AB587: Bill Text

Under the bill, a lessee has the right to reinstate a terminated rental-purchase agreement, as long as the lessee returned the rental property within seven days after termination and not more than 60 days have passed since the return date or, if the lessee paid at least two-thirds of the total number of rental payments necessary to acquire ownership, not more than 120 days have passed since the return date. A rental-purchase company may require the payment of a $5 reinstatement fee, all past-due rental charges, the rental payment for the next term, and any applicable late fees as a condition of reinstatement. Upon reinstatement, a rental-purchase company must provide a lessee with the same rental property, if available and in the same condition as when it was returned, or with comparable quality rental property.

Default and right to cure

The bill establishes a notice procedure that a rental-purchase company must, with certain exceptions, follow if a lessee defaults under a rental-purchase agreement. The bill defines "default" as either (1) a breach of the rental-purchase agreement that materially impairs the condition, value, or protection of the rental property, or (2) a failure to return rental property within seven days after the expiration of the term for which the last payment was made.

Before giving a lessee a notice of default, a rental-purchase company may first request the lessee to surrender voluntarily the applicable rental property. Before filing an action against a lessee arising out of the lessee's default, a rental-purchase company must give to the lessee a written notice of the default and of the lessee's right, within 15 days after receiving the notice, to cure the default. The notice must specify, among other things, the actions required to cure the default. If the lessee received a similar notice and cured the applicable default at least twice during the year preceding the current default, the bill allows a rental-purchase company to file an action without providing the written notice.

Collection practices

Under the bill, rental-purchase companies are subject to the same prohibitions regarding collection practices that apply to other consumer transactions under the consumer act. As a result, rental-purchase companies are prohibited from doing the following in attempting to recover rental property or collect amounts owed under a rental-purchase agreement:

1. Using or threatening to use force or violence.

2. Disclosing or threatening to disclose false information relating to the creditworthiness of the lessee.

3. Harassing or threatening the lessee or a relative of the lessee.

4. Using obscene language in communicating with the lessee or a relative of the lessee.

5. Using a communication that falsely simulates legal, judicial, or governmental process.

6. Threatening to file an action against the lessee, unless the action is of a type that the rental-purchase company files in the regular course of business or unless the rental-purchase company intends to file the action.

7. Threatening criminal prosecution.

8. With certain exceptions, communicating with the lessee's employer.

9. Engaging in other specified conduct.

Unconscionable conduct

The bill requires the division to promulgate rules that prohibit conduct that the division declares to be unconscionable regarding rental-purchase agreements. In promulgating the rules, the division must consider factors under current law that the division must consider for declaring conduct to be unconscionable in consumer credit transactions. The bill also allows a court to void a provision of a rental-purchase agreement that the court finds to be unconscionable. This authority is similar to a court's authority under current law with respect to consumer credit transactions, except that if a rental-purchase company complies with the bill's limits on cash prices, a court may not find that the price of goods under a rental-purchase agreement is unconscionable.

Penalties and remedies

A rental-purchase company that willfully and knowingly violates the bill's requirements is subject to a fine of not more than $2,000, which is the penalty under current law that applies to willful and knowing violations of the consumer act.

The bill also generally provides that a rental-purchase company that violates the bill's requirements is liable to a lessee damaged as a result of the violation for the amount of actual damages sustained as a result of the violation, including incidental and consequential damages, as well as for the costs of the action and reasonable attorney fees. In addition, the lessee is entitled to recover an amount equal to 25 percent of the total amount of payments necessary to acquire ownership under the rental-purchase agreement. This additional recovery is subject to a $100 minimum and a $1,000 maximum. However, if a rental-purchase company includes a prohibited provision in a rental-purchase agreement, these remedies do not apply. Instead, the rental-purchase company must surrender to the lessee the rental property and any amounts paid under the rental-purchase agreement.

The bill also provides that class actions based on violations of the bill are, with one exception, subject to the same requirements that apply to class actions for violations of the consumer act under current law. The exception is that, for certain willful and knowing violations of the bill's requirements, the total liability of a rental-purchase company is subject to a limit of $500,000 (plus costs and attorney fees), instead of the $100,000 limit (plus costs and attorneys fees) that applies under current law.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB587, s. 1 Section 1. Subchapter XI of chapter 218 [precedes 218.60] of the statutes is created to read:

AB587,7,3 chapter 218

AB587,7,4 Subchapter XI

AB587,7,5 rental-purchase companies

AB587,7,6 218.60 Definitions. In this subchapter:

AB587,7,8 (1) "Division" means the division of banking in the department of financial institutions.

