218.04(4)(a)(a) Except as provided in par. (am), upon the filing of such application and the payment of such fee, the division shall make an investigation, and if the division finds that the character and general fitness and the financial responsibility of the applicant, and the members thereof if the applicant is a partnership, limited liability company or association, and the officers and directors thereof if the applicant is a corporation, warrant the belief that the business will be operated in compliance with this section the division shall thereupon issue a license to said applicant. Such license is not assignable and shall permit operation under it only at or from the location specified in the license. A nonresident of this state may, upon complying with all other provisions of this section, secure a collection agency license provided the nonresident maintains an active office in this state.
218.04(4)(am) (am) The division may not issue or renew a license under this section if any of the following applies:
218.04(4)(am)1. 1. The applicant fails to provide any information required under sub. (3) (a) 1.
218.04(4)(am)2. 2. The department of revenue certifies under s. 73.0301 that the applicant is liable for delinquent taxes. An applicant for whom a license is not issued or renewed under this subdivision for delinquent taxes is entitled to a notice under s. 73.0301 (2) (b) 1. b. and hearing under s. 73.0301 (5) (a) but is not entitled to any other notice or hearing under this section.
218.04(4)(am)2m. 2m. The department of workforce development certifies under s. 108.227 that the applicant is liable for delinquent unemployment insurance contributions. An applicant for whom a license is not issued or renewed under this subdivision for delinquent unemployment insurance contributions is entitled to a notice under s. 108.227 (2) (b) 1. b. and hearing under s. 108.227 (5) (a) but is not entitled to any other notice or hearing under this section.
218.04(4)(am)3. 3. The applicant fails to comply, after appropriate notice, with a subpoena or warrant issued by the department of children and families or a county child support agency under s. 59.53 (5) and related to paternity or child support proceedings or is delinquent in making court-ordered payments of child or family support, maintenance, birth expenses, medical expenses or other expenses related to the support of a child or former spouse, as provided in a memorandum of understanding entered into under s. 49.857. An applicant whose application is denied under this subdivision for delinquent payments is entitled to a notice and hearing under s. 49.857 but is not entitled to any other notice or hearing under this section.
218.04(4)(b) (b) No licensee shall conduct a collection agency business within any office, room or place of business in which any other business is solicited or engaged in, or in association or conjunction therewith, except as may be authorized in writing by the division upon finding that the character of such other business is such that the granting of such authority would not facilitate evasion of this section or the lawful orders issued thereunder.
218.04(5) (5)Revocation; suspension; reinstatement of licenses.
218.04(5)(a)(a) The division may suspend or revoke any license issued under this section if the division finds that:
218.04(5)(a)1. 1. The licensee has violated any of the provisions of this section or any lawful order of the division made thereunder;
218.04(5)(a)2. 2. Any fact or condition exists which, if it had existed at the time of the original application for such license, would have warranted the division in refusing to issue such license;
218.04(5)(a)3. 3. The licensee has failed to pay the annual license fee or to maintain in effect the bond required under sub. (3) (d);
218.04(5)(a)4. 4. The licensee has failed to remit money due to any and all claimants or forwarders within 30 days from the close of the month during which the collection was effected; or
218.04(5)(a)5. 5. The licensee or any officer or employee of it has violated chs. 421 to 427 and 429.
218.04(5)(am) (am) The division shall restrict or suspend a license issued under this section if the division finds that the licensee is an individual who fails to comply, after appropriate notice, with a subpoena or warrant issued by the department of children and families or a county child support agency under s. 59.53 (5) and related to paternity or child support proceedings or who is delinquent in making court-ordered payments of child or family support, maintenance, birth expenses, medical expenses or other expenses related to the support of a child or former spouse, as provided in a memorandum of understanding entered into under s. 49.857. A licensee whose license is restricted or suspended under this paragraph is entitled to a notice and hearing only as provided in a memorandum of understanding entered into under s. 49.857 and is not entitled to any other notice or hearing under this section.
218.04(5)(ar) (ar) The division shall revoke a license issued under this section if the department of revenue certifies under s. 73.0301 that the licensee is liable for delinquent taxes. A licensee whose license is revoked under this paragraph for delinquent taxes is entitled to a notice under s. 73.0301 (2) (b) 1. b. and a hearing under s. 73.0301 (5) (a) but is not entitled to any other notice or hearing under this section.
