.................... moves to amend H.F. No. 1754, the delete everything amendment
(A09-0328), as follows:
Page 18, after line 1, insert:
1.5DEBT MANAGEMENT AND DEBT SETTLEMENT SERVICE
Section 1. Minnesota Statutes 2008, section 45.011, subdivision 1, is amended to read:
Subdivision 1. Scope.
As used in chapters 45 to 83, 155A, 332, 332A, 332B,
345, and 359, and sections
, unless the context indicates otherwise, the terms defined in this section have
the meanings given them.
Sec. 2. Minnesota Statutes 2008, section 46.04, subdivision 1, is amended to read:
Subdivision 1. General.
The commissioner of commerce, referred to in chapters 46
, and 332B
as the commissioner, is vested with all the powers,
authority, and privileges which, prior to the enactment of Laws 1909, chapter 201, were
conferred by law upon the public examiner, and shall take over all duties in relation to
state banks, savings banks, trust companies, savings associations, and other financial
institutions within the state which, prior to the enactment of chapter 201, were imposed
upon the public examiner. The commissioner of commerce shall exercise a constant
supervision, either personally or through the examiners herein provided for, over the
books and affairs of all state banks, savings banks, trust companies, savings associations,
credit unions, industrial loan and thrift companies, and other financial institutions doing
business within this state; and shall, through examiners, examine each financial institution
at least once every 24 calendar months. In satisfying this examination requirement, the
commissioner may accept reports of examination prepared by a federal agency having
comparable supervisory powers and examination procedures. With the exception of
industrial loan and thrift companies which do not have deposit liabilities and licensed
regulated lenders, it shall be the principal purpose of these examinations to inspect and
verify the assets and liabilities of each and so far investigate the character and value of
the assets of each institution as to determine with reasonable certainty that the values are
correctly carried on its books. Assets and liabilities shall be verified in accordance with
methods of procedure which the commissioner may determine to be adequate to carry out
the intentions of this section. It shall be the further purpose of these examinations to
assess the adequacy of capital protection and the capacity of the institution to meet usual
and reasonably anticipated deposit withdrawals and other cash commitments without
resorting to excessive borrowing or sale of assets at a significant loss, and to investigate
each institution's compliance with applicable laws and rules. Based on the examination
findings, the commissioner shall make a determination as to whether the institution
is being operated in a safe and sound manner. None of the above provisions limits the
commissioner in making additional examinations as deemed necessary or advisable. The
commissioner shall investigate the methods of operation and conduct of these institutions
and their systems of accounting, to ascertain whether these methods and systems are
in accordance with law and sound banking principles. The commissioner may make
requirements as to records as deemed necessary to facilitate the carrying out of the
commissioner's duties and to properly protect the public interest. The commissioner may
examine, or cause to be examined by these examiners, on oath, any officer, director,
trustee, owner, agent, clerk, customer, or depositor of any financial institution touching
the affairs and business thereof, and may issue, or cause to be issued by the examiners,
subpoenas, and administer, or cause to be administered by the examiners, oaths. In
case of any refusal to obey any subpoena issued under the commissioner's direction,
the refusal may at once be reported to the district court of the district in which the bank
or other financial institution is located, and this court shall enforce obedience to these
subpoenas in the manner provided by law for enforcing obedience to subpoenas of the
court. In all matters relating to official duties, the commissioner of commerce has the
power possessed by courts of law to issue subpoenas and cause them to be served and
enforced, and all officers, directors, trustees, and employees of state banks, savings banks,
trust companies, savings associations, and other financial institutions within the state,
and all persons having dealings with or knowledge of the affairs or methods of these
institutions, shall afford reasonable facilities for these examinations, make returns and
reports to the commissioner of commerce as the commissioner may require; attend and
answer, under oath, the commissioner's lawful inquiries; produce and exhibit any books,
accounts, documents, and property as the commissioner may desire to inspect, and in all
things aid the commissioner in the performance of duties.
Sec. 3. Minnesota Statutes 2008, section 46.05, is amended to read:
3.246.05 SUPERVISION OVER FINANCIAL INSTITUTIONS.
Every state bank, savings bank, trust company, savings association, debt management
services provider, debt settlement services provider,
and other financial institutions shall
be at all times under the supervision and subject to the control of the commissioner
of commerce. If, and whenever in the performance of duties, the commissioner finds
it necessary to make a special investigation of any financial institution under the
commissioner's supervision, and other than a complete examination, the commissioner
shall make a charge therefor to include only the necessary costs thereof. Such a fee shall
be payable to the commissioner on the commissioner's making a request for payment.
Sec. 4. Minnesota Statutes 2008, section 46.131, subdivision 2, is amended to read:
Subd. 2. Assessment authority.
Each bank, trust company, savings bank, savings
association, regulated lender, industrial loan and thrift company, credit union, motor
vehicle sales finance company, debt management services provider, debt settlement
and insurance premium finance company organized under the laws of
this state or required to be administered by the commissioner of commerce shall pay
into the state treasury its proportionate share of the cost of maintaining the Department
Sec. 5. Minnesota Statutes 2008, section 325E.311, subdivision 6, is amended to read:
Subd. 6. Telephone solicitation.
"Telephone solicitation" means any voice
communication over a telephone line for the purpose of encouraging the purchase or
rental of, or investment in, property, goods, or services, whether the communication is
made by a live operator, through the use of an automatic dialing-announcing device as
defined in section
325E.26, subdivision 2
, or by other means. Telephone solicitation
does not include communications:
(1) to any residential subscriber with that subscriber's prior express invitation or
(2) by or on behalf of any person or entity with whom a residential subscriber has a
prior or current business or personal relationship.
Telephone solicitation also does not include communications if the caller is identified by a
caller identification service and the call is:
(i) by or on behalf of an organization that is identified as a nonprofit organization
under state or federal law, unless the organization is a debt management services provider
defined in section
332A.02 or a debt settlement services provider defined in section
(ii) by a person soliciting without the intent to complete, and who does not in
fact complete, the sales presentation during the call, but who will complete the sales
presentation at a later face-to-face meeting between the solicitor who makes the call
and the prospective purchaser; or
(iii) by a political party as defined under section
200.02, subdivision 6
Sec. 6. Minnesota Statutes 2008, section 332A.02, is amended by adding a subdivision
4.10 Subd. 2a. Advertise. "Advertise" means to solicit business through any means or
Sec. 7. Minnesota Statutes 2008, section 332A.02, subdivision 5, is amended to read:
Subd. 5. Controlling or affiliated party.
"Controlling or affiliated party" means
any person or entity that controls or is controlled,
directly or indirectly
4.15 controlled by
, or is
under common control with another person. Controlling or affiliated
4.16party includes, but is not limited to, employees, officers, independent contractors,
4.17corporations, partnerships, and limited liability corporations.
Sec. 8. Minnesota Statutes 2008, section 332A.02, subdivision 8, is amended to read:
Subd. 8. Debt management services provider.
"Debt management services
provider" means any person offering or providing debt management services to a debtor
domiciled in this state, regardless of whether or not a fee is charged for the services and
regardless of whether the person maintains a physical presence in the state. This term
4.23includes any person to whom duties under a debt management services agreement or
4.24debt management services plan are delegated, and
does not include services performed
by the following when engaged in the regular course of their respective businesses and
(1) attorneys at law, escrow agents, accountants, broker-dealers in securities;
(2) state or national banks, trust companies, savings associations, title insurance
companies, insurance companies, and all other lending institutions duly authorized to
transact business in Minnesota
, provided no fee is charged for the service
(3) persons who, as employees on a regular salary or wage of an employer not
engaged in the business of debt management, perform credit services for their employer;
(4) public officers acting in their official capacities and persons acting as a debt
management services provider pursuant to court order;
(5) any person while performing services incidental to the dissolution, winding up,
or liquidation of a partnership, corporation, or other business enterprise;
(6) the state, its political subdivisions, public agencies, and their employees;
credit unions and
collection agencies, provided
no fee is charged for the service
5.5that the services are provided to a creditor
(8) "qualified organizations" designated as representative payees for purposes of the
Social Security and Supplemental Security Income Representative Payee System and the
federal Omnibus Budget Reconciliation Act of 1990, Public Law 101-508;
(9) accelerated mortgage payment providers. "Accelerated mortgage payment
providers" are persons who, after satisfying the requirements of sections
, receive funds to make mortgage payments to a lender or lenders, on behalf
of mortgagors, in order to exceed regularly scheduled minimum payment obligations
under the terms of the indebtedness. The term does not include: (i) persons or entities
described in clauses (1) to (8); (ii) mortgage lenders or servicers, industrial loan and
thrift companies, or regulated lenders under chapter 56; or (iii) persons authorized to
make loans under section
47.20, subdivision 1
. For purposes of this clause and sections
, "lender" means the original lender or that lender's assignee, whichever
is the current mortgage holder;
(10) trustees, guardians, and conservators;
(11) debt settlement services
5.21(12) credit unions.
Sec. 9. Minnesota Statutes 2008, section 332A.02, subdivision 9, is amended to read:
Subd. 9. Debt management services.
"Debt management services" means the
provision of any
one or more of the following
in connection with debt incurred
5.25 primarily for personal, family, or household services:
5.26 (1) managing the financial affairs of an individual by distributing income or money
5.27 to the individual's creditors;
5.28 (2) receiving funds for the purpose of distributing the funds among creditors in
5.29 payment or partial payment of obligations of a debtor; or
5.30 (3) adjusting, prorating, pooling, or liquidating the indebtedness of a debtor whereby
5.31a debt management services provider assists in managing the financial affairs of a debtor
5.32by distributing periodic payments to the debtor's creditors from funds that the debt
5.33management services provider receives from the debtor and where the primary purpose
5.34of the services is to effect repayment of debt incurred primarily for personal, family, or
Any person so engaged or holding out as so engaged is deemed to be engaged in the
provision of debt management services regardless of whether or not a fee is charged for
Sec. 10. Minnesota Statutes 2008, section 332A.02, subdivision 10, is amended to read:
Subd. 10. Debtor.
"Debtor" means the person for whom the debt
6.6 is management services are
Sec. 11. Minnesota Statutes 2008, section 332A.02, subdivision 13, is amended to read:
Subd. 13. Debt settlement services provider.
"Debt settlement services
means any person engaging in or holding out as engaging in the business of negotiating,
6.10 adjusting, or settling debt incurred primarily for personal, family, or household purposes
6.11 without holding or receiving the debtor's funds or personal property and without paying
6.12 the debtor's funds to, or distributing the debtor's property among, creditors has the
6.13meaning given in section 332B.02, subdivision 10
. The term shall not include persons
listed in subdivision 8, clauses (1) to (10).
Sec. 12. Minnesota Statutes 2008, section 332A.04, subdivision 6, is amended to read:
Subd. 6. Right of action on bond.
If the registrant has failed to account to a debtor
or distribute to the debtor's creditors the amounts required by this chapter
and, or has
6.18failed to perform any of the services promised in
the debt management services agreement
between the debtor and registrant
, the registrant is in default.
The debtor or the debtor's
legal representative or receiver, the commissioner, or the attorney general, shall have, in
addition to all other legal remedies, a right of action in the name of the debtor on the bond
or the security given under this section, for loss suffered by the debtor, not exceeding the
face amount of the bond or security, and without the necessity of joining the registrant
in the suit or action based on the default
Sec. 13. Minnesota Statutes 2008, section 332A.08, is amended to read:
6.26332A.08 DENIAL OF REGISTRATION.