AB587,7,9 (2) "Rental-purchase agreement" has the meaning given in s. 421.301 (37u).

AB587,7,10 (3) "Rental-purchase company" has the meaning given in s. 421.301 (37v).

AB587,7,12 218.61 License required. No person may operate as a rental-purchase company without a valid license issued by the division under this subchapter.

AB587,7,17 218.62 Application for license; fees; bond. (1) Application. (a) An application for a license under this subchapter shall be made to the division, in writing, in the form prescribed by the division. In addition to any other information that may be required by the division, an application for a license under this subchapter shall include all of the following:

AB587,7,18 1. If the applicant is an individual, the applicant's social security number.

AB587,8,2 2. If the applicant is not an individual, the applicant's federal employer identification number.

AB587,8,4 (b) The division may not disclose any information received under par. (a) 1. or 2. to any person except as follows:

AB587,8,6 1. The division may disclose the information to the department of revenue for the sole purpose of requesting certifications under s. 73.0301.

AB587,8,9 2. The division may disclose the information to the department of workforce development in accordance with a memorandum of understanding entered into under s. 49.857.

AB587,8,12 (2) Application fees. At the time of applying to the division for a license under this subchapter, the applicant shall pay any applicable fee specified by the division by rule.

AB587,8,15 (3) Bond. The division may require an applicant or licensee to file with the division and maintain in force a bond, in a form prescribed by and acceptable to the division, and in an amount determined by the division.

AB587,8,24 218.63 Issuance or denial of license. (1) Investigation. Upon the filing of an application under s. 218.62 (1) and the payment of any applicable fee, the division shall perform an investigation. Except as provided in sub. (3), if the division finds that the character, general fitness, and financial responsibility of the applicant; the members of the applicant, if the applicant is a partnership, limited liability company, or association; and the officers and directors of the applicant, if the applicant is a corporation warrant the belief that the business will be operated in compliance with any provision of chs. 421 to 427 relating to rental-purchase agreements, the division shall issue a license to the applicant.

AB587,9,6 (2) Denial; notice; hearing. Except as provided in sub. (3), the division may deny an application made under s. 218.62 (1) by providing written notice to the applicant stating the grounds for the denial. Except as provided in sub. (3), a person whose application is denied may request a hearing under s. 227.44 within 30 days after the date of denial. The division may appoint a hearing examiner under s. 227.46 to conduct the hearing.

AB587,9,8 (3) Denial; child or family support or tax delinquency. The division may not issue a license under this chapter if any of the following applies:

AB587,9,10 (a) The applicant fails to provide the information required under s. 218.62 (1) (a).

AB587,9,15 (b) 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 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.

AB587,9,25 (c) The applicant fails to comply, after appropriate notice, with a subpoena or warrant issued by the department of workforce development 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 paragraph 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.

AB587,10,4 218.64 Licenses; other business. (1) Licensed locations. A license issued under this subchapter shall specify the location at which the licensee is permitted to conduct business. A separate license shall be required for each place of business maintained by the licensee.

AB587,10,5 (2) Assignment. A license issued under this subchapter is not assignable.

AB587,10,7 (3) Posting. A licensee shall post its license in a conspicuous place at the location specified in the license.

AB587,10,12 (4) Term of license; fee. Every license shall remain in force until suspended or revoked in accordance with this subchapter or surrendered by the licensee. Every licensee shall, on or before June 1 of each year, pay to the division an annual license fee specified by the division by rule and, if required by the division, provide a rider or endorsement to increase the amount of any bond required under s. 218.62 (3).

AB587,10,17 (5) Other business prohibited. No licensee may conduct business as a rental-purchase company within any office, room, or place of business in which any other business is solicited or engaged in, unless the licensee is authorized to do so, in writing, by the division. For the purpose of this subsection, the division may not unreasonably withhold any such authorization.