218.04(5)(at) (at) The division shall revoke a license issued under this section if the department of workforce development certifies under s. 108.227 that the licensee is liable for delinquent unemployment insurance contributions. A licensee whose license is revoked under this paragraph for delinquent unemployment insurance contributions is entitled to a notice under s. 108.227 (2) (b) 1. b. and a hearing under s. 108.227 (5) (a) but is not entitled to any other notice or hearing under this section.
218.04(5)(b) (b) Except as provided in pars. (am) to (at), no license shall be revoked or suspended except after a hearing under this section. A complaint stating the grounds for suspension or revocation together with a notice of hearing shall be delivered to the licensee at least 5 days in advance of the hearing. In the event the licensee cannot be found, complaint and notice of hearing may be left at the place of business stated in the license and this shall be deemed the equivalent of delivering the notice of hearing and complaint to the licensee.
218.04(5)(c) (c) In the event of the death of a licensee, if the licensee is an individual, or of the partners, if the licensee is a partnership, the license of the agency shall terminate as of the date of death of said licensee, except the division may reinstate a license if the estate of the former licensee signifies to the division within 45 days its intention to continue the business of the agency.
218.04(6) (6)Licenses; posting; changes of location; renewal.
218.04(6)(a)(a) Whenever a collection agency shall contemplate a change of its place of business to another location within the same city or village, it shall give written notice thereof to the division, which shall attach to the license the division's authorization of such removal, specifying the date thereof and the new location. Such authorization shall be authority for the operation of such business under the same license at the specified new location. All collection agency licenses shall be conspicuously posted in the office of the licensee.
218.04(6)(b) (b) Every licensee applying for a renewal of a license shall, on or before the first day of June, pay in advance to the division the annual license fee.
218.04(6)(c) (c) Before discontinuing operating as a collection agency under the provisions of this section, every licensee shall furnish the division with proof in a form to be determined by the division and approved by the advisory committee that:
218.04(6)(c)1. 1. Proper remittance has been made to all claimants or forwarders on money collected.
218.04(6)(c)2. 2. All accounts have been returned to the claimants or forwarders.
218.04(6)(c)3. 3. All valuable papers given to the licensee by the claimant or forwarder in connection with claims have been returned to the claimants or forwarders.
218.04(7) (7)Powers of division; advisory committees. It shall be the duty of the division and the division shall have power, jurisdiction and authority to investigate the conditions and ascertain the facts with reference to the collection of accounts and upon the basis thereof:
218.04(7)(a) (a) To issue any general or special order in execution of or supplementary to this chapter to protect the public from oppressive or deceptive practices of licensees and to prevent evasions of this chapter.
218.04(7)(b) (b) For the purpose of discovering violations of this section the division may cause an investigation to be made of the business of the licensee transacted under the provisions of this section, and shall cause an investigation to be made of convictions reported to the division by any district attorney for violation by a licensee of any of the provisions of this section. The place of business, books of accounts, papers, records, safes and vaults of said licensee shall be open to inspection and examination by the division for the purpose of such investigation and the division shall have authority to examine under oath all persons whose testimony is required relative to said investigation. The cost of the first investigation or examination during any licensing year shall be paid by the licensee, but the cost of additional investigation or examination during such year shall be paid by the licensee only if such examination discloses violation of sub. (5) (a) 4. The division shall determine the cost of an investigation or examination. The licensee shall pay the cost of any hearing including witness fees, unless it be found by the division, board of review or court that licensee has not violated any provision of this section. All said costs shall be paid by the licensee within 30 days after demand therefor by the division. The state may maintain an action for the recovery of such costs and expenses in any court of competent jurisdiction.
218.04(7)(d) (d) To make all necessary or proper orders, rules and regulations for the administration and enforcement of this section.
218.04(8) (8)Hearings and orders. The division shall have the same power to conduct hearings, take testimony and secure evidence as is provided in ss. 217.17, 217.18 and 217.19.
218.04(9g) (9g)Trust accounts.
218.04(9g)(a)(a) In this section, "financial institution" has the meaning given in s. 705.01 (3).
218.04(9g)(b) (b) A licensee shall establish a trust account with a financial institution. The licensee shall notify the division of the name of the financial institution that maintains the trust account. The division may prohibit a licensee from establishing or maintaining a trust account in a financial institution if the division believes that the financial institution is operating in an unsafe or unsound manner.
218.04(9g)(c) (c) Promptly after collection, a licensee shall deposit in the trust account sufficient funds to pay all money due any claimant or forwarder. A licensee may not use the trust account for any other purpose.
218.04(9j) (9j)Consolidation of accounts.
218.04(9j)(a)(a) A licensee may, after receiving authorization from a creditor, consolidate the creditor's account or accounts relating to a particular debtor with those of any other creditor or creditors relating to that debtor and may cause an action to be brought on behalf of the creditor or creditors. All of the following apply to any action caused to be brought by a licensee on behalf of a creditor or creditors under this subsection:
218.04(9j)(a)1. 1. The summons and complaint shall be prepared by an attorney or at the direction of an attorney.
218.04(9j)(a)2. 2. The name or names of the creditor or creditors shall appear in the pleadings and in the caption of the case as the real party or parties in interest and the licensee's name shall not appear in the caption or pleadings.
218.04(9j)(a)3. 3. The creditor or creditors in each instance shall be given the opportunity either to select an attorney to commence the action or to designate, as a part of the authorization process, the collection agency as the agent of the creditor or creditors to retain an attorney and forward the claim or claims to the attorney on behalf of the creditor or creditors.
218.04(9j)(b) (b) In any action caused to be brought by a licensee under this subsection, the licensee shall not appear on behalf of any creditor or creditors before any court, including the clerk of any small claims court in an action on the debt or in garnishment proceedings, except when called as a witness by the plaintiff's attorney in open court.
218.04(9m) (9m)Delinquent collection agencies; division may take possession.
218.04(9m)(a)(a) If the division finds that a licensee is insolvent or that the licensee has collected accounts but has failed to remit money due to any claimant or forwarder within 30 days from the end of the month in which collection was made, and it is necessary to protect the interest of the public or when the license of a collection agency has expired or has terminated for any reason whatsoever, the division may take possession of the assets and the books and records of the licensee for the purpose of liquidating its business, and for such other relief as the nature of the case and the interest of the claimants or forwarders may require. The liquidation of business shall be made by and under the supervision of the division either in the name of the division or in the name of the licensee and the division shall be vested with title to all of the assets including the proceeds of the bond or bonds which have been filed with the division as provided for under sub. (3) (d), and the proceeds of any and all money paid direct to the claimant or forwarder by the debtor prior to the date said license has terminated. Money paid to the licensee or to the division after the termination of the license shall be disposed of by the division with the approval of the circuit court.
218.04(9m)(b) (b) In taking possession of the property and business of any such collection agency, the division shall forthwith give notice to any and all banks or other financial institutions holding or in possession of any bank balances or assets of such agency and thereafter such assets shall be held subject to the order of the division.
218.04(9m)(c) (c) In addition to the authority conferred by par. (b), the division may, with the approval of the circuit court for the county wherein the main office is located, for the purposes of collection or liquidation, sell, assign, convey and transfer or approve the sale, assignment, conveyance and transfer of the assets of such collection agency under such terms and conditions as the division may deem for the best interests of the claimants of such collection agency.
218.04(9m)(d) (d) The provisions of s. 220.08 (3b), (4), (6), (7), (8), (13), (14) and (17) shall apply to this section insofar as they are applicable.
218.04(9m)(e) (e) The division shall cause notice to be given by publication of a class 3 notice, under ch. 985, if no action has been commenced under par. (f), calling on all persons who may have claims against such licensee, to present the same to the division, and make legal proof thereof at a place and within a time, to be therein specified. The division may mail a similar notice to all persons whose names appear as claimants or forwarders upon the books and records of the licensee or as may appear in the records of the division on the sworn reports required to be furnished the division according to the provisions of sub. (10). Any claimant or forwarder whose portion of the collection or collections has not been properly remitted shall file a claim which shall be considered as a preferred claim for the amount actually due the claimant or forwarder after deducting any commission or fee that may be due and owing the licensee. If the division doubts the justice and validity of any claim, the division may reject the same and serve notice of such rejection upon the claimant either by mail or personally. An affidavit of the service of such notice, which shall be prima facie evidence thereof, shall be filed with the division. An action upon a claim so rejected must be brought in the circuit court for the county wherein the licensee is located within 30 days after such service of such notice of rejection of claim has been filed. Claims presented after the expiration of the time fixed in the notice to the claimants or forwarders shall be entitled to receive only liquidating dividends declared after presentation, unless otherwise ordered by the court. The court may fix a date after which all claims shall be barred.
218.04(9m)(f) (f) Whenever any agency, of whose assets and business the division has taken possession, as aforesaid, deems itself aggrieved thereby, it may, at any time within 10 days after such taking possession, apply to the circuit court for the county in which the main office of such agency is located to enjoin further proceedings; and such court, after citing the division to show cause why further proceedings should not be enjoined and hearing the allegations and proofs of the parties and determining the facts, may, upon the merits dismiss such application or enjoin the division from further proceedings, and direct the division to surrender such business and property to such agency.
218.04(9m)(g) (g) Whenever the division shall have paid to each and every claimant or forwarder of such collection agency whose claims as such claimant or forwarder have been duly proved and allowed the full amount of such claims and shall have made proper provisions for unclaimed and unpaid collections and shall have paid all the expenses of the liquidation, the division shall liquidate the remaining assets exclusive of the proceeds of the bond or bonds for the benefit of the general creditors; or if no claims have been filed by or in behalf of the general creditors, the division shall turn over the remaining assets to the circuit court for further disposition.
218.04(9m)(h) (h) All accounts and valuable papers given to the agency by the claimant or forwarder in possession of the division, pertaining to accounts placed with the agency for collection shall be returned to the claimant or forwarded by the division within 30 days after verification of the claim has been made.
218.04(10) (10)Annual report; records.
218.04(10)(a)(a) Each licensee shall annually, on or before the fifteenth day of March, file a report with the division giving such reasonable and relevant information as the division may, by general or special order, require concerning the business and operations conducted by such licensee within the state. Such report shall be made under oath and shall be in the form prescribed by the division.
218.04(10)(b) (b) The division shall require the licensee to keep such books and records in the licensee's place of business as will enable the division to determine whether the provisions of this section are being complied with. Every such licensee shall preserve the records of final entry used in such business for a period of at least 6 years after final remittance is made on any account placed with the licensee for collection or after any account has been returned to the claimant on which one or more payments have been paid.
218.04(11) (11)Subterfuge. The provisions of this chapter shall apply to any licensee or other person who, by any device, subterfuge or pretense whatever, shall make a pretended purchase or a pretended assignment of accounts from any other person for the purpose of evading the provisions of this section.
218.04(12) (12)Penalties. Any person who shall violate any provision of this section shall be guilty of a misdemeanor and, for each and every such offense shall, upon conviction thereof, be punished by a fine of not more than $1,000 or by imprisonment in the county jail for not more than 6 months, or by both such fine and imprisonment.
218.04(13) (13)Enforcement. The division shall have the duty, power, jurisdiction and authority to investigate, ascertain and determine whether this section or the lawful orders issued hereunder are being violated and for such purposes the division shall have all the powers conferred by subs. (4) and (5). The division shall report all violations to the district attorney of the proper county for prosecution.
218.04 Cross-reference Cross-reference: See also ch. DFI-Bkg 74, Wis. adm. code.
218.04 Annotation The requirement under this section that a foreign collection agency maintain a Wisconsin office with records may not violate the commerce clause. 69 Atty. Gen. 113.
subch. IV of ch. 218 SUBCHAPTER IV
COMMUNITY CURRENCY EXCHANGES
218.05 218.05 Community currency exchanges.
218.05(1) (1) Definitions. As used in this section:
218.05(1)(b) (b) "Community currency exchange" means any person, except a bank incorporated under the laws of this state, a federal bank organized pursuant to the laws of the United States, a savings bank organized under ch. 214, a savings and loan association organized under ch. 215 and a credit union organized under ch. 186, engaged in the business of and providing facilities for cashing checks, drafts, money orders and all other evidences of money acceptable to such community currency exchange for a fee, service charge or other consideration. Nothing in this section shall be held to apply to any person engaged in the business of transporting for hire, bullion, currency, securities, negotiable or nonnegotiable documents, jewels or other property of great monetary value nor to any person engaged in the business of selling tangible personal property at retail nor to any person licensed to practice a profession or licensed to engage in any business in this state, who, in the course of such business or profession and, as an incident thereto, cashes checks, drafts, money orders or other evidences of money.
218.05(1)(d) (d) "Division" means the division of banking.
218.05(2) (2)Licenses required. After July 1, 1945, no person, firm, association, partnership or corporation shall engage in the business of a community currency exchange without first securing a license to do so from the division as required by this section.
218.05(3) (3)Licenses; applications; fees; bond.
218.05(3)(a)(a) Application for such license shall be in writing, under oath, on a form to be prescribed by the division. Each application shall contain the following information:
218.05(3)(a)1. 1. The full name and address (both of residence and place of business) of the applicant, and if the applicant is a partnership, limited liability company or association, of every member thereof, and the name and business address if the applicant is a corporation.
218.05(3)(a)2. 2. The county and municipality, with street and number, if any, where the community currency exchange is to be conducted; and
218.05(3)(a)3. 3. Such other information as the division may require.
218.05(3)(am)1. 1. In addition to the information required under par. (a) and except as provided in subd. 3., an application for a license under this section shall include the following:
218.05(3)(am)1.a. a. If the applicant is an individual, the applicant's social security number.
218.05(3)(am)1.b. b. If the applicant is not an individual, the applicant's federal employer identification number.
218.05(3)(am)2. 2. The division may not disclose any information received under subd. 1. to any person except as follows:
218.05(3)(am)2.a. a. The division may disclose information under subd. 1. to the department of revenue for the sole purpose of requesting certifications under s. 73.0301 and to the department of workforce development for the sole purpose of requesting certifications under s. 108.227.
218.05(3)(am)2.b. b. The division may disclose information under subd. 1. a. to the department of children and families in accordance with a memorandum of understanding under s. 49.857.
218.05(3)(am)3. 3. If an applicant who is an individual does not have a social security number, the applicant, as a condition of applying for or applying to renew a license under this section, shall submit a statement made or subscribed under oath or affirmation to the division that the applicant does not have a social security number. The form of the statement shall be prescribed by the department of children and families. Any license issued or renewed in reliance upon a false statement submitted by an applicant under this subdivision is invalid.
218.05(3)(b) (b) An application shall be accompanied by a nonrefundable fee of $300 for the cost of investigating the applicant. If the cost of an investigation exceeds $300, the applicant shall, upon demand of the division, pay the excess cost. At the time of the application, the applicant shall pay an additional $300 as an annual license fee for a period ending on the last day of the current calendar year.
218.05(3)(c) (c) Before any license is issued to a community currency exchange the applicant shall file annually with and have approved by the division a surety bond in the principal sum of $5,000, issued by an insurer authorized to do business in this state. The bond shall run to the state of Wisconsin and shall be for the benefit of any creditors of the community currency exchange for any liability incurred for any sum due to any payee of any check, draft or money order left with the community currency exchange for collection, and also for any penalties that may be imposed under this section. If the division finds at any time the bond is insecure or exhausted or otherwise doubtful, an additional bond in like amount to be approved by the division shall be filed by the licensee within 30 days after written demand by the division.
218.05(4) (4)Licenses; issuance; denial.
218.05(4)(a)(a) The division shall issue to the applicant qualifying under this section a license to operate a community currency exchange at the location specified in the application. The license shall remain in full force and effect until it is surrendered by the licensee or revoked by the division if the division finds after investigation that all of the following conditions are met:
218.05(4)(a)1. 1. The applicant is trustworthy and reputable.
218.05(4)(a)2. 2. The applicant has business experience qualifying the applicant to competently conduct, operate, own, or become associated with a community currency exchange.
218.05(4)(a)3. 3. The applicant has a good business reputation and is worthy of a license.
218.05(4)(b) (b) If the division finds that the conditions under par. (a) 1. to 3. are not met, the division shall not issue the license and shall notify the applicant of the denial, retaining the investigation fee to cover the cost of investigating the applicant. The division shall approve or deny every application within 30 days from the filing thereof. No application shall be denied unless the applicant has had notice of a hearing on the application and an opportunity to be heard thereon. If the application is denied, the division shall, within 20 days thereafter, prepare and keep on file with the division a written order of denial which shall contain the division's findings with respect thereto and the reasons supporting the denial. The division shall mail a copy of the order of denial to the applicant at the address set forth in the application, within 5 days after the filing of the order.
218.05(4)(c) (c) In addition to the grounds for denial of a license under par. (a), the division shall deny an application for a license under this section if any of the following applies:
218.05(4)(c)1. 1. The applicant fails to provide any information required under sub. (3) (am) 1.
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2011-12 Wisconsin Statutes updated through 2013 Wis. Act 380 and all Supreme Court Orders entered before Dec. 13, 2014. Published and certified under s. 35.18. Changes effective after Dec. 13, 2014 are designated by NOTES. (Published 12-13-14)