges for reminder and collection notices For a written reminder to pay issued at the earliest 14 days after the outstanding amount falls due for payment, and that states the size and the substance of the claim, the creditor can claim an amount equal to one tenth of the basic. 1

2 For notice of debt collection action pursuant to section 9 of the Debt Collection Act issued 14 days at the earliest after the outstanding amount falls due for payment, the creditor can claim an amount equal to one tenth of the basic. For a demand for payment that satisfies the requirements of section 10 of the Debt Collection Act, and that the creditor himself has sent after the debtor has exceeded a deadline for payment of at least 14 days stipulated in a reminder to pay or debt collection notice, the creditor can claim an amount equal to three tenths of the basic. Payment is deemed to have been made within the deadline if a payment order has been delivered to a post office or bank prior to the expiry of the deadline. The amount shall be calculated on the basis of the basic applicable at the time the notice was sent. Section 1-3 More than one notice to pay For a single claim, the creditor may only claim compensation in the form of charges and fees for two reminders and one subsequent demand for payment, or for one reminder, a subsequent debt collection notice and a subsequent demand for payment. Compensation for two reminders or for both a reminder and a subsequent debt collection notice may only be claimed if the debtor has exceeded a payment deadline of at least 14 days stipulated in the first reminder. Section 1-2 third subsection second sentence applies. If more than six months have passed since the last notice was sent for which compensation is being claimed, the creditor may claim compensation for further notices in accordance with the provisions of this chapter insofar as he is entitled to do so under sections 17 and 18 of the Debt Collection Act and Chapter 2 of these Regulations. Section 1-4 Compensation in connection with collection of own claims using the services of a lawyer Where a lawyer who has provided surety pursuant to section 222 of the Act Relating to the Courts of Justice is professionally responsible for the collection of a debt, a creditor may, as compensation for the costs of recovering the debt himself, claim compensation in the form of charges as specified in the second subsection, provided that: (a) the creditor does not at the same time claim compensation for notices pursuant to section 1-2, see section 1-3, and (b) the debtor has exceeded the payment deadline stipulated in a demand for payment issued by the creditor himself, see third subsection, by more than 14 days. If the debtor has incurred a liability in the capacity of consumer, the compensation pursuant to the first subsection is: 2

3 for claims of up to NOK 2, times the basic for claims of up to NOK 10,000 1 times the basic for claims of up to NOK 50,000 2 times the basic for claims of up to NOK 250,000 4 times the basic for claims over NOK 250,000 8 times the basic In other cases, the compensation pursuant to the first subsection is one and a half times the fee in consumer relationships. Compensation may only be claimed if the demand for payment mentioned in the first subsection (b) satisfies the provisions of section 10 of the Debt Collection Act and was issued after the debtor exceeded a deadline for payment of at least 14 days stipulated in a reminder issued after the due date showing the amount and the substance of the claim, or in a debt collection notice pursuant to section 9 of the Debt Collection Act. Payment is deemed to have been made on the day a payment order is delivered to a bank or post office. In the second subsection, 'claim' means the principal amount with the addition of any interest accrued prior to the due date, but without the addition of interest accrued after the due date and any debt collection costs. If a new, later due date is agreed, the new due date shall be taken as a basis. The compensation amount shall be calculated on the basis of the basic applicable at the time the notice was sent. Section 1-5 Compensation pursuant to the Interest on Late Payments Act As regards the significance of compensation under section 3(a) of the Interest on Overdue payments Act for the debtor's compensation obligation pursuant to this chapter, see section 2-6. Chapter 2 Debtor's maximum liability for out-of-court debt collection costs Section 2-1 Introduction A creditor may never claim higher total compensation for costs incurred in engaging a debt collection agent and for other costs incurred in out-of-court debt collection than those ensuing from section 2-2 to section 2-6. The basic pursuant to the present Regulations is fixed annually by the Ministry of Justice pursuant to section 1-1, third subsection. The maximum fees in section 2-2 and section 2-3 apply where the debtor has incurred an obligation in the capacity of consumer. In other cases the maximum fees in section 2-2 and section 2-3 are one and a half times the fee in consumer relationships. 3

4 Section 2-2 Maximum fees for individual cases Maximum fees for the debtor's obligation to compensate the creditor for the creditor's out-of-court collection costs are: for claims of up to NOK 2, times the basic for claims of up to NOK 10,000 1 times the basic for claims of up to NOK 50,000 2 times the basic for claims of up to NOK 250,000 4 times the basic for claims over NOK 250,000 8 times the basic If the whole or more than half of a claim is not ascribable to activity that is liable to valueadded tax, an amount equivalent to the general VAT rate shall be added when calculating the maximum fees. 'Claim' means the principal amount with the addition of any interest accrued prior to the due date, but without the addition of interest accrued after the due date or any debt collection costs. If a new, later due date is agreed, the new due date shall be taken as a basis. However, account shall never be taken of interest that has accrued after the creditor has engaged a debt collection agent to collect the claim. When calculating the maximum fees, the basic applicable at the time the principal amount is paid shall be used. Maximum fees shall be calculated on the basis of the basic applicable at the time the principal amount is paid. Section 2-3 Maximum fees for major cases If the debtor has exceeded the payment deadline stipulated in a demand for payment, see the second subsection, by more than 28 days, the maximum fees payable by the debtor for the creditor's out-of-court debt collection costs for each individual claim are: for claims of up to NOK times the basic for claims of up to NOK times the basic for claims of up to NOK times the basic for claims of up to NOK times the basic 4

5 for claims over NOK times the basic If the whole or more than half of a claim is not attributable to activity that is liable to value-added tax, an amount equivalent to the general rate of VAT shall be added when calculating the maximum fees. Maximum fees pursuant to the first subsection are only applicable provided the demand for payment meets the requirements of section 10 of the Debt Collection Act and was issued after the debtor's exceedance of a deadline of at least 14 days set in a payment reminder that was issued after the due date and that specified the amount and substance of the claim, or set in a debt collection notice pursuant to section 9 of the Debt Collection Act. Payment is deemed to have been made on the day a payment order was delivered to a bank or post office. Section 2-2 second and third subsections apply. Section 2-4 Increase in maximum fees in certain cases The maximum fees stipulated in section 2-2 and 2-3 shall be increased by 1.5 times the basic where an instalment payment plan with more than four instalments is agreed. However, this does not apply if the creditor brings the case before an arbitration board, district court or enforcement authority, or if the instalment payment plan is agreed after one of these authorities has handled the case. The maximum fees pursuant to section 2-2 and 2-3 shall be increased by the fee imposed by the state for serving a winding up notice pursuant to section 63 of the Bankruptcy Act. Section 2-5 Compensation for actual costs If the creditor has incurred out-of-court debt collection costs that exceed the amount the creditor may claim pursuant to section 2-2 to section 2-4, the creditor may in special circumstances and to a reasonable extent claim reimbursement of his actual costs regardless of the restrictions under section 2-2 to section 2-4 insofar as he is entitled to do so under the Debt Collection Act section 17 and section 18. When evaluating whether compensation for actual costs may be claimed pursuant to the first subsection, due consideration shall be given to the necessity and size of the costs, and whether the debtor can be blamed for the costs accruing and for their being so high, and whether the approach adopted by the creditor has spared the debtor other costs. Grounds for compensation over and above those set out in section 2-2 to section 2-3 pursuant to this section must be provided to the debtor in writing. 5

6 Section 2-6 Act Deduction for compensation pursuant to the Interest on Overdue Payments If the creditor claims compensation from the debtor pursuant to section 3(a) of the Interest on Overdue Payments Act, the compensation shall be deducted from the debtor's liability to reimburse the creditor's out-of-court collection costs. If the creditor first claims compensation for out-of-court collection costs, this compensation shall be deducted from the compensation pursuant to section 3(a) of the Interest on Overdue Payments Act. Chapter 3 Debt collection agents' provision of surety Section 3-1 Introduction Debt collectors who provide debt collection services under a debt collection licence pursuant to section 5 of the Debt Collection Act shall, prior to commencing business activity and for as long as such activity continues, ensure that surety is provided in accordance with section 3-2 to section 3-5. Section 3-2 Type of surety Surety is provided through the deposition with Finanstilsynet of a declaration issued by a Norwegian non-life insurance company or other Norwegian entity as specified in section 1-4 first subsection nos. 1 to 3 of the Financial Institutions Act, or from a similar entity that has its head office in, or is licensed to operate in and is subject to the authority of, another state encompassed by the European Economic Area, (surety provider). In the declaration the surety provider shall undertake to guarantee the discharge of the debt collector's liability as mentioned in section 3-3 limited to a specified amount that meets the requirements of section 3-4, on terms and conditions as mentioned in section 3-5. In place of a specified amount, the declaration may state that the surety provider undertakes to accept liability up to the limit ensuing at any time from section 3-4, in the event capped at a specified amount. Finanstilsynet may refuse to accept the declaration if there is doubt as to whether it meets the requirements of the first subsection. Section 3-3 What the surety covers The surety covers the liability the debt collector assumes towards creditors and debtors in the provision of debt collection services in the period to which the surety applies. Section 3-4 Size of the surety At whatever point in time the total volume of claims held by a debt collector for collection is reported to Finanstilsynet pursuant to the provisions of the Financial Supervision 6

7 Act, the surety shall at least equal 1/40 of the total volume of claims and at least twice the amount of collected but not yet disbursed monies and other monies that are the property of clients (client monies). However, surety shall always at least equal NOK 2,500,000. Finanstilsynet may in certain cases decide that a higher amount of security shall be provided than that required pursuant to the first and second sentences. If the surety at any time of reporting is not at least equal to 1/40 of the total volume of claims held by the debt collector for collection, and at least equal to twice the sum of client monies held, the surety must be brought into compliance with the requirements of the first subsection within two months of the reporting date. In certain cases, Finanstilsynet may set a shorter deadline. The second subsection applies equally where disbursements from the surety provider cause the surety to no longer meet the requirements of the first subsection. Section 3-5 Other requirements relating to surety Creditors and debtors who are injured parties may claim compensation directly from the surety provider without first lodging a claim against the debt collector. The surety provider may not invoke objections against claims from injured parties beyond the objections the debt collector himself has in relation to the said injured parties. Cancellation of surety or lapse of surety in other ways does not affect the rights of injured parties until two months after Finanstilsynet has received notification of such cancellation or lapse. The surety provider may not claim that disbursements have been made under the surety to an injured party unless Finanstilsynet has been informed of such payment at the latest at the same time as any such disbursement was made. If the surety provider invokes the size of the surety in relation to more than one injured party, the highest surety amount shall apply to each and every injured party. Chapter 4 Handling of client monies and interest on client monies Section 4-1 Debt collector's handling of client monies A debt collector who provides debt collection services pursuant to a debt collection licence shall keep recovered monies and other monies that are the property of clients (client monies) separate from his own monies and other monies that are not client monies. Client monies that are not disbursed immediately shall be deposited in a client bank account or client postal giro account. 7

8 A client account may only be opened with a bank that has undertaken in writing not to set off in the account any claims the bank might have against the debt collector. The same applies to a postal giro account for client monies. A joint account for client monies shall be opened in the debt collector's name and shall be designated the "client account". If a separate account is opened for an individual client, the account designation shall also include the name of the client concerned. A client account may only be operated by the debt collection licence holder or holders that are professionally responsible for the management of the debt collection activities, or under written power of attorney from a licence holder. A power of attorney becomes void when the licence holder ceases to be professionally responsible for the management of the debt collection activities. If no one is eligible to manage the account, the undertaking may, upon receiving permission from Finanstilsynet, grant one or more persons power of attorney to operate the account. Withdrawals from a client account may only be made in respect of amounts to be paid to a client or on a client's behalf, in respect of the debt collector's claim for fees payable by the client where set-off is possible, or in respect of amounts that have been mistakenly deposited in the client account. Amounts withdrawn from a client account for payment to a client or on the client's behalf shall not exceed the balance present in the account of the client concerned. This section cannot be deviated from by agreement between the client and the debt collector. Section 4-2 Interest on client monies Unless otherwise agreed, interest earned on a client account operated by a debt collector who provides debt collection services pursuant to a debt collection licence shall accrue to the client. The debt collector is nonetheless not obliged to disburse interest that does not exceed the court fee for the individual client in the same case; see section 1 of the Act on Court Fees. This section may be deviated from by agreement between the client and the debt collector. Section 4-3 Debt collection pursuant to a licence to practise law The handling of client monies and interest on client monies in connection with debt collection services provided pursuant to a licence to practise law is governed by Regulations of 18 December 1992 no on lawyers' handling of entrusted monies and on the supervision of lawyers' practices etc., section 5 to section 9. 8

9 Chapter 5 Processing of applications for a debt collection licence Section 5-1 Licence fee A processing charge equal to four times the court fee is payable for the granting of a debt collection licence pursuant to section 5 of the Debt Collection Act; see section 1 of the Act on Court Fees. Section 5-2 Time limit for processing applications The time limit for processing of applications for a debt collection licence pursuant to section 5 of the Debt Collection Act is three months; see section 11, first subsection of the Act on Services. Section 11, second subsection, of the Act on Services to the effect that a licence is regarded as granted once the application processing time limit has expired does not apply to applications for a debt collection licence. Chapter 6 Provision of debt collection services on a temporary basis Section 6-1 Exemption from the requirement for business entity registration and for possession of a debt collection licence in order to provide debt collection services in Norway on a temporary basis The requirements regarding business entity registration and regarding possession of a debt collection licence pursuant to section 4 first subsection of the Debt Collection Act do not apply to a debt collector who on a temporary and occasional basis collects overdue pecuniary claims for others provided that (a) the debt collector is a citizen of an EEA member state, (b) the debt collector is legally established in another EEA member state with a view to providing debt collection services in that state, and (c) debt collection or the education and training that lead to that profession are regulated by law in the state in which the business is established, or the debt collector has provided debt collection services in the state in which the business is established for at least two years in the course of the last ten years. In determining whether debt collection services are being provided on a temporary and occasional basis under the first subsection, particular account must be taken of the duration, frequency, regularity and continuity of the business. This section implies no restrictions in other respects on the obligations of the debt collector pursuant to the Debt Collection Act or the present Regulations. 9

10 Section 6-2 Notification of debt collection services to be provided on a temporary basis A debt collector who intends to provide debt collection services in Norway on a temporary basis pursuant to section 6-1 shall give advance notification thereof to Finanstilsynet. The notification shall provide information on relevant insurance cover or other types of personal or group protection against liability ensuing from the business, including any guarantees. The notification must be renewed annually if the debt collector plans to provide debt collection services the following year as well. The first time that notification is given under the first subsection, the following documents shall be enclosed with the notification: (a) proof of the debt collector's nationality, (b) a document verifying that the debt collector is legally established in an EEA member state with a view to providing debt collection services in that state, and that the debt collector has not been deprived of the right to provide such services at the time of submitting the document, (c) proof of professional qualifications, (d) a document verifying that the debt collector has provided debt collection services for at least two years in the course of the last ten years insofar as this is relevant for the purposes of section 6-1 first subsection (c). Documents as mentioned in the second subsection shall also be sent to Finanstilsynet in the event of a significant change in the particulars to which the documents refer. Section 6-3 Professional designation when providing debt collection services on a temporary basis A debt collector who provides debt collection services in Norway on a temporary basis pursuant to section 6-1 shall use the professional designation of the EEA member state in which the debt collector is established. This designation shall be stated in the official language(s) of the state of establishment in such a way as to avoid confusion with the professional designation in Norwegian. If there is no professional designation in the state of establishment, the debt collector shall state his formal qualifications in the official language(s) of the state of establishment. Section 6-4 Obligation to inform the debtor and the creditor A debt collector who provides debt collection services in Norway on a temporary basis pursuant to section 6-1 shall inform the debtor and the creditor of the following: (a) register of business enterprises or equivalent register if the debt collector is registered in such a register, and the debt collector's registration number or an equivalent means of identifying information in this register, (b) if debt collection is subject to authorisation in the state of establishment, the name and 10

11 address of the relevant supervisory authority, (c) the debt collector's professional title, or if no such title exists, the debt collector's proof of formal qualifications, and the state in which they were awarded, (d) details of relevant insurance cover or other types of personal or collective protection against liability ensuing from the activity, including any guarantees. Section 6-5 collectors Finanstilsynet's obligation to disclose information about Norwegian debt Finanstilsynet shall, when requested by the competent authority in an EEA state to provide information about a debt collector who is established in Norway and who provides debt collection services in the EEA state concerned, provide relevant information about that debt collector's professional practice and confirmation that the debt collector is lawfully established in Norway. Finanstilsynet shall also provide relevant information on any professional disciplinary or penal sanctions that have been impose on the debt collector. Finanstilsynet shall ensure exchange of all information that is necessary to enable complaints from a debt collection service recipient to be followed up appropriately. The service recipient shall be informed of the results of the complaint. Chapter 7 Approval of proof of qualifications from non-eea countries for debt collectors who establish themselves in Norway Section 7-1 Approval of proof of qualifications from non-eea countries for debt collectors who establish themselves in Norway Exemption pursuant to section 5 second subsection third sentence of the Debt Collection Act from the requirement of three years' practical experience of collecting pecuniary claims for EEA citizens who have proof of qualifications from another EEA state also applies to applicants who have proof of qualifications from non-eea states if (a) an EEA state has approved the proof of qualifications as a basis for allowing the debt collector to provide debt collection services in that state, (b) the possessor of the proof of qualifications has three years' experience of collecting pecuniary claims in the EEA state that has approved the proof of qualifications, (c) such experience is confirmed by the EEA state that has approved the proof of qualifications. Chapter 8 Entry into force Section 8-1 Entry into force These Regulations enter into force on 1 October

12 End notes: 1. The new section 1-4 of the Debt Collection Regulations applies only to the collection of claims that fall due for payment after 1 January In the case of debt collectors who provide debt collection services pursuant to a debt collection licence, the surety provider must deposit prior to 1 January 1994 a declaration with Finanstilsynet which expressly states that from 1 January 1994 the surety covers the liability that it is required to cover pursuant to the amendments to the Debt Collection Act set out in Act of 11 June 1993 no. 83 on amendments to the legislation governing legal proceedings etc. and to the Debt Collection Regulations as set out in the present Regulations. 12