AB587,10,21 218.65 Revocation, suspension, and restriction of license. (1) Discretionary suspension or revocation. The division may issue an order suspending or revoking a license issued under this subchapter if the division finds that any of the following applies:

AB587,10,24 (a) The licensee has violated any provision of chs. 421 to 427 relating to rental-purchase agreements, any rules promulgated under any such provision, or any lawful order of the division under s. 218.68 (1).

AB587,11,3 (b) A fact or condition exists that, if it had existed at the time of the original application for the license, would have warranted the division's refusing to issue the license.

AB587,11,5 (c) The licensee has made a material misstatement in an application for a license or in any information furnished to the division.

AB587,11,7 (d) The licensee has failed to pay the annual license fee required under s. 218.64 (4) or has failed to maintain in effect any bond required under s. 218.62 (3).

AB587,11,10 (e) The licensee has failed to provide any additional information, data, or records required by the division, within the time period prescribed under s. 218.66 (2).

AB587,11,13 (f) The licensee has failed to pay any penalties due under s. 425.312, 425.401, or 426.301 within 30 days after receiving notice, by certified mail, that the penalties are due.

AB587,11,25 (2) Mandatory restriction or suspension; child or family support. The division shall restrict or suspend a license issued under this subchapter 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 workforce development 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 subsection 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.

AB587,12,6 (3) Mandatory revocation; delinquent taxes. The division shall revoke a license issued under this subchapter 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 subsection 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.

AB587,12,14 (4) Revocation and suspension procedure. Except as provided in subs. (2) and (3), no license shall be revoked or suspended except after a hearing under this subchapter. 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, the complaint and notice of hearing may be left at the place of business stated in the license and this shall be considered the equivalent of delivering the notice of hearing and complaint to the licensee.

AB587,12,22 218.66 Modification of license. (1) Change in place of business. No licensee may change its place of business to another location without the prior approval of the division, which approval shall not be unreasonably withheld. A licensee shall provide the division with at least 15 days' prior written notice of a proposed change under this section and shall pay any applicable fees specified by the division by rule. Upon approval by the division of the new location, the division shall issue an amended license, specifying the date on which the amended license is issued and the new location.

AB587,13,7 (2) Other changes. Except as provided in sub. (1), a licensee shall notify the division of any material change to the information provided in the licensee's original application for a license under this subchapter or provided in a previous notice of change filed by the licensee with the division under this subsection. A licensee shall provide the notice required under this subsection within 10 days after the change. The licensee shall provide any additional information, data, and records about the change to the division within 20 days after the division requests the information, data, or records. The division shall determine the cost of investigating and processing the change. The licensee shall pay the division's cost within 30 days after the division demands payment.

AB587,13,11 (3) Division approval of other changes. Any change that is subject to the notice requirement under sub. (2) is subject to the approval of the division. In reviewing the change, the division shall apply the same criteria as the criteria for approval of an original license application.

AB587,13,16 218.67 Annual report; records. (1) Annual report. On or before March 31 of each year, a licensee shall file a report with the division giving such reasonable and relevant information as the division may require concerning the business and operations conducted by the licensee. The licensee shall make the report in the form prescribed by the division.

AB587,13,21 (2) Books and records. A licensee shall keep such books and records in the licensed location as, in the opinion of the division, will enable the division to enforce any provision of chs. 421 to 427 relating to rental-purchase agreements. Every licensee shall preserve its records of a rental-purchase agreement for at least 2 years after making any final entry with respect to the rental-purchase agreement.

AB587,13,25 218.68 Powers and duties of division; administration. (1) Orders. The division may issue any general order or special order in execution of or supplementary to any provision in chs. 421 to 427 relating to rental-purchase agreements, but any such order may not conflict with any such provision.

AB587,14,15 (2) Investigations and examinations. For the purpose of discovering violations of any provision in chs. 421 to 427 relating to rental-purchase agreements, the division may investigate or examine the business of a licensee transacted under any provision of chs. 421 to 427 relating to rental-purchase agreements. The place of business, books of accounts, papers, records, safes, and vaults of the licensee shall be open to the division for the purpose of an investigation or examination, and the division has authority to examine under oath all persons whose testimony is required for an investigation or examination. The division shall determine the cost of an investigation or examination. The licensee shall pay the cost of an investigation or examination. The licensee shall pay the cost of any hearing held for the purpose of this subsection, including witness fees, unless the division or a court finds that the licensee has not violated any provision of chs. 421 to 427 relating to rental-purchase agreements. The licensee shall pay all costs owing under this subsection within 30 days after the division demands payment. The state may maintain an action for the recovery of any costs owing under this subsection.

