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An Act To Enact the Uniform Debt Management Services Act
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 17 MRSA §701, sub-§2, ¶D,  as enacted by PL 1999, c. 560, §1, is amended to read:
 
D.  Any organization that is registered with the State as a debt management service provider under Title 32, chapter 80-A82.
Sec. 2. 32 MRSA c. 80-A,  as amended, is repealed.
Sec. 3. 32 MRSA c. 82  is enacted to read:
CHAPTER 82
UNIFORM DEBT MANAGEMENT SERVICES ACT
§ 6301.  Short title
This chapter may be cited as the Uniform Debt Management Services Act.
§ 6302.  Definitions
As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings.
 
1.  Administrator.     "Administrator" means the Director of the Office of Consumer Credit Regulation within the Department of Professional and Financial Regulation.
 
2.  Affiliate.     "Affiliate" means:
 
A.  With respect to an individual:
 
(1) The spouse of the individual;
 
(2) A sibling of the individual or the spouse of a sibling;
 
(3) An individual or the spouse of an individual who is a lineal ancestor or lineal descendant of the individual or the individual's spouse;
 
(4) An aunt, uncle, great aunt, great uncle, first cousin, niece, nephew, grandniece or grandnephew, whether related by the whole or the half blood or adoption, or the spouse of any of them; or
 
(5) Any other individual occupying the residence of the individual; and
 
B.  With respect to an entity:
 
(1) A person that directly or indirectly controls, is controlled by or is under common control with the entity;
 
(2) An officer of, or an individual performing similar functions with respect to, the entity;
 
(3) A director of, or an individual performing similar functions with respect to, the entity;
 
(4) A person that receives or received more than $25,000 from the entity in either the current year or the preceding year or a person that owns more than 10% of, or an individual who is employed by or is a director of, a person that receives or received more than $25,000 from the entity in either the current year or the preceding year;
 
(5) An officer or director of, or an individual performing similar functions with respect to, a person described in subparagraph (1);
 
(6) The spouse of, or an individual occupying the residence of, an individual described in subparagraphs 1 to 5; or
 
(7) An individual who has a relationship specified in paragraph A, subparagraph (4) to an individual or the spouse of an individual described in subparagraphs 1 to 5.
 
3.  Agreement.     "Agreement" means an agreement between a provider and an individual for the performance of debt management services.
 
4.  Bank.     "Bank" means a financial institution, including a commercial bank, savings bank, savings and loan association, credit union and trust company, engaged in the business of banking, chartered under federal or state law and regulated by a federal or state banking regulatory authority.
 
5.  Business address.     "Business address" means the physical location of a business, including the name and number of a street.
 
6.  Certified counselor.     "Certified counselor" means an individual certified by a training program or certifying organization, approved by the administrator, that authenticates the competence of individuals providing education and assistance to other individuals in connection with debt management services in which an agreement contemplates that creditors will reduce finance charges or fees for late payment, default or delinquency.
 
7.  Certified debt specialist.     "Certified debt specialist" means an individual certified by a training program or certifying organization, approved by the administrator, that authenticates the competence of individuals providing education and assistance to other individuals in connection with debt management services in which an agreement contemplates that creditors will settle debts for less than the full principal amount of debt owed.
 
8.  Concession.     "Concession" means assent to repayment of a debt on terms more favorable to an individual than the terms of the contract between the individual and a creditor.
 
9.  Day.     "Day" means a calendar day.
 
10.  Debt management services.     "Debt management services" means services as an intermediary between an individual and one or more creditors of the individual for the purpose of obtaining concessions, but does not include:
 
A.  Legal services provided in an attorney-client relationship by an attorney licensed or otherwise authorized to practice law in this State;
 
B.  Accounting services provided in an accountant-client relationship by a certified public accountant licensed to provide accounting services in this State; or
 
C.  Financial planning services provided in a financial planner-client relationship by a member of a financial planning profession whose members the administrator, by rule, determines are:
 
(1) Licensed by the State;
 
(2) Subject to a disciplinary mechanism;
 
(3) Subject to a code of professional responsibility; and
 
(4) Subject to a continuing education requirement.
 
11.  Entity.     "Entity" means a person other than an individual.
 
12.  Good faith.     "Good faith" means honesty in fact and the observance of reasonable standards of fair dealing.
 
13.  Person.     "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture or any other legal or commercial entity. The term does not include a public corporation, government or governmental subdivision, agency or instrumentality.
 
14.  Plan.     "Plan" means a program or strategy in which a provider furnishes debt management services to an individual and that includes a schedule of payments to be made by or on behalf of the individual and used to pay debts owed by the individual.
 
15.  Principal amount of the debt.     "Principal amount of the debt" means the amount of a debt at the time of an agreement.
 
16.  Provider.     "Provider" means a person that provides, offers to provide or agrees to provide debt management services directly or through others.
 
17.  Record.     "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
 
18.  Settlement fee.     "Settlement fee" means a charge imposed on or paid by an individual in connection with a creditor's assent to accept in full satisfaction of a debt an amount less than the principal amount of the debt.
 
19.  Sign.     "Sign" means, with present intent to authenticate or adopt a record:
 
A.  To execute or adopt a tangible symbol; or
 
B.  To attach to or logically associate with the record an electronic sound, symbol or process.
 
20.  State.     "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States.
 
21.  Trust account.     "Trust account" means an account held by a provider that is:
 
A.  Established in an insured bank;
 
B.  Separate from other accounts of the provider or its designee;
 
C.  Designated as a trust account or other account designated to indicate that the money in the account is not the money of the provider or its designee; and
 
D.  Used to hold money of one or more individuals for disbursement to creditors of the individuals.
§ 6303.  Exempt agreements and persons
 
1.  Application.     This chapter does not apply to:
 
A.  An agreement with an individual who the provider has no reason to know resides in this State at the time of the agreement;
 
B.  A provider to the extent that the provider:
 
(1) Provides or agrees to provide debt management, educational or counseling services to an individual who the provider has no reason to know resides in this State at the time the provider agrees to provide the services; or
 
(2) Receives no compensation for debt management services from or on behalf of the individuals to whom it provides the services or from their creditors; and
 
C.  The following persons or their employees when the person or the employee is engaged in the regular course of the person's business or profession:
 
(1) A judicial officer, a person acting under an order of a court or an administrative agency or an assignee for the benefit of creditors;
 
(2) A bank;
 
(3) An affiliate of a bank if the affiliate is regulated by a federal or state banking regulatory authority; and
 
(4) A title insurer, escrow company or other person that provides bill-paying services if the provision of debt management services is incidental to the bill-paying services.
§ 6304.  Registration required
 
1.  Requirement.     Except as otherwise provided in subsection 2, a provider may not provide debt management services to an individual who it reasonably should know resides in this State at the time it agrees to provide the services, unless the provider is registered under this chapter.
 
2.  Employee or agent.     If a provider is registered under this chapter, subsection 1 does not apply to an employee or agent of the provider.
 
3.  List of registered providers.     The administrator shall maintain and publicize a list of the names of all registered providers.
§ 6305.  Application for registration; form, fee and accompanying documents
 
1.  Form.     An application for registration as a provider must be in a form prescribed by the administrator.
 
2.  Fee; accompanying documents.     Subject to adjustment of dollar amounts pursuant to section 6332, subsection 6, an application for registration as a provider must be accompanied by:
 
A.  The fee established by the administrator;
 
B.  The bond required by section 6313;
 
C.  Identification of all trust accounts required by section 6322 and an irrevocable consent authorizing the administrator to review and examine the trust accounts;
 
D.  Evidence of insurance in the amount of $250,000:
 
(1) Against the risks of dishonesty, fraud, theft and other misconduct on the part of the applicant or a director, employee or agent of the applicant;
 
(2) Issued by an insurance company authorized to do business in this State and rated at least A or equivalent by a nationally recognized rating organization approved by the administrator;
 
(3) With a deductible not exceeding $5,000;
 
(4) Payable for the benefit of the applicant, this State and individuals who are residents of this State, as their interests may appear; and
 
(5) Not subject to cancellation by the applicant or the insurer until 60 days after written notice has been given to the administrator;
 
E.  Proof of compliance with any relevant requirements regarding business entities, including but not limited to requirements set forth in Title 13-B and Title 13-C; and
 
F.  If the applicant is organized as a not-for-profit entity or is exempt from taxation under 26 United States Code, Section 501, evidence of nonprofit status or tax-exempt status, or both, as applicable.
§ 6306.  Application for registration required
 
1.  Required information.     An application for registration must be signed under oath and include:
 
A.  The applicant's name, principal business address and telephone number, all other business addresses in this State, e-mail addresses and Internet addresses;
 
B.  All names under which the applicant conducts business;
 
C.  The address of each location in this State at which the applicant will provide debt management services or a statement that the applicant will have no such location;
 
D.  The name and home address of each officer and director of the applicant and each person that owns at least 10% of the applicant;
 
E.  Identification of every jurisdiction in which, during the 5 years immediately preceding the application:
 
(1) The applicant or any of its officers or directors has been licensed or registered to provide debt management services; or
 
(2) Individuals have resided when they received debt management services from the applicant;
 
F.  A statement describing, to the extent it is known or should be known by the applicant, any material civil or criminal judgment or litigation and any material administrative or enforcement action by a governmental agency in any jurisdiction against the applicant, any of its officers, directors, owners or agents or any person who is authorized to have access to the trust account required by section 6322;
 
G.  The applicant's financial statements, audited by an accountant licensed to conduct audits, for each of the 2 years immediately preceding the application or, if it has not been in operation for the 2 years preceding the application, for the period of its existence;
 
H.  Evidence of accreditation by an independent accrediting organization approved by the administrator;
 
I.  Evidence that, within 12 months after initial employment, each of the applicant's counselors becomes certified as a certified counselor or certified debt specialist;
 
J.  A description of the 3 most commonly used educational programs that the applicant provides or intends to provide to individuals who reside in this State and a copy of any materials used or to be used in those programs;
 
K.  A description of the applicant's financial analysis and initial budget plan, including any form or electronic model, used to evaluate the financial condition of individuals;
 
L.  A copy of each form of agreement that the applicant will use with individuals who reside in this State;
 
M.  The schedule of fees and charges that the applicant will use with individuals who reside in this State;
 
N.  At the applicant's expense, the results of a criminal records check, including fingerprints, conducted within the immediately preceding 12 months, covering every officer of the applicant and every employee or agent of the applicant who is authorized to have access to the trust account required by section 6322;
 
O.  The names and addresses of all employers of each director during the 10 years immediately preceding the application;
 
P.  A description of any ownership interest of at least 10% by a director, owner or employee of the applicant in:
 
(1) Any affiliate of the applicant; or
 
(2) Any entity that provides products or services to the applicant or any individual relating to the applicant's debt management services;
 
Q.  A statement of the amount of compensation of the applicant's 5 most highly compensated employees for each of the 3 years immediately preceding the application or, if it has not been in operation for the 3 years preceding the application, for the period of its existence;
 
R.  The identity of each director who is an affiliate, as defined in section 6302, subsection 2, paragraph A or section 6302, subsection 2, paragraph B, subparagraph (1), (2), (4), (5), (6) or (7), of the applicant; and
 
S.  Any other information that the administrator reasonably requires to perform the administrator's duties under section 6309.
§ 6307.  Application for registration; obligation to update information
An applicant or registered provider shall notify the administrator within 10 days after a change in the information specified in section 6305, subsection 2, paragraph D or F or section 6306, subsection 1, paragraph A, C, F, L or M.
§ 6308.  Application for registration; public information
Except for the information required by section 6306, subsection 1, paragraphs G, N and Q and the addresses required by section 6306, subsection 1, paragraph D, the administrator shall make the information in an application for registration as a provider available to the public.
§ 6309.  Certificate of registration; issuance or denial
 
1.  Issuance.     Except as otherwise provided in subsections 3 and 4, the administrator shall issue a certificate of registration as a provider to a person that complies with sections 6305 and 6306.
 
2.  Temporary certificate.     If an applicant has otherwise complied with sections 6305 and 6306, including a timely effort to obtain the information required by section 6306, subsection 1, paragraph N but the information has not been received, the administrator may issue a temporary certificate of registration. The temporary certificate expires no later than 180 days after issuance.
 
3.  Denial.     The administrator may deny registration if:
 
A.  The application contains information that is materially erroneous or incomplete;
 
B.  An officer, director or owner of the applicant has been convicted of a crime, or suffered a civil judgment, involving dishonesty or the violation of state or federal securities laws;
 
C.  The applicant or any of its officers, directors or owners has defaulted in the payment of money collected for others; or
 
D.  The administrator finds that the financial responsibility, experience, character or general fitness of the applicant or its owners, directors, employees or agents does not warrant belief that the business will be operated in compliance with this chapter.
 
4.  Denial based on absence of independence of board.     The administrator shall deny registration if, with respect to an applicant that is organized as a not-for-profit entity or has obtained tax-exempt status under 26 United States Code, Section 501, the applicant's board of directors is not independent of the applicant's employees and agents.
 
5.  Board not considered independent.     Subject to adjustment of the dollar amount pursuant to section 6332, subsection 6, a board of directors is not independent for purposes of subsection 4 if more than 1/4 of its members:
 
A.  Are affiliates of the applicant, as defined in section 6302, subsection 2, paragraph A or section 6302, subsection 2, paragraph B, subparagraph (1), (2), (4), (5), (6) or (7); or
 
B.  After the date 10 years before first becoming a director of the applicant, were employed by or directors of a person that received from the applicant more than $25,000 in either the current year or the preceding year.
§ 6310.  Certificate of registration; timing
 
1.  Timing.     The administrator shall approve or deny an initial registration as a provider within 120 days after an application is filed. In connection with a request pursuant to section 6306, subsection 1, paragraph S for additional information, the administrator may extend the 120-day period for not more than 60 days. Within 7 days after denying an application, the administrator, in a record, shall inform the applicant of the reasons for the denial.
 
2.  Appeal.     If the administrator denies an application for registration as a provider or does not act on an application within the time prescribed in subsection 1, the applicant may appeal and request a hearing.
 
3.  Duration.     Subject to section 6311, subsection 4 and section 6334, a registration as a provider is valid for one year.
§ 6311.  Renewal of registration
 
1.  Renewal.     A provider must obtain a renewal of its registration annually.
 
2.  Form.     An application for renewal of registration as a provider must be in a form prescribed by the administrator, signed under oath and:
 
A.  Be filed no fewer than 30 and no more than 60 days before the registration expires;
 
B.  Be accompanied by the fee established by the administrator and the bond required by section 6313;
 
C.  Contain the matter required for initial registration as a provider by section 6306, subsection 1, paragraphs H and I and a financial statement, audited by an accountant licensed to conduct audits, for the applicant's fiscal year immediately preceding the application;
 
D.  Disclose any changes in the information contained in the applicant's application for registration or its immediately previous application for renewal, as applicable. If an application is otherwise complete and the applicant has made a timely effort to obtain the information required by section 6306, subsection 1, paragraph N but the information has not been received, the administrator may issue a temporary renewal of registration. The temporary renewal expires no later than 180 days after issuance;
 
E.  Supply evidence of insurance in an amount equal to the larger of $250,000 or the highest daily balance in the trust account required by section 6322 during the 6-month period immediately preceding the application:
 
(1) Against risks of dishonesty, fraud, theft and other misconduct on the part of the applicant or a director, employee or agent of the applicant;
 
(2) Issued by an insurance company authorized to do business in this State and rated at least A or equivalent by a nationally recognized rating organization approved by the administrator;
 
(3) With a deductible not exceeding $5,000;
 
(4) Payable for the benefit of the applicant, this State and individuals who are residents of this State, as their interests may appear; and
 
(5) Not subject to cancellation by the applicant or the insurer until 60 days after written notice has been given to the administrator;
 
F.  Disclose the total amount of money received by the applicant pursuant to plans during the preceding 12 months from or on behalf of individuals who reside in this State and the total amount of money distributed to creditors of those individuals during that period;
 
G.  Disclose, to the best of the applicant's knowledge, the gross amount of money accumulated during the preceding 12 months pursuant to plans by or on behalf of individuals who reside in this State and with whom the applicant has agreements; and
 
H.  Provide any other information that the administrator reasonably requires to perform the administrator's duties under this section.
 
3.  Information.     Except for the information required by section 6306, subsection 1, paragraphs G, N and Q and the addresses required by section 6306, subsection 1, paragraph D, the administrator shall make the information in an application for renewal of registration as a provider available to the public.
 
4.  Effective until denial.     If a registered provider files a timely and complete application for renewal of registration, the registration remains effective until the administrator, in a record, notifies the applicant of a denial and states the reasons for the denial.
 
5.  Appeal.     If the administrator denies an application for renewal of registration as a provider, the applicant, within 30 days after receiving notice of the denial, may appeal and request a hearing. Subject to section 6334, while the appeal is pending the applicant shall continue to provide debt management services to individuals with whom it has agreements. If the denial is affirmed, subject to the administrator's order and section 6334, the applicant shall continue to provide debt management services to individuals with whom it has agreements until, with the approval of the administrator, it transfers the agreements to another registered provider or returns to the individuals all unexpended money that is under the applicant's control.
§ 6312.  Registration in another state
If a provider holds a license or certificate of registration in another state authorizing it to provide debt management services, the provider may submit a copy of that license or certificate and the application for it instead of an application in the form prescribed by section 6305, subsection 1, section 6306 or section 6311, subsection 2. The administrator shall accept the application and the license or certificate from the other state as an application for registration as a provider or for renewal of registration as a provider, as appropriate, in this State if:
 
1.  Substantially similar.     The application in the other state contains information substantially similar to or more comprehensive than that required in an application submitted in this State;
 
2.  Provision of information.     The applicant provides the information required by section 6306, subsection 2, paragraphs A, C, J, L and M; and
 
3.  Certify information.     The applicant, under oath, certifies that the information contained in the application is current or, to the extent it is not current, supplements the application to make the information current.
§ 6313.  Bond required
 
1.  Filing by provider.     Except as otherwise provided in section 6314, a provider that is required to be registered under this chapter shall file a surety bond with the administrator, which must:
 
A.  Be in effect during the period of registration and for 2 years after the provider ceases providing debt management services to individuals in this State; and
 
B.  Run to this State for the benefit of this State and of individuals who reside in this State when they agree to receive debt management services from the provider, as their interests may appear.
 
2.  Bond requirements.     Subject to adjustment of the dollar amount pursuant to section 6332, subsection 6, a surety bond filed pursuant to subsection 1 must:
 
A.  Be in the amount of $50,000 or other larger or smaller amount that the administrator determines is warranted by the financial condition and business experience of the provider, the history of the provider in performing debt management services, the risk to individuals and any other factor the administrator considers appropriate;
 
B.  Be issued by a bonding, surety or insurance company authorized to do business in this State and rated at least A or equivalent by a nationally recognized rating organization; and
 
C.  Have payment conditioned upon noncompliance of the provider or its agent with this chapter.
 
3.  Reduction of principal amount.     If the principal amount of a surety bond is reduced by payment of a claim or a judgment, the provider shall immediately notify the administrator and, within 30 days after notice by the administrator, file a new or additional surety bond in an amount set by the administrator. The amount of the new or additional bond must be at least the amount of the bond immediately before payment of the claim or judgment. If for any reason a surety terminates a bond, the provider shall immediately file a new surety bond in the amount of $50,000 or other amount determined pursuant to subsection 2.
 
4.  Satisfaction.     The administrator or an individual may obtain satisfaction out of the surety bond procured pursuant to this section if:
 
A.  The administrator assesses expenses under section 6332, subsection 2, paragraph A, issues a final order under section 6333, subsection 1, paragraph B or recovers a final judgment under section 6333, subsection 1, paragraph D or E or section 6333, subsection 4; or
 
B.  An individual recovers a final judgment pursuant to section 6335, subsection 1 or 2, or section 6335, subsection 3, paragraph A, B or D.
 
5.  Distribute proceeds.     If claims against a surety bond exceed or are reasonably expected to exceed the amount of the bond, the administrator, on the initiative of the administrator or on petition of the surety, shall, unless the proceeds are adequate to pay all costs, judgments and claims, distribute the proceeds in the following order:
 
A.  To satisfaction of a final order or judgment under section 6333, subsection 1, paragraph B, D or E or section 6333, subsection 4;
 
B.  To final judgments recovered by individuals pursuant to section 6335, subsection 1 or 2 or section 6335, subsection 3, paragraph A, B or D, pro rata;
 
C.  To claims of individuals established to the satisfaction of the administrator, pro rata; and
 
D.  If a final order or judgment is issued under section 6333, subsection 1, to the expenses charged pursuant to section 6332, subsection 2, paragraph A.
§ 6314.  Bond required; substitute
 
1.  Substitute.     Instead of the surety bond required by section 6313, a provider may deliver to the administrator, in the amount required by section 6313, subsection 2, and, except as otherwise provided in paragraph B, subparagraph (1), payable or available to this State and to individuals who reside in this State when they agree to receive debt management services from the provider, as their interests may appear, if the provider or its agent does not comply with this chapter:
 
A.  A certificate of insurance:
 
(1) Issued by an insurance company authorized to do business in this State and rated at least A or equivalent by a nationally recognized rating organization approved by the administrator; and
 
(2) With no deductible, or if the provider supplies a bond in the amount of $5,000, a deductible not exceeding $5,000; or
 
B.  With the approval of the administrator:
 
(1) An irrevocable letter of credit, issued or confirmed by a bank approved by the administrator, payable upon presentation of a certificate by the administrator stating that the provider or its agent has not complied with this chapter; or
 
(2) Bonds or other obligations of the United States or guaranteed by the United States or bonds or other obligations of this State or a political subdivision of this State, to be deposited and maintained with a bank approved by the administrator for this purpose.
 
2.  Requirements applicable to substitute.     If a provider furnishes a substitute pursuant to subsection 1, the provisions of section 6313, subsections 1, 2, 3 and 4 apply to the substitute.
§ 6315.  Requirement of good faith
A provider shall act in good faith in all matters under this chapter.
§ 6316.  Customer service
A provider that is required to be registered under this chapter shall maintain a toll-free communication system, staffed at a level that reasonably permits an individual to speak to a certified counselor, certified debt specialist or customer service representative, as appropriate, during ordinary business hours.
§ 6317.  Prerequisites for providing debt management services
 
1.  Itemized list; charges.     Before providing debt management services, a registered provider shall give the individual an itemized list of goods and services and the charges for each. The list must be clear and conspicuous, be in a record the individual may keep whether or not the individual assents to an agreement and describe the goods and services the provider offers:
 
A.  Free of additional charge if the individual enters into an agreement;
 
B.  For a charge if the individual does not enter into an agreement; and
 
C.  For a charge if the individual enters into an agreement, using the following terminology, as applicable, and format:
 
2.  Provision of services.     A provider may not furnish debt management services unless the provider, through the services of a certified counselor or certified debt specialist:
 
A.  Provides the individual with reasonable education about the management of personal finance;
 
B.  Has prepared a financial analysis; and
 
C.  If the individual is to make regular, periodic payments:
 
(1) Has prepared a plan for the individual;
 
(2) Has made a determination, based on the provider's analysis of the information provided by the individual and otherwise available to it, that the plan is suitable for the individual and the individual will be able to meet the payment obligations under the plan; and
 
(3) Believes that each creditor of the individual listed as a participating creditor in the plan will accept payment of the individual's debts as provided in the plan.
 
3.  Information to consumer.     Before an individual assents to an agreement to engage in a plan, a provider shall:
 
A.  Provide the individual with a copy of the analysis and plan required by subsection 2 in a record that identifies the provider and that the individual may keep whether or not the individual assents to the agreement;
 
B.  Inform the individual of the availability, at the individual's option, of assistance by a toll-free communication system or in person to discuss the financial analysis and plan required by subsection 2; and
 
C.  With respect to all creditors identified by the individual or otherwise known by the provider to be creditors of the individual, provide the individual with a list of:
 
(1) Creditors that the provider expects to participate in the plan and grant concessions;
 
(2) Creditors that the provider expects to participate in the plan but not grant concessions;
 
(3) Creditors that the provider expects not to participate in the plan; and
 
(4) All other creditors.
 
4.  Separate record of information.     Before an individual assents to an agreement the provider shall inform the individual in a record that contains nothing else, that is given separately, and that the individual may keep whether or not the individual assents to the agreement:
 
A.  Of the name and business address of the provider;
 
B.  That plans are not suitable for all individuals and the individual may ask the provider about other ways, including bankruptcy, to deal with indebtedness;
 
C.  That establishment of a plan may adversely affect the individual's credit rating or credit scores;
 
D.  That nonpayment of debt may lead creditors to increase finance and other charges or undertake collection activity, including litigation;
 
E.  Unless it is not true, that the provider may receive compensation from the creditors of the individual; and
 
F.  That, unless the individual is insolvent, if a creditor settles for less than the full amount of the debt, the plan may result in the creation of taxable income to the individual, even though the individual does not receive any money.
 
5.  Form; provider receiving payments from creditors.     If a provider may receive payments from an individual's creditors and the plan contemplates that the individual's creditors will reduce finance charges or fees for late payment, default or delinquency, the provider may comply with subsection 4 by providing the following disclosure, surrounded by black lines:
 
6.  Form; provider not receiving payments from creditors.     If a provider will not receive payments from an individual's creditors and the plan contemplates that the individual's creditors will reduce finance charges or fees for late payment, default or delinquency, a provider may comply with subsection 4 by providing the following disclosure, surrounded by black lines:
 
7.  Form; settle debts for less than full amount owed.     If an agreement contemplates that creditors will settle debts for less than the full principal amount of debt owed, a provider may comply with subsection 4 by providing the following disclosure, surrounded by black lines:
§ 6318.  Communication by electronic or other means
 
1.  Definitions.     As used in this section, unless the context otherwise indicates, the following terms have the following meanings.
 
A.  "Consumer" means an individual who seeks or obtains goods or services that are used primarily for personal, family or household purposes.
 
B.  "Federal act" means the federal Electronic Signatures in Global and National Commerce Act, Public Law 106-229 (2000).
 
2.  Satisfy requirements.     A provider may satisfy the requirements of section 6317, 6319 or 6327 by means of the Internet or other electronic means if the provider obtains a consumer's consent in the manner provided by Section 101(c) of the federal act.
 
3.  Disclosures.     The disclosures and materials required by section 6317, 6319 or 6327 must be presented in a form that is capable of being accurately reproduced for later reference.
 
4.  Disclosures by means of website.     With respect to disclosure by means of a website, the disclosure of the information required by section 6317 must appear on one or more screens that:
 
A.  Contain no other information; and
 
B.  The individual must see before proceeding to assent to formation of an agreement.
 
5.  Copy of materials.     At the time of providing the materials and agreement required by section 6317, subsections 3 and 4, sections 6319 and 6327, a provider shall inform the individual that upon electronic, telephonic or written request, it will send the individual a written copy of the materials and shall comply with a request as provided in subsection 6.
 
6.  No charge.     If a provider is requested, before the expiration of 90 days after an agreement is completed or terminated, to send a written copy of the materials required by section 6317, subsections 3 and 4, sections 6319 and 6327, the provider shall send the materials at no charge within 3 business days after the request is received, but the provider need not comply with a request more than once per calendar month or if it reasonably believes the request is made for purposes of harassment. If a request is made more than 90 days after an agreement is completed or terminated, the provider shall send within a reasonable time a written copy of the materials requested.
 
7.  Information on website.     A provider that maintains a website shall disclose on the home page of its a website or on a page that is clearly and conspicuously connected to the home page by a link that clearly reveals its contents:
 
A.  Its name and all names under which it does business;
 
B.  Its principal business address, telephone number and e-mail address, if any; and
 
C.  The names of its principal officers.
 
8.  Withdraw consent.     Subject to subsection 9, if a consumer who has consented to electronic communication in the manner provided by Section 101(c) of the federal act withdraws consent as provided in the federal act, a provider may terminate its agreement with the consumer.
 
9.  Notification of termination.     If a provider wishes to terminate an agreement with a consumer pursuant to subsection 8, it shall notify the consumer that it will terminate the agreement unless the consumer, within 30 days after receiving the notification, consents to electronic communication in the manner provided in Section 101(c) of the federal act. If the consumer consents, the provider may terminate the agreement only as permitted by section 6319, subsection 1, paragraph F, subparagraph (7).
§ 6319.  Form and contents of agreement
 
1.  Form; contents.     An agreement must:
 
A.  Be in a record;
 
B.  Be dated and signed by the provider and the individual;
 
C.  Include the name of the individual and the address where the individual resides;
 
D.  Include the name, business address and telephone number of the provider;
 
E.  Be delivered to the individual immediately upon formation of the agreement; and
 
F.  Disclose:
 
(1) The services to be provided;
 
(2) The amount, or method of determining the amount, of all fees, individually itemized, to be paid by the individual;
 
(3) The schedule of payments to be made by or on behalf of the individual, including the amount of each payment, the date on which each payment is due and an estimate of the date of the final payment;
 
(4) If a plan provides for regular periodic payments to creditors:
 
(a) Each creditor of the individual to which payment will be made, the amount owed to each creditor and any concessions the provider reasonably believes each creditor will offer; and
 
(b) The schedule of expected payments to each creditor, including the amount of each payment and the date on which it will be made;
 
(5) Each creditor that the provider believes will not participate in the plan and to which the provider will not direct payment;
 
(6) How the provider will comply with its obligations under section 6327, subsection 1;
 
(7) That the provider may terminate the agreement for good cause, upon return of unexpended money of the individual;
 
(8) That the individual may cancel the agreement as provided in section 6320;
 
(9) That the individual may contact the administrator with any questions or complaints regarding the provider; and
 
(10) The address, telephone number and e-mail address or website of the administrator.
 
2.  Delivery.     For purposes of subsection 1, paragraph E, delivery of an electronic record occurs when it is made available in a format in which the individual may retrieve, save and print and the individual is notified that it is available.
 
3.  Compliance.     If the administrator supplies the provider with any information required under subsection 1, paragraph F, subparagraph (10), the provider may comply with that requirement only by disclosing the information supplied by the administrator.
 
4.  Required provisions in agreement.     An agreement must provide that:
 
A.  The individual has a right to terminate the agreement at any time, without penalty or obligation, by giving the provider written or electronic notice, in which event:
 
(1) The provider will refund all unexpended money that the provider or its agent has received from or on behalf of the individual for the reduction or satisfaction of the individual's debt;
 
(2) With respect to an agreement that contemplates that creditors will settle debts for less than the principal amount of debt, the provider will refund 65% of any portion of the set-up fee that has not been credited against the settlement fee; and
 
(3) All powers of attorney granted by the individual to the provider are revoked and ineffective;
 
B.  The individual authorizes any bank in which the provider or its agent has established a trust account to disclose to the administrator any financial records relating to the trust account; and
 
C.  The provider will notify the individual within 5 days after learning of a creditor's final decision to reject or withdraw from a plan and that this notice will include:
 
(1) The identity of the creditor; and
 
(2) The right of the individual to modify or terminate the agreement.
 
5.  Power of attorney.     An agreement may confer on a provider a power of attorney to settle the individual's debt for no more than 50% of the principal amount of the debt. An agreement may not confer a power of attorney to settle a debt for more than 50% of that amount, but may confer a power of attorney to negotiate with creditors of the individual on behalf of the individual. An agreement must provide that the provider will obtain the assent of the individual after a creditor has assented to a settlement for more than 50% of the principal amount of the debt.
 
6.  Prohibition.     An agreement may not:
 
A.  Provide for application of the law of any jurisdiction other than the United States and this State;
 
B.  Except as permitted by 9 United States Code, Section 2, contain a provision that modifies or limits otherwise available forums or procedural rights, including the right to trial by jury, that are generally available to the individual under law other than this chapter;
 
C.  Contain a provision that restricts the individual's remedies under this chapter or law other than this chapter; or
 
D.  Contain a provision that:
 
(1) Limits or releases the liability of any person for not performing the agreement or for violating this chapter; or
 
(2) Indemnifies any person for liability arising under the agreement or this chapter.
 
7.  Rights and obligations exist.     All rights and obligations specified in subsection 4 and section 6320 exist even if not provided in the agreement. A provision in an agreement that violates subsection 4, 5 or 6 is void.
§ 6320.  Cancellation of agreement; waiver
 
1.  Cancellation.     An individual may cancel an agreement before midnight of the 3rd business day after the individual assents to it, unless the agreement does not comply with subsection 2 or section 6319 or 6328, in which event the individual may cancel the agreement within 30 days after the individual assents to it. To exercise the right to cancel, the individual must give notice in a record to the provider. Notice by mail is given when mailed.
 
2.  Form.     An agreement must be accompanied by a form that contains in boldface type, surrounded by bold black lines:
 
3.  Waiver of right to cancel.     If a personal financial emergency necessitates the disbursement of an individual's money to one or more of the individual's creditors before the expiration of 3 days after an agreement is signed, an individual may waive the right to cancel. To waive the right, the individual must send or deliver a signed, dated statement in the individual's own words describing the circumstances that necessitate a waiver. The waiver must explicitly waive the right to cancel. A waiver by means of a standard form record is void.
§ 6321.  Required language
Unless the administrator, by rule, provides otherwise, the disclosures and documents required by this chapter must be in English. If a provider communicates with an individual primarily in a language other than English, the provider must furnish a translation into the other language of the disclosures and documents required by this chapter.
§ 6322.  Trust account
 
1.  Deposit.     All money paid to a provider by or on behalf of an individual for distribution to creditors pursuant to a plan is held in trust. Within 2 business days after receipt, the provider shall deposit the money in a trust account established for the benefit of individuals to whom the provider is furnishing debt management services.
 
2.  Availability of funds.     Money held in trust by a provider is not property of the provider or its designee. The money is not available to creditors of the provider or designee, except an individual from whom or on whose behalf the provider received money, to the extent that the money has not been disbursed to creditors of the individual.
 
3.  Requirements; provider.     A provider shall:
 
A.  Maintain separate records of account for each individual to whom the provider is furnishing debt management services;
 
B.  Disburse money paid by or on behalf of the individual to creditors of the individual as disclosed in the agreement, except that:
 
(1) The provider may delay payment to the extent that a payment by the individual is not final; and
 
(2) If a plan provides for regular periodic payments to creditors, the disbursement must comply with the due dates established by each creditor; and
 
C.  Promptly correct any payments that are not made or that are misdirected as a result of an error by the provider or other person in control of the trust account and reimburse the individual for any costs or fees imposed by a creditor as a result of the failure to pay or misdirection.
 
4.  Commingling.     A provider may not commingle money in a trust account established for the benefit of individuals to whom the provider is furnishing debt management services with money of other persons.
 
5.  Cash balance.     A trust account must at all times have a cash balance equal to the sum of the balances of each individual's account.
 
6.  Reconciliation.     If a provider has established a trust account pursuant to subsection 1, the provider shall reconcile the trust account at least once a month. The reconciliation must compare the cash balance in the trust account with the sum of the balances in each individual's account. If the provider or its designee has more than one trust account, each trust account must be individually reconciled.
 
7.  Unlawful appropriation.     If a provider discovers, or has a reasonable suspicion of, embezzlement or other unlawful appropriation of money held in trust, the provider immediately shall notify the administrator by a method approved by the administrator. Unless the administrator by rule provides otherwise, within 5 days thereafter, the provider shall give notice to the administrator describing the remedial action taken or to be taken.
 
8.  Termination by individual.     If an individual terminates an agreement or it becomes reasonably apparent to a provider that a plan has failed, the provider shall promptly refund to the individual all money paid by or on behalf of the individual that has not been paid to creditors, less fees that are payable to the provider under section 6323.
 
9.  Relocation of trust account.     Before relocating a trust account from one bank to another, a provider shall inform the administrator of the name, business address and telephone number of the new bank. As soon as practicable, the provider shall inform the administrator of the account number of the trust account at the new bank.
§ 6323.  Fees and other charges
 
1.  Imposition of fee or charge.     A provider may not impose directly or indirectly a fee or other charge on an individual or receive money from or on behalf of an individual for debt management services except as permitted by this section.
 
2.  Agreement required.     A provider may not impose charges or receive payment for debt management services until the provider and the individual have signed an agreement that complies with sections 6319 and 6328.
 
3.  Fee for educational or counseling services.     If an individual assents to an agreement, a provider may not impose a fee or other charge for educational or counseling services, or the like, except as otherwise provided in this subsection and section 6328, subsection 4. The administrator may authorize a provider to charge a fee based on the nature and extent of the educational or counseling services furnished by the provider.
 
4.  Fees.     Subject to adjustment of dollar amounts pursuant to section 6332, subsection 6, the following rules apply.
 
A.  If an individual assents to a plan that contemplates that creditors will reduce finance charges or fees for late payment, default or delinquency, the provider may charge:
 
(1) A fee not exceeding $50 for consultation, obtaining a credit report, setting up an account and the like; and
 
(2) A monthly service fee, not to exceed $10 multiplied by the number of creditors remaining in a plan at the time the fee is assessed, but not more than $50 in any month.
 
B.  If an individual assents to an agreement that contemplates that creditors will settle debts for less than the principal amount of the debt, a provider may charge:
 
(1) Subject to section 6319, subsection 4, a fee for consultation, obtaining a credit report, setting up an account and the like, in an amount not exceeding the lesser of $400 and 4% of the debt in the plan at the inception of the plan; and
 
(2) A monthly service fee, not to exceed $10 multiplied by the number of creditors remaining in a plan at the time the fee is assessed, but not more than $50 in any month.
 
C.  A provider may not impose or receive fees under both paragraphs A and B.
 
D.  Except as otherwise provided in section 6328, subsection 4, if an individual does not assent to an agreement, a provider may receive for educational and counseling services it provides to the individual a fee not exceeding $100 or, with the approval of the administrator, a larger fee. The administrator may approve a fee larger than $100 if the nature and extent of the educational and counseling services warrant the larger fee.
 
5.  Refund.     If, before the expiration of 90 days after the completion or termination of educational or counseling services, an individual assents to an agreement, the provider shall refund to the individual any fee paid pursuant to subsection 4, paragraph D.
 
6.  Compensation.     Except as otherwise provided in subsections 3 and 4, if an agreement contemplates that creditors will settle an individual's debts for less than the principal amount of the debt, compensation for services in connection with settling a debt may not exceed, with respect to each debt:
 
A.  Thirty percent of the excess of the principal amount of the debt over the amount paid the creditor pursuant to the agreement, less, to the extent it has not been credited against an earlier settlement fee:
 
(1) The fee charged pursuant to subsection 4, paragraph B, subparagraph (1); and
 
(2) The aggregate of fees charged pursuant to subsection 4, paragraph B, subparagraph (2).
 
7.  Reasonable charges.     Subject to adjustment of the dollar amount pursuant to section 6332, subsection 6, if a payment to a provider by an individual under this chapter is dishonored, a provider may impose a reasonable charge on the individual, not to exceed the lesser of $25 and the amount permitted by law other than under this chapter.
§ 6324.  Voluntary contributions
A provider may not solicit a voluntary contribution from an individual or an affiliate of the individual for any service provided to the individual. A provider may accept voluntary contributions from an individual but, until 30 days after completion or termination of a plan, the aggregate amount of money received from or on behalf of the individual may not exceed the total amount the provider may charge the individual under section 6323.
§ 6325.  Voidable agreements
 
1.  Unauthorized charges.     If a provider imposes a fee or other charge or receives money or other payments not authorized by section 6323 or 6324, the individual may void the agreement and recover as provided in section 6335.
 
2.  Unregistered provider.     If a provider is not registered as required by this chapter when an individual assents to an agreement, the agreement is voidable by the individual.
 
3.  No claim for breach of contract.     If an individual voids an agreement under subsection 2, the provider does not have a claim against the individual for breach of contract or for restitution.
§ 6326.  Termination of agreement
 
1.  Failure to pay.     If an individual who has entered into an agreement fails for 60 days to make payments required by the agreement, a provider may terminate the agreement.
 
2.  Return to individual.     If a provider or an individual terminates an agreement, the provider shall immediately return to the individual:
 
A.  Any money of the individual held in trust for the benefit of the individual; and
 
B.  Sixty-five percent of any portion of the set-up fee received pursuant to section 6323, subsection 4, paragraph B that has not been credited against settlement fees.
§ 6327.  Periodic reports and retention of records
 
1.  Timing.     A provider shall provide the accounting required by subsection 2:
 
A.  Upon cancellation or termination of an agreement; and
 
B.  Before cancellation or termination of any agreement:
 
(1) At least once each month; and
 
(2) Within 5 business days after a request by an individual, but the provider need not comply with more than one request in any calendar month.
 
2.  Contents.     A provider, in a record, shall provide each individual for whom it has established a plan an accounting of the following information:
 
A.  The amount of money received from the individual since the last report;
 
B.  The amounts and dates of disbursement made on the individual's behalf, or by the individual upon the direction of the provider, since the last report to each creditor listed in the plan;
 
C.  The amounts deducted from the amount received from the individual;
 
D.  The amount held in reserve; and
 
E.  If, since the last report, a creditor has agreed to accept as payment in full an amount less than the principal amount of the debt owed by the individual:
 
(1) The total amount and terms of the settlement;
 
(2) The amount of the debt when the individual assented to the plan;
 
(3) The amount of the debt when the creditor agreed to the settlement; and
 
(4) The calculation of a settlement fee.
 
3.  Maintain records.     A provider shall maintain records for each individual for whom it provides debt management services for 5 years after the final payment made by the individual and produce a copy of them to the individual within a reasonable time after a request for them. The provider may use electronic or other means of storage of the records.
§ 6328.  Prohibited acts and practices
 
1.  Prohibited acts.     A provider may not, directly or indirectly:
 
A.  Misappropriate or misapply money held in trust;
 
B.  Settle a debt on behalf of an individual for more than 50% of the principal amount of the debt owed a creditor, unless the individual assents to the settlement after the creditor has assented;
 
C.  Take a power of attorney that authorizes it to settle a debt, unless the power of attorney expressly limits the provider's authority to settle debts for not more than 50% of the principal amount of the debt owed a creditor;
 
D.  Exercise or attempt to exercise a power of attorney after an individual has terminated an agreement;
 
E.  Initiate a transfer from an individual's account at a bank or with another person unless the transfer is:
 
(1) A return of money to the individual; or
 
(2) Before termination of an agreement, properly authorized by the agreement and this chapter, and for:
 
(a) Payment to one or more creditors pursuant to an agreement; or
 
(b) Payment of a fee;
 
F.  Offer a gift or bonus, premium, reward or other compensation to an individual for executing an agreement;
 
G.  Offer, pay or give a gift or bonus, premium, reward or other compensation to a person for referring a prospective customer, if the person making the referral has a financial interest in the outcome of debt management services provided to the customer, unless neither the provider nor the person making the referral communicates to the prospective customer the identity of the source of the referral;
 
H.  Receive a bonus, commission or other benefit for referring an individual to a person;
 
I.  Structure a plan in a manner that would result in a negative amortization of any of an individual's debts, unless a creditor that is owed a negatively amortizing debt agrees to refund or waive the finance charge upon payment of the principal amount of the debt;
 
J.  Compensate its employees on the basis of a formula that incorporates the number of individuals the employee induces to enter into agreements;
 
K.  Settle a debt or lead an individual to believe that a payment to a creditor is in settlement of a debt to the creditor unless, at the time of settlement, the individual receives a certification by the creditor that the payment is in full settlement of the debt;
 
L.  Make a representation that:
 
(1) The provider will furnish money to pay bills or prevent attachments;
 
(2) Payment of a certain amount will permit satisfaction of a certain amount or range of indebtedness; or
 
(3) Participation in a plan will or may prevent litigation, garnishment, attachment, repossession, foreclosure, eviction or loss of employment;
 
M.  Misrepresent that it is authorized or competent to furnish legal advice or perform legal services;
 
N.  Represent in its agreements, disclosures required by this chapter, advertisements or website that it is:
 
(1) A not-for-profit entity unless it is organized and properly operating as a not-for-profit entity under the law of the state in which it was formed; or
 
(2) A tax-exempt entity unless it has received certification of tax-exempt status from the Internal Revenue Service and is properly operating as a not-for-profit entity under the law of the state in which it was formed;
 
O.  Take a confession of judgment or power of attorney to confess judgment against an individual; or
 
P.  Employ an unfair, unconscionable or deceptive act or practice, including the knowing omission of any material information.
 
2.  Debt management services; provider prohibitions.     If a provider furnishes debt management services to an individual, the provider may not, directly or indirectly:
 
A.  Purchase a debt or obligation of the individual;
 
B.  Receive from or on behalf of the individual:
 
(1) A promissory note or other negotiable instrument other than a check or a demand draft; or
 
(2) A postdated check or demand draft;
 
C.  Lend money or provide credit to the individual, except as a deferral of a settlement fee at no additional expense to the individual;
 
D.  Obtain a mortgage or other security interest from any person in connection with the services provided to the individual;
 
E.  Except as permitted by federal law, disclose the identity or identifying information of the individual or the identity of the individual's creditors, except to:
 
(1) The administrator, upon proper demand;
 
(2) A creditor of the individual, to the extent necessary to secure the cooperation of the creditor in a plan; or
 
(3) The extent necessary to administer the plan;
 
F.  Except as otherwise provided in section 6323, subsection 6, provide the individual less than the full benefit of a compromise of a debt arranged by the provider;
 
G.  Charge the individual for or provide credit or other insurance, coupons for goods or services, membership in a club, access to computers or the Internet or any other matter not directly related to debt management services or educational services concerning personal finance; or
 
H.  Furnish legal advice or perform legal services, unless the person furnishing that advice to or performing those services for the individual is licensed to practice law.
 
3.  Practice of law not authorized.     This chapter does not authorize any person to engage in the practice of law.
 
4.  Gifts.     A provider may not receive a gift or bonus, premium, reward or other compensation, directly or indirectly, for advising, arranging or assisting an individual in connection with obtaining an extension of credit or other service from a lender or service provider, except for educational or counseling services required in connection with a government-sponsored program.
 
5.  Purchase by provider.     Unless a person supplies goods, services or facilities generally and supplies them to the provider at a cost no greater than the cost the person generally charges to others, a provider may not purchase goods, services or facilities from the person if an employee or a person that the provider should reasonably know is an affiliate of the provider and:
 
A.  Owns more than 10% of the person; or
 
B.  Is an employee or affiliate of the person.
§ 6329.  Notice of litigation
No later than 30 days after a provider has been served with notice of a civil action for violation of this chapter by or on behalf of an individual who resides in this State at either the time of an agreement or the time the notice is served, the provider shall notify the administrator in a record that it has been sued.
§ 6330.  Advertising
 
1.  Disclosure regarding obtaining credit.     If the agreements of a provider contemplate that creditors will reduce finance charges or fees for late payment, default or delinquency and the provider advertises debt management services, it shall disclose, in an easily comprehensible manner, that using a debt management plan may make it harder for the individual to obtain credit.
 
2.  Disclosure regarding credit scoring; finance charges.     If the agreements of a provider contemplate that creditors will settle for less than the full principal amount of debt and the provider advertises debt management services, it shall disclose, in an easily comprehensible manner, the information specified in section 6317, subsection 4, paragraphs C and D.
§ 6331.  Liability for the conduct of other persons
If a provider delegates any of its duties or obligations under an agreement or this chapter to another person, including an independent contractor, the provider is liable for conduct of the person that, if done by the provider, would violate the agreement or this chapter.
§ 6332.  Powers of administrator
 
1.  Actions by administrator.     The administrator may act on its own initiative or in response to complaints and may receive complaints, take action to obtain voluntary compliance with this chapter, refer cases to the Attorney General and seek or provide remedies as provided in this chapter.
 
2.  Investigation.     The administrator may investigate and examine, in this State or elsewhere, by subpoena or otherwise, the activities, books, accounts and records of a person that provides or offers to provide debt management services or a person to which a provider has delegated its obligations under an agreement or this chapter, to determine compliance with this chapter. Information that identifies individuals who have agreements with the provider may not be disclosed to the public. In connection with the investigation, the administrator may:
 
A.  Charge the person the reasonable expenses necessarily incurred to conduct the examination;
 
B.  Require or permit a person to file a statement under oath as to all the facts and circumstances of a matter to be investigated; and
 
C.  Seek a court order authorizing seizure from a bank at which the person maintains a trust account required by section 6322, any or all money, books, records, accounts and other property of the provider that is in the control of the bank and relates to individuals who reside in this State.
 
3.  General rulemaking authority.     The administrator may adopt rules to implement the provisions of this chapter. Rules adopted pursuant to this section are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.
 
4.  Cooperative agreements.     The administrator may enter into cooperative arrangements with any other federal or state agency having authority over providers and may exchange with any of those agencies information about a provider, including information obtained during an examination of the provider.
 
5.  Fees for providers.     The administrator, by rule, shall establish reasonable fees to be paid by providers for the expense of administering this chapter.
 
6.  Fees adjusted to reflect inflation.     The administrator, by rule, shall adopt dollar amounts instead of those specified in sections 6302, 6305, 6309, 6313, 6323, 6333 and 6335 to reflect inflation, as measured by the United States Bureau of Labor Statistics Consumer Price Index for All Urban Consumers or, if that index is not available, another index adopted by rule by the administrator. The administrator shall adopt a base year and adjust the dollar amounts, effective on July 1st of each year, if the change in the index from the base year as of December 31st of the preceding year is at least 10%. The dollar amount must be rounded to the nearest $100, except that the amounts in section 6323 must be rounded to the nearest dollar.
 
7.  Notification of change.     The administrator shall notify registered providers of any change in dollar amounts made pursuant to subsection 6 and make that information available to the public.
§ 6333.  Administrative remedies
 
1.  Enforcement.     The administrator may enforce this chapter and rules adopted under this chapter by taking one or more of the following actions:
 
A.  Ordering a provider or a director, employee or other agent of a provider to cease and desist from any violations;
 
B.  Ordering a provider or a person that has caused a violation to correct the violation, including making restitution of money or property to a person aggrieved by a violation;
 
C.  Subject to adjustment of the dollar amount pursuant to section 6332, subsection 6, imposing on a provider or a person that has caused a violation a civil penalty not exceeding $10,000 for each violation;
 
D.  Prosecuting a civil action to:
 
(1) Enforce an order;
 
(2) Obtain restitution or an injunction or other equitable relief, or both; or
 
E.  Intervening in an action brought under section 6335.
 
2.  Penalty.     Subject to adjustment of the dollar amount pursuant to section 6332, subsection 6, if a person violates or knowingly authorizes, directs or aids in the violation of a final order issued under subsection 1, paragraph A or B, the administrator may impose a civil penalty not exceeding $20,000 for each violation.
 
3.  Action to enforce.     The administrator may maintain an action to enforce this chapter in any jurisdiction within the State.
 
4.  Recover costs.     The administrator may recover the reasonable costs of enforcing this chapter under subsections 1 to 3, including attorney's fees based on the hours reasonably expended and the hourly rates for attorneys of comparable experience in the community.
 
5.  Amount of penalty.     In determining the amount of a civil penalty to impose under subsection 1 or 2, the administrator shall consider the seriousness of the violation, the good faith of the violator, any previous violations by the violator, the deleterious effect of the violation on the public, the net worth of the violator and any other factor the administrator considers relevant to the determination of the civil penalty.
§ 6334.  Suspension, revocation or nonrenewal of registration
 
1.  Definition.     In this section, "insolvent" means:
 
A.  Having generally ceased to pay debts in the ordinary course of business other than as a result of a good faith dispute;
 
B.  Being unable to pay debts as they become due; or
 
C.  Being insolvent within the meaning of the federal bankruptcy law, 11 United States Code, Section 101 et seq.
 
2.  Suspend; revoke; deny.     The administrator may suspend, revoke or deny renewal of a provider's registration if:
 
A.  A fact or condition exists that, if it had existed when the registrant applied for registration as a provider, would have been a reason for denying registration;
 
B.  The provider has committed a material violation of this chapter or a rule or order of the administrator under this chapter;
 
C.  The provider is insolvent;
 
D.  The provider or an employee or affiliate of the provider has refused to permit the administrator to make an examination authorized by this chapter, failed to comply with section 6332, subsection 2, paragraph B within 15 days after request or made a material misrepresentation or omission in complying with section 6332, subsection 2, paragraph B; or
 
E.  The provider has not responded within a reasonable time and in an appropriate manner to communications from the administrator.
 
3.  Summary suspension.     If a provider does not comply with section 6322, subsection 6 or if the administrator otherwise finds that the public health or safety or general welfare requires emergency action, the administrator may order a summary suspension of the provider's registration, effective on the date specified in the order.
 
4.  Seizure.     If the administrator suspends, revokes or denies renewal of the registration of a provider, the administrator may seek a court order authorizing seizure of any or all of the money in a trust account required by section 6322, books, records, accounts and other property of the provider that are located in this State.
 
5.  Appeal.     If the administrator suspends or revokes a provider's registration, the provider may appeal and request a hearing pursuant to the Maine Administrative Procedure Act.
§ 6335.  Private enforcement
 
1.  Unregistered provider.     If an individual voids an agreement pursuant to section 6325, subsection 2, the individual may recover in a civil action all money paid or deposited by or on behalf of the individual pursuant to the agreement, except amounts paid to creditors, in addition to the recovery under subsection 3, paragraphs C and D.
 
2.  Unauthorized charges.     If an individual voids an agreement pursuant to section 6325, subsection 1, the individual may recover in a civil action 3 times the total amount of the fees, charges, money and payments made by the individual to the provider, in addition to the recovery under subsection 3, paragraph D.
 
3.  Recovery.     Subject to subsection 4, an individual with respect to whom a provider violates this chapter may recover in a civil action from the provider and any person that caused the violation:
 
A.  Compensatory damages for injury, including noneconomic injury, caused by the violation;
 
B.  Except as otherwise provided in subsection 4 and subject to adjustment of the dollar amount pursuant to section 6332, subsection 6, with respect to a violation of section 6317, 6319 to 6324, 6327 or section 6328, subsection 1, 2 or 4, the greater of the amount recoverable under paragraph A or $5,000;
 
C.  Punitive damages; and
 
D.  Reasonable attorney's fees and costs.
 
4.  Class action.     In a class action, except for a violation of section 6328, subsection 1, paragraph E, the minimum damages provided in subsection 3, paragraph B do not apply.
 
5.  Additional remedy.     In addition to the remedy available under subsection 3, if a provider violates an individual's rights under section 6320, the individual may recover in a civil action all money paid or deposited by or on behalf of the individual pursuant to the agreement, except for amounts paid to creditors.
 
6.  Good faith error.     A provider is not liable under this section for a violation of this chapter if the provider proves that the violation was not intentional and resulted from a good faith error, notwithstanding the maintenance of procedures reasonably adapted to avoid the error. An error of legal judgment with respect to a provider's obligations under this chapter is not a good faith error. If, in connection with a violation, the provider has received more money than authorized by an agreement or this chapter, the defense provided by this subsection is not available unless the provider refunds the excess within 2 business days of learning of the violation.
 
7.  Judgment against security.     The administrator shall assist an individual in enforcing a judgment against the surety bond or other security provided under section 6313 or 6314.
§ 6336.  Violation of Maine Unfair Trade Practices Act
If an act or practice of a provider violates both this chapter and the Maine Unfair Trade Practices Act, an individual may not recover under both for the same act or practice.
§ 6337.  Statute of limitations
 
1.  Administrative and judicial proceedings.     An action or proceeding brought pursuant to section 6333, subsection 1, 2 or 3 must be commenced within 4 years after the conduct that is the basis of the administrator's complaint.
 
2.  Private enforcement.     An action brought pursuant to section 6335 must be commenced within 2 years after the latest of:
 
A.   The individual's last transmission of money to a provider;
 
B.  The individual's last transmission of money to a creditor at the direction of the provider;
 
C.  The provider's last disbursement to a creditor of the individual;
 
D.  The provider's last accounting to the individual pursuant to section 6327, subsection 1;
 
E.  The date on which the individual discovered or reasonably should have discovered the facts giving rise to the individual's claim; or
 
F.  Termination of actions or proceedings by the administrator with respect to a violation of the chapter.
 
3.  Tolling of period.     The period prescribed in subsection 2, paragraph E is tolled during any period during which the provider or, if different, the defendant has materially and willfully misrepresented information required by this chapter to be disclosed to the individual, if the information so misrepresented is material to the establishment of the liability of the defendant under this chapter.
§ 6338.  Uniformity of application and construction
In applying and construing this chapter, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.
§ 6339.  Relation to Electronic Signatures in Global and National Commerce Act
This chapter modifies, limits and supersedes the federal Electronic Signatures in Global and National Commerce Act, but does not modify, limit or supersede Section 101(c) of that act or authorize electronic delivery of any of the notices described in Section 103(b) of that act.
§ 6340.  Transitional provisions; application to existing transactions
Transactions entered into before this chapter takes effect and the rights, duties and interests resulting from them may be completed, terminated or enforced as required or permitted by a law amended, repealed or modified by this chapter as though the amendment, repeal or modification had not occurred.
Sec. 4. Effective date. This Act takes effect October 1, 2010.
 
SUMMARY
This bill repeals the existing law governing debt management services and enacts in its stead the Uniform Debt Management Services Act.