The commissioner, with notice to the applicant by certified mail sent to the address
listed on the application, may deny an application for a registration upon finding that
(1) has submitted an application required under section
incorrect, misleading, incomplete, or materially untrue information. An application is
incomplete if it does not include all the information required in section
(2) has failed to pay any fee or pay or maintain any bond required by this chapter,
or failed to comply with any order, decision, or finding of the commissioner made under
and within the authority of this chapter;
(3) has violated any provision of this chapter or any rule or direction lawfully made
by the commissioner under and within the authority of this chapter;
(4) or any controlling or affiliated party has ever been convicted of a crime or found
civilly liable for an offense involving moral turpitude, including forgery, embezzlement,
obtaining money under false pretenses, larceny, extortion, conspiracy to defraud, or any
other similar offense or violation, or any violation of a federal or state law or regulation
in connection with activities relating to the rendition of debt management services or
any consumer fraud, false advertising, deceptive trade practices, or similar consumer
(5) has had a registration or license previously revoked or suspended in this state or
any other state or the applicant or licensee has been permanently or temporarily enjoined
by any court of competent jurisdiction from engaging in or continuing any conduct or
practice involving any aspect of the debt management services provider business; or
any controlling or affiliated party has been an officer, director, manager, or shareholder
owning more than a ten percent interest in a debt management services provider whose
registration has previously been revoked or suspended in this state or any other state, or
who has been permanently or temporarily enjoined by any court of competent jurisdiction
from engaging in or continuing any conduct or practice involving any aspect of the debt
management services provider business;
(6) has made any false statement or representation to the commissioner;
(7) is insolvent;
(8) refuses to fully comply with an investigation or examination of the debt
management services provider by the commissioner;
(9) has improperly withheld, misappropriated, or converted any money or properties
received in the course of doing business;
(10) has failed to have a trust account with an actual cash balance equal to or greater
than the sum of the escrow balances of each debtor's account;
(11) has defaulted in making payments to creditors on behalf of debtors as required
by agreements between the provider and debtor;
(12) has used fraudulent, coercive, or dishonest practices, or demonstrated
incompetence, untrustworthiness, or financial irresponsibility in this state or elsewhere; or
7.35(13) has been shown to have engaged in a pattern of failing to perform the services
Sec. 14. Minnesota Statutes 2008, section 332A.10, is amended to read:
8.2332A.10 WRITTEN DEBT MANAGEMENT SERVICES AGREEMENT.
Subdivision 1. Written agreement required. (a)
A debt management services
provider may not perform any debt management services or receive any money related
to a debt management services plan until the provider has obtained a debt management
services agreement that contains all terms of the agreement between the debt management
services provider and the debtor.
A debt management services agreement must:
be in writing, dated, and signed by the debt management services provider and
8.11(2) conspicuously indicate whether or not the debt management services provider
8.12is registered with the Minnesota Department of Commerce and include any registration
8.14(3) be written in the debtor's primary language if the debt management services
8.15provider advertised in that language
The registrant must furnish the debtor with a copy of the signed contract upon
Subd. 2. Actions prior to written agreement.
No person may provide debt
management services for a debtor or execute a debt management services agreement
unless the person first has:
(1) provided the debtor individualized counseling and educational information
that, at a minimum, addresses managing household finances, managing credit and debt,
budgeting, and personal savings strategies;
(2) prepared in writing and provided to the debtor, in a form that the debtor may
keep, an individualized financial analysis and a proposed debt management services
plan listing the debtor's known debts with specific recommendations regarding actions
the debtor should take to reduce or eliminate the amount of the debts, including written
disclosure that debt management services are not suitable for all debtors and that there are
other ways, including bankruptcy, to deal with indebtedness;
(3) made a determination supported by an individualized financial analysis that the
debtor can reasonably meet the requirements of the proposed debt management services
plan and that there is a net tangible benefit to the debtor of entering into the proposed debt
management services plan;
(4) prepared, in a form the debtor may keep, a written list identifying all known
creditors of the debtor that the provider reasonably expects to participate in the plan
and the creditors, including secured creditors, that the provider reasonably expects not
to participate; and
9.3(5) disclosed, in addition to the written disclosure on the agreement required under
9.4subdivision 1, whether or not the debt management services provider is registered with the
9.5Minnesota Department of Commerce and any registration number
Subd. 3. Required
(a) Each debt management services
agreement must contain the following
, which must be disclosed
prominently and clearly in bold print on the front page of the agreement, segregated by
bold lines from all other information on the page:
(1) the origination
fee amount to be paid by the debtor and whether all or a portion
is refundable or nonrefundable;
(2) the monthly fee amount or percentage to be paid by the debtor; and
(3) the total amount of fees reasonably anticipated to be paid by the debtor over
the term of the agreement.
(b) Each debt management services agreement must also contain the following:
(1) a disclosure that if the amount of debt owed is increased by interest, late fees,
over the limit fees, and other amounts imposed by the creditors, the length of the debt
management services agreement will be extended and remain in force and that the total
dollar charges agreed upon may increase at the rate agreed upon in the original contract
(2) a prominent statement describing the terms upon which the debtor may cancel
the contract as set forth in section
(3) a detailed description of all services to be performed by the debt management
services provider for the debtor;
(4) the debt management services provider's refund policy; and
(5) the debt management services provider's principal business address and the name
and address of its agent in this state authorized to receive service of process.
Subd. 4. Prohibited terms.
The following terms shall not be included in the debt
management services agreement:
(1) a hold harmless clause;
(2) a confession of judgment, or a power of attorney to confess judgment against the
debtor or appear as the debtor in any judicial proceeding;
(3) a waiver of the right to a jury trial, if applicable, in any action brought by
or against a debtor;
(4) an assignment of or an order for payment of wages or other compensation for
(5) a provision in which the debtor agrees not to assert any claim or defense arising
out of the debt management services agreement;
(6) a waiver of any provision of this chapter or a release of any obligation required
to be performed on the part of the debt management services provider; or
(7) a mandatory arbitration or choice of law
Subd. 5. New debt management services agreements; modification of existing
(a) Separate and additional debt management services agreements that
comply with this chapter may be entered into by the debt management services provider
and the debtor provided that no additional
fee may be charged by the
debt management services provider.
(b) Any modification of an existing debt management services agreement, including
any increase in the number or amount of debts included in the debt management
, must be in writing and signed by both parties, except that the signature
of the debtor is not required if:
(1) a creditor is added to or deleted from a debt management services agreement
at the request of the debtor or a debtor voluntarily increases the amount of a payment,
provided the debt management services provider must provide an updated payment
schedule to the debtor within seven days; or
(2) the payment amount to a creditor in the agreement increases by $10 or less
and the total payment amount to all creditors increases a total of $20 or less as a result
of incorrect or incomplete information provided by the debtor regarding the amount of
debt owed a creditor, provided the debt management services provider must notify the
debtor of the increase within seven days.
No fees, charges, or other consideration may be demanded from the debtor for
the modification, other than an increase in the amount of the monthly maintenance fee
established in the original debt management services agreement.
Sec. 15. Minnesota Statutes 2008, section 332A.11, subdivision 2, is amended to read:
Subd. 2. Notice of debtor's right to cancel.
A debt management services
agreement must contain, on its face, in an easily readable
adjacent to the space for signature by the debtor, the following notice: "Right To Cancel:
You have the right to cancel this contract at any time on ten days' written notice."
Sec. 16. Minnesota Statutes 2008, section 332A.14, is amended to read:
A registrant (a) No debt management services provider
(1) purchase from a creditor any obligation of a debtor;
(2) use, threaten to use, seek to have used, or seek to have threatened the use of any
legal process, including but not limited to garnishment and repossession of personal
property, against any debtor while the debt management services agreement between the
registrant and the debtor remains executory;
(3) advise, counsel, or encourage
a debtor to stop paying a creditor
until a debt
11.7 management services plan is in place, or imply, infer, encourage, or in any other way
11.8indicate, that it is advisable to stop paying a creditor
11.9(4) sanction or condone the act by a debtor of ceasing payments or imply, infer,
11.10or in any manner indicate that the act of ceasing payments is advisable or beneficial to
require as a condition of performing debt management services the purchase
of any services, stock, insurance, commodity, or other property or any interest therein
either by the debtor or the registrant;
compromise any debts unless the prior written approval of the debtor has
been obtained to such compromise and unless such compromise inures solely to the
benefit of the debtor;
receive from any debtor as security or in payment of any fee a promissory
note or other promise to pay or any mortgage or other security, whether as to real or
lend money or provide credit to any debtor if any interest or fee is charged,
or directly or indirectly collect any fee for referring, advising, procuring, arranging, or
assisting a consumer in obtaining any extension of credit or other debtor service from a
lender or debt management services provider;
structure a debt management services agreement that would result in negative
amortization of any debt in the plan;
engage in any unfair, deceptive, or unconscionable act or practice in
connection with any service provided to any debtor;
offer, pay, or give any material cash fee, gift, bonus, premium, reward, or
other compensation to any person for referring any prospective customer to the registrant
or for enrolling a debtor in a debt management services plan, or provide any other
incentives for employees or agents of the debt management services provider to induce
debtors to enter into a debt management services plan;
receive any cash, fee, gift, bonus, premium, reward, or other compensation
from any person other than the debtor or a person on the debtor's behalf in connection
with activities as a registrant, provided that this paragraph does not apply to a registrant
which is a bona fide nonprofit corporation duly organized under chapter 317A or under
the similar laws of another state;
enter into a contract with a debtor unless a thorough written budget analysis
indicates that the debtor can reasonably meet the requirements of the financial adjustment
plan and will be benefited by the plan;
in any way charge or purport to charge or provide any debtor credit
insurance in conjunction with any contract or agreement involved in the debt management
operate or employ a person who is an employee or owner of a collection
agency or process-serving business; or
solicit, demand, collect, require, or attempt to require payment of a sum
that the registrant states, discloses, or advertises to be a voluntary contribution to a debt
12.13management services provider or designee
from the debtor.
Sec. 17. [332B.02] DEFINITIONS.
12.15 Subdivision 1. Scope. Unless a different meaning is clearly indicated by the context,
12.16for the purposes of this chapter, the terms defined in this section have the meanings given
12.18 Subd. 2. Advertise. "Advertise" means to solicit business through any means or
12.20 Subd. 3. Aggregate debt. "Aggregate debt" means the total of principal and interest
12.21that is owed by the debtor to the creditors at the time of execution of the debt settlement
12.23 Subd. 4. Attorney general. "Attorney general" means the attorney general of the
12.24state of Minnesota.
12.25 Subd. 5. Commissioner. "Commissioner" means the commissioner of commerce.
12.26 Subd. 6. Controlling or affiliated party. "Controlling or affiliated party" means
12.27any person or entity that controls or is controlled, directly or indirectly, or is under
12.28common control with another person. Controlling or affiliated party includes, but is not
12.29limited to, employees, officers, independent contractors, corporations, partnerships, and
12.30limited liability corporations.
12.31 Subd. 7. Debt settlement services. "Debt settlement services" means any one or
12.32more of the following activities:
12.33(1) offering to provide advice, or offering to act or acting as an intermediary between
12.34a debtor and one or more of the debtor's creditors, where the primary purpose of the
13.1advice or action is to obtain a settlement for less than the full amount of debt, whether
13.2in principal, interest, fees, or other charges, incurred primarily for personal, family, or
13.3household purposes including, but not limited to, offering debt negotiation, debt reduction,
13.4or debt relief services; or
13.5(2) advising, encouraging, assisting, or counseling a debtor to accumulate funds in
13.6an account for future payment of a reduced amount of debt to one or more of the debtor's
13.8Any person so engaged or holding out as so engaged is deemed to be engaged in
13.9the provision of debt settlement services, regardless of whether or not a fee is charged for
13.11 Subd. 8. Debt settlement services agreement. "Debt settlement services
13.12agreement" means the written contract between the debt settlement services provider
13.13and the debtor.
13.14 Subd. 9. Debt settlement services plan. "Debt settlement services plan" means the
13.15debtor's individualized package of debt settlement services set forth in the debt settlement
13.17 Subd. 10. Debt settlement services provider. "Debt settlement services provider"
13.18means any person offering or providing debt settlement services to a debtor domiciled
13.19in this state, regardless of whether or not a fee is charged for the services and regardless
13.20of whether the person maintains a physical presence in the state. The term includes any
13.21person to whom duties under a debt management agreement or debt management plan
13.23 Subd. 11. Person. "Person" means an individual, firm, partnership, association,
Sec. 18. [332B.03] REQUIREMENT OF REGISTRATION.
13.26On or after August 1, 2009, it is unlawful for any person, whether or not located
13.27in this state, to operate as a debt settlement services provider or provide debt settlement
13.28services including, but not limited to, offering, advertising, or executing or causing to be
13.29executed any debt settlement services or debt settlement services agreement, except as
13.30authorized by law, without first becoming registered as provided in this chapter. Debt
13.31settlement services providers may continue to provide debt settlement services without
13.32complying with this chapter to those debtors who entered into a contract to participate
13.33in a debt settlement services plan prior to August 1, 2009, but may not enter into a debt
13.34settlement services agreement with a debt on or after August 1, 2009, without complying
13.35with this chapter.
Sec. 19. [332B.04] REGISTRATION.
14.2 Subdivision 1. Form. Application for registration to operate as a debt settlement
14.3services provider in this state must be made in writing to the commissioner, under oath, in
14.4the form prescribed by the commissioner, and must contain:
14.5(1) the full name of each principal of the entity applying;
14.6(2) the address, which must not be a post office box, and the telephone number and,
14.7if applicable, the e-mail address, of the applicant;
14.8(3) consent to the jurisdiction of the courts of this state;
14.9(4) the name and address of the registered agent authorized to accept service of
14.10process on behalf of the applicant or appointment of the commissioner as the applicant's
14.11agent for purposes of accepting service of process;
14.12(5) disclosure of:
14.13(i) whether any controlling or affiliated party has ever been convicted of a crime
14.14or found civilly liable for an offense involving moral turpitude, including forgery,
14.15embezzlement, obtaining money under false pretenses, larceny, extortion, conspiracy to
14.16defraud, or any other similar offense or violation, or any violation of a federal or state
14.17law or regulation in connection with activities relating to the rendition of debt settlement
14.18services or involving any consumer fraud, false advertising, deceptive trade practices, or
14.19similar consumer protection law;
14.20(ii) any judgments, private or public litigation, tax liens, written complaints,
14.21administrative actions, or investigations by any government agency against the applicant
14.22or any officer, director, manager, or shareholder owning more than five percent interest
14.23in the applicant, unresolved or otherwise, filed or otherwise commenced within the
14.24preceding ten years;
14.25(iii) whether the applicant or any person employed by the applicant has had a record
14.26of having defaulted in the payment of money collected for others, including the discharge
14.27of debts through bankruptcy proceedings; and
14.28(iv) whether the applicant's license or registration to provide debt settlement services
14.29in any other state has ever been revoked or suspended;
14.30(6) a copy of the applicant's standard debt settlement services agreement that the
14.31applicant intends to execute with debtors;
14.32(7) proof of accreditation; and
14.33(8) any other information and material as the commissioner may require.
14.34The commissioner may, for good cause shown, temporarily waive any requirement
14.35of this subdivision.
15.1 Subd. 2. Term and scope of registration. A registration is effective until 11:59
15.2p.m. on December 31 of the year for which the application for registration is filed or until
15.3it is surrendered by the registrant or revoked or suspended by the commissioner. The
15.4registration is limited solely to the business of providing debt settlement services.
15.5 Subd. 3. Fees; bond. An applicant for registration as a debt settlement services
15.6provider must comply with the requirements of section 332A.04, subdivisions 3, 4, and 5.
15.7 Subd. 4. Right of action on bond. If the registrant has failed to account to a debtor,
15.8or has failed to perform any of the services promised, the registrant is in default. The
15.9debtor or the debtor's legal representative or receiver, the commissioner, or the attorney
15.10general, shall have, in addition to all other legal remedies, a right of action in the name of
15.11the debtor on the bond or the security given under this section, for loss suffered by the
15.12debtor, not exceeding the face amount of the bond or security, and without the necessity of
15.13joining the registrant in the suit or action based on the default.
15.14 Subd. 5. Registrant list. The commissioner must maintain a list of registered debt
15.15settlement services providers. The list must be made available to the public in written
15.16form upon request and on the Department of Commerce Web site.
15.17 Subd. 6. Renewal of registration. Each year, each registrant under the provisions
15.18of this chapter must not, more than 60 nor less than 30 days before its registration is to
15.19expire, apply to the commissioner for renewal of its registration on a form prescribed by
15.20the commissioner. The application must be signed by the registrant under penalty of
15.21perjury, contain current information on all matters required in the original application, and
15.22be accompanied by a payment of $250. The registrant must maintain a continuous surety
15.23bond that satisfies the requirements of section 332A.04, subdivision 4. The renewal is
15.24effective for one year. The commissioner may, for good cause shown, temporarily waive
15.25any requirement of this section.
Sec. 20. [332B.05] DENIAL, SUSPENSION, REVOCATION, OR
15.27NONRENEWAL OF REGISTRATION.
15.28 Subdivision 1. Denial. The commissioner, with notice to the applicant by certified
15.29mail sent to the address listed on the application, may deny an application for a registration
15.30for any of the reasons specified under section 332A.08.
15.31 Subd. 2. Suspension, revocation, or nonrenewal. The commissioner may suspend,
15.32revoke, or refuse to renew any registration issued under this chapter, or may levy a civil
15.33penalty under section 45.027, or any combination of actions, if the debt settlement services
15.34provider or any controlling or affiliated person has committed any act or omission for
15.35which the commissioner could have refused to issue an initial registration.
16.1 Subd. 3. Procedure. Suspension, revocation, or nonrenewal must be upon notice
16.2and under the conditions prescribed in section 332A.09, subdivision 1. Upon issuance of
16.3an order suspending, revoking, or refusing to renew a registration, the commissioner:
16.4(1) shall follow the procedure established in section 332A.09, subdivision 2; and
16.5(2) may follow the procedure specified in section 332A.09, subdivision 3, concerning
16.6the appointment of a receiver for funds of sanctioned registrants.
Sec. 21. [332B.06] WRITTEN DEBT SETTLEMENT SERVICES AGREEMENT;
16.8DISCLOSURES; TRUST ACCOUNT.
16.9 Subdivision 1. Written agreement required. (a) A debt settlement services
16.10provider may not perform, or impose any charges or receive any payment for, any debt
16.11settlement services until the provider and the debtor have executed a debt settlement
16.12services agreement that contains all terms of the agreement between the debt settlement
16.13services provider and the debtor and complies with all the applicable requirements of
16.15(b) A debt settlement services agreement must:
16.16(1) be in writing, dated, and signed by the debt settlement services provider and
16.18(2) conspicuously indicate whether or not the debt settlement services provider is
16.19registered with the Minnesota Department of Commerce and include any registration
16.21(3) be written in the debtor's primary language if the debt settlement services
16.22provider advertises in that language.
16.23(c) The registrant must furnish the debtor with a copy of the signed contract upon
16.25 Subd. 2. Actions prior to executing a written agreement. No person may provide
16.26debt settlement services for a debtor or execute a debt settlement services agreement
16.27unless the person first has:
16.28(1) provided the debtor individualized counseling that, at a minimum, addresses
16.29managing household finances, managing credit and debt, budgeting, personal savings
16.30strategies, and a detailed description of all the various ways to reduce or eliminate the
16.31debt, which must, at a minimum, include bankruptcy; and
16.32(2) prepared in writing and provided to the debtor, in a form the debtor may keep,
16.33an individualized financial analysis of the debtor's financial circumstances, including
16.34income and liabilities, and made a determination supported by the individualized financial
17.1(i) the debt settlement plan proposed for addressing the debt is suitable for the
17.3(ii) the debtor can reasonably meet the requirements of the proposed debt settlement
17.4services plan; and
17.5(iii) there is a net tangible benefit to the debtor of entering into the proposed debt
17.6settlement services plan.
17.7 Subd. 3. Disclosures. (a) A person offering to provide or providing debt settlement
17.8services must disclose both orally and in writing whether or not the person is registered
17.9with the Minnesota Department of Commerce and any registration number.
17.10(b) No person may provide debt settlement services unless the person first has
17.11provided, both orally and in writing, on a single sheet of paper, separate from any other
17.12document or writing, the following verbatim notice:
17.14We CANNOT GUARANTEE that you will successfully reduce or eliminate your
17.16You SHOULD NOT stop paying your creditors.
17.17Fees, interest, and other charges will continue to mount up during the (insert
17.18number) months this plan is in effect.
17.19Even if you sign up for this service:
17.20• YOUR WAGES OR BANK ACCOUNT MAY STILL BE GARNISHED.
17.21• YOU MAY STILL BE CONTACTED BY CREDITORS.
17.22• YOU MAY STILL BE SUED BY CREDITORS for the money you owe.
17.23Even if we do settle your debt, YOU MAY STILL HAVE TO PAY TAXES on
17.24the amount forgiven.
17.25Your credit rating may be adversely affected.
17.26(c) The heading, "WARNING," must be in bold, underlined, 28-point type, and the
17.27remaining text must be in 14-point type, with a double space between each statement.
17.28(d) The disclosure and notice required under this subdivision must be provided in
17.29the debtor's primary language if the debt settlement provider advertises in that language.
17.30 Subd. 4. Required information. (a) Each debt settlement services agreement must
17.31contain the following information, which must be disclosed prominently and clearly in
17.32bold print on the front page of the agreement, segregated by bold lines from all other
17.33information on the page:
17.34(1) the origination fee amount to be paid by the debtor and whether all or part of the
17.35origination fee is refundable or nonrefundable; and
18.1(2) the service fee formula and the total amount of service fees reasonably
18.2anticipated to be paid by the debtor over the term of the agreement.
18.3(b) Each debt settlement services agreement must also contain the following:
18.4(1) a prominent statement describing the terms upon which the debtor may cancel
18.5the contract as set forth in section 332B.07;
18.6(2) a detailed description of all services to be performed by the debt settlement
18.7services provider for the debtor;
18.8(3) the debt settlement services provider's refund policy;
18.9(4) the debt settlement services provider's principal business address, which must
18.10not be a post office box, and the name and address of its agent in this state authorized to
18.11receive service of process; and
18.12(5) the name of each creditor the debtor has listed and the aggregate debt owed to
18.13each creditor that will be the subject of settlement.
18.14 Subd. 5. Prohibited terms. A debt settlement services agreement may not contain
18.15any of the terms prohibited under section 332A.10, subdivision 4.
18.16 Subd. 6. New debt settlement services agreements; modifications of existing
18.17agreements. (a) Separate and additional debt settlement services agreements that comply
18.18with this chapter may be entered into by the debt settlement services provider and the
18.19debtor, provided that no additional origination fee may be charged by the debt settlement
18.21(b) Any modification of an existing debt settlement services agreement, including
18.22any increase in the number or amount of debts included in the debt settlement services
18.23agreement, must be in writing and signed by both parties. No fee may be charged to
18.24modify an existing agreement.
18.25 Subd. 7. Payments held in trust. If the registrant holds funds for the debtor, the
18.26registrant must maintain a separate trust account and deposit in the account all payments
18.27received from the moment that the funds are available, except that the registrant may
18.28commingle the payment with the registrant's own property or funds, but only to the extent
18.29necessary to ensure the maintenance of a minimum balance if the financial institution at
18.30which the trust account is held requires a minimum balance to avoid the assessment of
18.31fees or penalties for failure to maintain a minimum balance. All disbursements, whether
18.32to the debtor or to the creditors of the debtor, or to the registrant, must be made from
Sec. 22. [332B.07] RIGHT TO CANCEL.
19.1 Subdivision 1. Debtor's right to cancel. (a) A debtor has the right to cancel a debt
19.2settlement services agreement without cause at any time upon ten days' written notice
19.3to the debt settlement services provider.
19.4(b) In the event of cancellation, the debt settlement services provider must, within
19.5ten days of the cancellation, notify the debtor's creditors of the cancellation and provide
19.6a refund of all funds paid by or for the debtor to the debt settlement services provider,
19.7except for the origination fee specified in section 332B.09, subdivision 1.
19.8 Subd. 2. Notice of debtor's right to cancel. A debt settlement services agreement
19.9must contain, on its face, in an easily readable type immediately adjacent to the space for
19.10signature by the debtor, the following notice: "Right to Cancel: You have the right to
19.11cancel this contract at any time on ten days' written notice."
19.12 Subd. 3. Automatic termination. Upon the payment of all listed or settled debts
19.13and fees, the debt settlement services agreement must automatically terminate, and all
19.14unexpended funds paid by or for the debtor to the debt settlement services provider must
19.15be immediately returned to the debtor.
19.16 Subd. 4. Debt settlement services provider's right to cancel. (a) A debt settlement
19.17services provider may cancel a debt settlement services agreement with good cause upon
19.1830 days' written notice to the debtor.
19.19(b) Within ten days after the cancellation, the debt settlement services provider must:
19.20(1) notify the debtor's creditors of the cancellation; and
19.21(2) return to the debtor all funds paid by or for the debtor to the debt settlement
19.22provider, except for the origination fee specified in section 332B.09, subdivision 1.
Sec. 23. [332B.08] BOOKS, RECORDS, AND INFORMATION.
19.24 Subdivision 1. Records retention; annual report. Every registrant must keep, and
19.25use in the registrant's business, such books, accounts, and records, including electronic
19.26records, as will enable the commissioner to determine whether the registrant is complying
19.27with this chapter and the rules, orders, and directives adopted by the commissioner under
19.28this chapter. Every registrant must preserve such books, accounts, and records for at least
19.29six years after making the final entry on any transaction recorded therein. Examinations
19.30of the books, records, and method of operations conducted under the supervision of the
19.31commissioner shall be done at the cost of the registrant. The cost must be assessed as
19.32determined under section 46.131.
19.33 Subd. 2. Annual report. On or before March 15 of each calendar year, each
19.34registrant must file a report with the commissioner containing such information as the
20.1commissioner may require about the preceding calendar year. The report must be in a
20.2form the commissioner prescribes.
20.3 Subd. 3. Statements to debtors. (a) Each registrant must:
20.4(1) maintain and make available records and accounts that will enable each debtor to
20.5ascertain the amounts paid to the creditors of the debtor. A statement showing amounts
20.6received from the debtor, disbursements to each creditor, amounts that any creditor has
20.7agreed to as payment in full for any debt owed the creditor by the debtor, charges deducted
20.8by the registrant, and other information as the commissioner may prescribe, must be
20.9furnished by the registrant to the debtor at least monthly and, in addition, upon any
20.10cancellation or termination of the contract;
20.11(2) include in the statement furnished to debtors a list of all activities conducted
20.12pursuant to the contract, including the number and description of communications with
20.13each creditor during the reporting period; and
20.14(3) prepare and retain in the file of each debtor a written analysis of the debtor's
20.15income and expenses to substantiate that the plan of payment is feasible and practicable.
20.16(b) Each debtor must have reasonable access, without cost, by electronic or other
20.17means, to information in the registrant's files applicable to the debtor. These statements,
20.18records, and accounts must otherwise remain confidential, except for duly authorized
20.19state and government officials, the commissioner, the attorney general, the debtor, and
20.20the debtor's representative and designees.
Sec. 24. [332B.09] FEES, PAYMENTS, AND CONSENT OF CREDITORS.
20.22 Subdivision 1. Origination fee. A debt settlement services provider may charge a
20.23nonrefundable origination fee of not more than $50.
20.24 Subd. 2. Service fee. In addition to the origination fee under subdivision 1, a debt
20.25settlement services provider may charge a service fee equal to five percent of the savings
20.26actually negotiated by the debt settlement services provider. No other fees may be charged.
20.27The savings shall be calculated as the difference between the aggregate debt that is stated
20.28in the debt settlement services agreement at the time of its execution and total amount
20.29that the debtor actually pays to settle all the debts stated in the debt settlement services
20.30agreement, provided that only savings resulting from concessions actually negotiated by
20.31the debt settlement services provider may be counted.
20.32 Subd. 3. Collection of fees. No debt settlement services provider may claim,
20.33demand, charge, collect, or receive any compensation until after the debt settlement
20.34service provider has fully performed each and every service the provider has contracted to
20.35perform or represented would be performed or as otherwise provided in this section.
21.1 Subd. 4. Consent of creditors. Before providing any services, a debt settlement
21.2services provider must obtain the written consent of all creditors that agree to participate in
21.3the debt settlement services plan set forth in the debt management services agreement. The
21.4debt settlement services provider must notify the debtor within ten days after any failure to
21.5obtain the required consent of any creditor and of the debtor's right to cancel the agreement
21.6without penalty. If not all creditors listed in the debt settlement services agreement have
21.7consented to participate in the debt settlement services plan, the debt settlement services
21.8provider must obtain the written authorization from the debtor to proceed with the debt
21.9settlement services agreement without the participation of all listed creditors.
21.10 Subd. 5. Withdrawal of creditor. Whenever a creditor withdraws from a debt
21.11settlement services plan, the debt settlement services provider must promptly notify the
21.12debtor of the withdrawal, identify the creditor, and inform the debtor of the right to cancel
21.13the debt settlement services agreement. In no case may this notice be provided more
21.14than 15 days after the debt settlement services provider learns of the creditor's decision
21.15to withdraw from a plan.
21.16 Subd. 6. Timely notification of settlement. A debt settlement services provider
21.17must notify the debtor within 24 hours of settlement of a debt with a creditor.
Sec. 25. [332B.10] PROHIBITIONS.
21.19No debt settlement services provider shall:
21.20(1) engage in any activity, act, or omission prohibited under section 332A.14;
21.21(2) promise, guarantee, or directly or indirectly imply, infer, or in any manner
21.22represent that any debt will be settled prior to the presentation to the debtor of an offer by
21.23the creditors participating in the debt settlement plan to settle;
21.24(3) misrepresent the timing of negotiations with creditors;
21.25(4) imply, infer, or in any manner represent that:
21.26(i) fees, interest, and other charges will not continue to accrue prior to the time
21.27debts are settled;
21.28(ii) wages or bank accounts are not subject to garnishment;
21.29(iii) creditors will not continue to contact the debtor;
21.30(iv) the debtor is not subject to legal action; and
21.31(v) the debtor will not be subject to tax consequences for the portion of any debts
21.33(5) execute a power of attorney or any other agreement, oral or written, express
21.34or implied, that extinguishes or limits the debtor's right at any time to contract or
22.1communicate with any creditor or the creditor's right at any time to communicate with
22.3(6) exercise or attempt to exercise a power of attorney after an individual has
22.4terminated an agreement;
22.5(7) state, imply, infer, or, in any other manner, indicate that entering into a debt
22.6settlement services agreement or settling debts will either have no effect on, or improve,
22.7the debtor's credit, credit rating, and credit score;
22.8(8) challenge a debt without the written consent of the debtor;
22.9(9) make any false or misleading claim regarding a creditor's right to collect a debt;
22.10(10) represent that the debt settlement services provider can negotiate better
22.11settlement terms with a creditor than the debtor alone can negotiate;
22.12(11) provide or offer to provide legal advice or legal services unless the person
22.13providing or offering to provide legal advice is licensed to practice law in the state;
22.14(12) misrepresent that it is authorized or competent to furnish legal advice or
22.15perform legal services; and
22.16(13) settle a debt or lead an individual to believe that a payment to a creditor is in
22.17settlement of a debt to the creditor unless, at the time of settlement, the individual receives
22.18a certification from the creditor that the payment is in full settlement of the debt.
Sec. 26. [332B.11] ADVERTISEMENT OF DEBT SETTLEMENT SERVICES
22.21No debt settlement services provider may engage in any activity proscribed by
22.22section 332A.16, or represent, claim, imply, or infer that secured debts may be settled.
Sec. 27. [332B.12] DEBT SETTLEMENT SERVICES AGREEMENT
22.25Any debtor has the right to rescind any debt settlement services agreement with a
22.26debt settlement services provider that commits a material violation of this chapter. On
22.27rescission, all fees paid to the debt settlement services provider or any other person other
22.28than creditors of the debtor must be returned to the debtor entering into the debt settlement
22.29services agreement within ten days of rescission of the debt settlement services agreement.
Sec. 28. [332B.13] ENFORCEMENT; REMEDIES.
22.31 Subdivision 1. Violation as deceptive practice. A violation of any of the provisions
22.32of this chapter is considered an unfair or deceptive trade practice under section 8.31,
22.33subdivision 1. A private right of action under section 8.31 by an aggrieved debtor is in
22.34the public interest.
23.1 Subd. 2. Private right of action. (a) A debt settlement provider who fails to comply
23.2with any of the provisions of this chapter is liable under this section in an individual
23.3action for the sum of:
23.4(1) actual, incidental, and consequential damages sustained by the debtor as a result
23.5of the failure; and
23.6(2) statutory damages of up to $5,000.
23.7(b) A debt settlement provider who fails to comply with any of the provisions of this
23.8chapter is liable to the named plaintiffs under this section in a class action for the amount
23.9that each named plaintiff could recover under paragraph (a), clause (1), and to the other
23.10class members for such amount as the court may allow.
23.11(c) In determining the amount of statutory damages, the court shall consider, among
23.12other relevant factors:
23.13(1) the frequency, nature, and persistence of noncompliance;
23.14(2) the extent to which the noncompliance was intentional; and
23.15(3) in the case of a class action, the number of debtors adversely affected.
23.16(d) A plaintiff or class successful in a legal or equitable action under this section is
23.17entitled to the costs of the action, plus reasonable attorney fees.
23.18 Subd. 3. Injunctive relief. A debtor may sue a debt settlement services provider
23.19for temporary or permanent injunctive or other appropriate equitable relief to prevent
23.20violations of any provision of this chapter. A court must grant injunctive relief on a
23.21showing that the debt settlement services provider has violated any provision of this
23.22chapter, or in the case of a temporary injunction, on a showing that the debtor is likely to
23.23prevail on allegations that the debt settlement services provider violated any provision
23.24of this chapter.
23.25 Subd. 4. Remedies cumulative. The remedies provided in this section are
23.26cumulative and do not restrict any remedy that is otherwise available. The provisions
23.27of this chapter are not exclusive and are in addition to any other requirements, rights,
23.28remedies, and penalties provided by law.
23.29 Subd. 5. Public enforcement. The attorney general shall enforce this chapter
23.30under section 8.31.
Sec. 29. [332B.14] INVESTIGATIONS.
23.32At any reasonable time, the commissioner may examine the books and records of
23.33every registrant and of any person engaged in the business of providing debt settlement
23.34services. The commissioner, once during any calendar year, may require the submission
23.35of an audit prepared by a certified public accountant of the books and records of each
24.1registrant. If the registrant has, within one year previous to the commissioner's demand,
24.2had an audit prepared for some other purpose, this audit may be submitted to satisfy the
24.3requirement of this section. The commissioner may investigate any complaint concerning
24.4violations of this chapter and may require the attendance and sworn testimony of witnesses
24.5and the production of documents.
Renumber the sections in sequence and correct the internal references
Amend the title accordingly