AB587,14,19 (3) Verified complaint; mandatory investigation. If 5 or more persons file a verified complaint with the division alleging that a rental-purchase company has engaged in an act that is subject to action by the division, the division shall immediately commence an investigation pursuant to sub. (2).

AB587,14,21 (4) Rules. The division may promulgate rules for the administration of any provision in this subchapter relating to rental-purchase agreements.

AB587,14,24 (5) Testimonial powers and powers to secure evidence. The division has the same power to conduct hearings, take testimony, and secure evidence as is provided to the division in ss. 217.17 and 217.18.

AB587,15,5 (6) Enforcement. The division may investigate any provision in chs. 421 to 427 relating to rental-purchase agreements or any lawful orders issued under sub. (1) to determine if any such provision or lawful order is being violated. The division may report any such violations to the attorney general or the district attorney of the proper county for prosecution.

AB587, s. 2 Section 2. 220.02 (2) (b) of the statutes is amended to read:

AB587,15,10 220.02 (2) (b) The lending of money under s. 138.09 or those relating to finance companies, motor vehicle dealers, adjustment service companies, community currency exchanges, rental-purchase companies, and collection agencies under ch. 218.

AB587, s. 3 Section 3. 220.02 (3) of the statutes is amended to read:

AB587,15,20 220.02 (3) It is the intent of sub. (2) to give the division jurisdiction to enforce and carry out all laws relating to banks or banking in this state, including those relating to state banks, savings banks, savings and loan associations, and trust company banks, and also all laws relating to small loan companies or other loan companies or agencies, finance companies, motor vehicle dealers, adjustment service companies, community currency exchanges, rental-purchase companies, and collection agencies and those relating to sellers of checks under ch. 217, whether doing business as corporations, individuals, or otherwise, but to exclude laws relating to credit unions.

AB587, s. 4 Section 4. 409.109 (4) (n) of the statutes is created to read:

AB587,15,23 409.109 (4) (n) The transfer of an interest under a rental-purchase agreement, as defined in s. 421.301 (37u).

AB587, s. 5 Section 5. 421.301 (7) (intro.) of the statutes is amended to read:

AB587,16,3 421.301 (7) (intro.) "Cash price" means in chs. 421 to 427, other than subch. VI of ch. 422, the price at which property or services are offered, in the ordinary course of business, for sale for cash, and may include:

AB587, s. 6 Section 6. 421.301 (9) of the statutes is amended to read:

AB587,16,14 421.301 (9) "Consumer credit sale" means a sale of goods, services or an interest in land to a customer on credit where the debt is payable in installments or a finance charge is imposed and includes any agreement in the form of a bailment of goods or lease of goods or real property if the bailee or lessee pays or agrees to pay as compensation for use a sum substantially equivalent to or in excess of the aggregate value of the goods or real property involved and it is agreed that the bailee or lessee will become, or for no other or a nominal consideration has the option to become, the owner of the goods or real property upon full compliance with the terms of the agreement. "Consumer credit sale" does not include a rental-purchase agreement.

AB587, s. 7 Section 7. 421.301 (10) of the statutes is amended to read:

AB587,16,23 421.301 (10) "Consumer credit transaction" means a consumer transaction between a merchant and a customer in which real or personal property, services or money is acquired on credit and the customer's obligation is payable in installments or for which credit a finance charge is or may be imposed, whether such transaction is pursuant to an open-end credit plan or is a transaction involving other than open-end credit. The term includes consumer credit sales, consumer loans, consumer leases and transactions pursuant to open-end credit plans. "Consumer credit transaction" does not include a rental-purchase agreement.

AB587, s. 8 Section 8. 421.301 (11) of the statutes is amended to read:

AB587,17,3 421.301 (11) "Consumer lease" means a lease of goods which a merchant makes to a customer for a term exceeding 4 months, but does not include a rental-purchase agreement.

AB587, s. 9 Section 9. 421.301 (12) of the statutes is amended to read: