Requirements for providing debt management

Act 117 of 2008, § 14, under DEBT MANAGEMENT SERVICES ACT - ENACTMENT.

Act 117 of 2008, § 14

Section 14. Requirements for providing debt management

services.

A licensee shall provide debt management services in accordance with the following requirements:

(1) The licensee shall provide each consumer for whom it

provides debt management services with a consumer education

program at no cost to the consumer.

(2) (i) A licensee may only provide debt management

services in accordance with a written debt management

services agreement entered into between the licensee and

the consumer. Before the licensee and consumer enter into

a debt management services agreement, the licensee shall

prepare an analysis of the consumer's financial situation

and a budget for the consumer. The analysis shall include

a good faith determination whether the consumer will

benefit from debt management services and an explanation

of that benefit. If the analysis determines that the

consumer will not benefit from debt management services,

the licensee shall not offer debt management services to

the consumer.

(ii) The licensee may communicate with the consumer

by electronic mail or the Internet, but shall not enter

into a debt management services agreement unless a

certified credit counselor employed by the licensee and

the consumer have orally reviewed the analysis, the

budget and the debt management services agreement through

a person-to-person discussion. The licensee shall provide

copies of the analysis, budget and debt management

services agreement to the consumer.

(3) A debt management services agreement shall be in

writing, signed by the licensee and the consumer, in plain

English and printed in at least 12-point type. It shall

contain at least the following information:

(i) The name, address and telephone number of the

consumer and of the licensee.

(ii) The license number of the licensee.

(iii) A description of the debt management services

to be provided to the consumer.

(iv) A description of the fees that will be charged

to the consumer.

(v) The name and address of the depository

institution where the trust account into which the

consumer's funds, paid to the licensee for disbursement

to the consumer's creditors, is located.

(vi) A list of each of the consumer's creditors that

the licensee in good faith reasonably expects to

participate in the licensee's management of the

consumer's debt, including the amount owed to each

creditor and the schedule of payments to be made to each

creditor.

(vii) A list of each of the consumer's creditors

that the licensee in good faith reasonably expects not to

participate in the licensee's management of the

consumer's debt.

(viii) A schedule of the payments that the consumer

must make to the licensee, including the amount of each

payment, the date it is due and the form in which it must

be made.

(ix) Disclosure of any fees that either the consumer

must make to the licensee or that the licensee will

retain from each of the consumer's payments to the

licensee.

(x) A notice, in bold print, that the consumer's

participation in the debt management services agreement

may negatively impact the consumer's credit rating or

credit score.

(xi) Disclosure that the licensee may receive

compensation from the consumer's creditors for providing

debt management services to the consumer.

(xii) Notice that either party may terminate the

debt management services agreement upon ten days' written

notice to the other party.

(xiii) Notice that if the debt management services

agreement is terminated, the consumer is entitled to a

prompt refund of any payments made that have not yet been

disbursed to the consumer's creditors.

(xiv) An explanation of the way in which disputes

that arise under the debt management services agreement

will be resolved.

(xv) An explanation of applicable privacy laws.

(4) The licensee shall provide each consumer

participating in a debt management services agreement with at

least quarterly statements setting forth the payments

received from the consumer and the disbursements made to the

consumer's creditors.

(5) Within two business days of receiving any payment,

the licensee shall deposit all payments received from

consumers under debt management services agreements into a

trust account established for the benefit of the consumers to

whom the licensee is furnishing debt management services. All

money paid to a licensee by or on behalf of a consumer for

distribution to creditors pursuant to a debt management

services agreement is held in trust. Any interest earned from

money held in trust on behalf of a consumer shall be used for

the benefit of the consumer. The trust account shall be in a

federally insured depository institution and is subject to

the following:

(i) Except as provided in subparagraph (iii), money

held in trust by a licensee is not property of the

licensee or any designee. The money shall not be

available to creditors of the licensee, except for a

consumer from whom or on whose behalf the licensee

received the money, to the extent the money has not been

disbursed to creditors on behalf of the consumer.

(ii) In connection with the trust account, a

licensee shall:

(A) maintain separate records of accounts for

each individual to whom the provider is furnishing

debt management services; and

(B) disburse money paid by or on behalf of the

individual to creditors of the individual as

disclosed in the debt management services agreement,

except that:

(I) The licensee may delay payment to the

extent that a payment by the consumer does not

comply with the terms of the debt management

services agreement because it is not sufficient

to pay designated creditors.

(II) If the debt management services

agreement provides for regular periodic payments

to creditors, the licensee shall make payments to

comply with the due dates established by each

creditor.

(III) The licensee may promptly correct any

payments that are not made or that are

misdirected as a result of an error by the

licensee or any person in control of the trust

account and reimburse the consumer for any costs

or fees imposed by a creditor as a result of the

licensee's failure to pay a creditor in a timely

manner.

(iii) A licensee may commingle money in a trust

account established for the benefit of the consumers who

have a debt management services agreement or debt

settlement services agreement with the licensee and to

whom the licensee is furnishing debt management services

or debt settlement services. In the event a licensee

deposits a consumer's entire payment to the licensee,

including both money for disbursement to creditors and

fees owed to the licensee, the licensee may accept

payment of fees owed to it from the trust. All money in

the trust account established for the benefit of

consumers however, shall be accounted for separately,

including an accounting for fees owed to the licensee. No

other money shall be deposited into the trust account and

the money in the account may only be used for the

purposes expressed in this subparagraph.

(iv) A trust account shall at all times have a cash

balance equal to the total amount held in all consumer

accounts.

(v) The licensee shall reconcile the trust account

at least once a month, which shall include reconciling

the cash balance in the trust account with the sum of the

balances in each consumer account. If the licensee has

more than one trust account, each trust account must be

individually reconciled.

(vi) If a licensee discovers, or has reasonable

suspicion of, embezzlement or other unlawful

appropriation of money held in trust, the licensee shall

immediately notify the department.

(vii) If a consumer terminates a debt management

services agreement with a licensee, the licensee shall

promptly refund to the consumer all money paid by or on

behalf of the consumer which has not been paid to

creditors and interest accrued thereon, less fees that

are payable to the licensee as authorized by this act.

(6) The licensee shall disburse a consumer's funds to

the consumer's creditors in a timely manner based on the

availability of the funds pursuant to the consumer's debt

management services agreement. In the event that a consumer

makes only a partial payment as required by a debt management

services agreement, the licensee shall disburse the available

funds to creditors prior to the licensee collecting its own

fees from the consumer's partial payment. In the event that a

consumer fails to resolve any scheduled payment deficiency

within 45 days of the deficiency occurring, a licensee may

terminate the debt management services agreement in

accordance with the agreement.

(7) The licensee or any business entity in which any

director, owner, officer, employee or principal of the

licensee, or any member of such person's immediate family as

defined in 65 Pa.C.S. § 1102 (relating to definitions), has

an equitable, beneficial or other ownership interest shall

not purchase any debt or obligation of a consumer.

(8) The licensee or any business entity in which any

director, owner, officer, employee or principal of the

licensee, or any member of such person's immediate family as

defined in 65 Pa.C.S. § 1102, has an equitable, beneficial or

other ownership interest shall not lend money or provide

credit to a consumer.

(9) The licensee or any business entity in which any

director, owner, officer, employee or principal of the

licensee, or any member of such person's immediate family as

defined in 65 Pa.C.S. § 1102, has an equitable, beneficial or

other ownership interest shall not offer or provide credit

insurance to a consumer.

(10) The licensee or any business entity in which any

director, owner, officer, employee or principal of the

licensee, or any member of such person's immediate family as

defined in 65 Pa.C.S. § 1102, has an equitable, beneficial or

other ownership interest shall not obtain a mortgage or other

security interest in the property of a consumer.

(11) The licensee shall not operate as a collection

agency or debt collector.

(12) The licensee shall not structure a consumer's debt

management services agreement in a way that results in the

negative amortization of any of the consumer's debts.

(13) The licensee shall not compromise any debt of a

consumer unless the compromise benefits the consumer and the

consumer has approved the proposed compromise in writing.

(14) The licensee shall have written policies describing

its safeguards against conflicts of interest in the

conducting of its business.

(15) The licensee shall not disseminate information,

including by advertising, regarding its debt management

services in any way that is false, misleading or deceptive.

(16) The licensee or any business entity in which any

director, owner, officer, employee or principal of the

licensee, or any member of such person's immediate family as

defined in 65 Pa.C.S. § 1102, has an equitable, beneficial or

other ownership interest, shall not offer, pay or give a

gift, bonus, premium, reward or any other compensation to a

person for referring a consumer to the licensee.

(17) The licensee shall not directly or indirectly

accept, offer, pay, provide, give or receive any gift, bonus,

premium, reward or any other compensation to or from any

person, including, but not limited to, any for-profit parent,

subsidiary or the affiliate of any licensee and any entity

whether or not legally recognized by the Commonwealth for

business purposes that provide debt management services for

referring a consumer to the licensee or to another licensee

or person.

(18) The licensee or any business entity in which any

director, owner, officer, employee or principal of the

licensee, or any member of such person's immediate family as

defined in 65 Pa.C.S. § 1102, has an equitable, beneficial or

other ownership interest, shall not offer or pay an

incentive, including a gift, bonus, premium, reward or any

other compensation to a consumer for executing a debt

management services agreement with the licensee.

(19) A licensee shall not, except as provided in this

section, initiate a transfer to or from an individual's

account at a financial institution or with another person

unless the transfer is one of the following:

(i) a return of money to the individual's account;

or

(ii) before termination of debt management services,

properly authorized by the debt management services

agreement and this section and for either of the

following:

(A) payment to one or more creditors pursuant to

a debt management services agreement; or

(B) payment of a fee permitted by this act and

as part of a debt management services agreement.

(20) The licensee shall not disclose the identity or

identifying information of a consumer or the identity of the

consumer's creditors except as permitted by Federal law.

Disclosure may be made:

(i) to the department;

(ii) to a creditor of the consumer, to the extent

necessary to secure the cooperation of the creditor in

the debt management services agreement; or

(iii) as is necessary to administer the debt

management services agreement.

(21) The licensee that primarily communicates with a

consumer in a language other than English shall provide the

debt management services agreement and any other documents or

disclosures required by this act to the consumer in that

other language.

(22) The licensee shall not delegate any of its duties

or obligations under this act or a debt management services

agreement to any person who is not licensed pursuant to this

act and to whom this act is applicable.

(23) The licensee shall have a toll-free telephone

number that shall be prominently displayed on the licensee's

literature and advertising.

(24) The licensee shall not compensate its employees on

the basis of a formula that incorporates the number of

consumers the employee induces to enter into debt management

services agreements or the amount of debt included in a debt

management services agreement.

(25) A licensee shall maintain a communications system,

staffed at a level that reasonably permits inquiring persons

and clients to individually speak and discuss with counselors

or a customer services representative of the licensee during

regular business hours.