AB218,41,1510
(e) Unless a person supplies goods, services, or facilities generally and supplies
11them to the provider at a cost no greater than the cost the person generally charges
12to others, a provider may not purchase goods, services, or facilities from the person
13if an employee or a person that the provider should reasonably know is an affiliate
14of the provider owns more than 10 percent of the person or is an employee or affiliate
15of the person.
AB218,41,20
16(28) Notice of litigation. No later than 30 days after a provider has been
17served with notice of a civil action for violation of this section by or on behalf of an
18individual who resides in this state at either the time of an agreement or the time
19the notice is served, the provider shall notify the division in a record that it has been
20sued.
AB218,41,23
21(29) Advertising. A provider that advertises debt-management services shall
22disclose, in an easily comprehensible manner, the information specified in sub. (16)
23(d) 3. and 4.
AB218,42,2
24(30) Liability for the conduct of other persons. If a provider delegates any
25of its duties or obligations under an agreement or this section to another person,
1including an independent contractor, the provider is liable for conduct of the person
2which, if done by the provider, would violate the agreement or this section.
AB218,42,6
3(31) Powers of division. (a) The division may act on its own initiative or in
4response to complaints and may receive complaints, take action to obtain voluntary
5compliance with this section, refer cases to the attorney general, and seek or provide
6remedies as provided in this section.
AB218,42,137
(b) The division may investigate and examine, in this state or elsewhere, by
8subpoena or otherwise, the activities, books, accounts, and records of a person that
9provides or offers to provide debt-management services, or a person to which a
10provider has delegated its obligations under an agreement or this section, to
11determine compliance with this section. Information that identifies individuals who
12have agreements with the provider shall not be disclosed to the public. In connection
13with the investigation, the division may do any of the following:
AB218,42,1514
1. Charge the person the reasonable costs necessarily incurred to conduct the
15examination.
AB218,42,1716
2. Require or permit a person to file a statement, verified under oath or
17affirmation, as to all the facts and circumstances of a matter to be investigated.
AB218,42,2118
3. Seek a court order authorizing seizure from a financial institution at which
19the person maintains a trust account required by sub. (21), any or all money, books,
20records, accounts, and other property of the provider that is in the control of the
21financial institution and relates to individuals who reside in this state.
AB218,42,2322
(c) The division may adopt rules to implement the provisions of this section in
23accordance with subch. II of ch. 227.
AB218,43,224
(d) The division may enter into cooperative arrangements with any other
25federal or state agency having authority over providers and may exchange with any
1of those agencies information about a provider, including information obtained
2during an examination of the provider.
AB218,43,43
(e) The division, by rule, shall establish reasonable fees to be paid by providers
4for the expense of administering this section.
AB218,43,135
(f) The division, by rule, shall adopt dollar amounts instead of those specified
6in subs. (2), (5), (9), (13), (22), (32), and (34) to reflect inflation, as measured by the
7United States bureau of labor statistics consumer price index for all urban
8consumers or, if that index is not available, another index adopted by rule by the
9division. The division shall adopt a base year and adjust the dollar amounts,
10effective on July 1 of each year, if the change in the index from the base year, as of
11December 31 of the preceding year, is at least 10 percent. The dollar amount must
12be rounded to the nearest $100, except that the amounts in sub. (22) must be rounded
13to the nearest dollar.
AB218,43,1514
(g) The division shall notify licensed providers of any change in dollar amounts
15made pursuant to par. (f) and make that information available to the public.
AB218,43,17
16(32) Administrative remedies. (a) The division may enforce this section and
17rules adopted under this section by taking one or more of the following actions:
AB218,43,1918
1. Ordering a provider or a director, employee, or other agent of a provider to
19cease and desist from any violations.
AB218,43,2220
2. Ordering a provider or a person that has caused a violation to correct the
21violation, including making restitution of money or property to a person aggrieved
22by a violation.
AB218,43,2523
3. Subject to adjustment of the dollar amount pursuant to sub. (31) (f),
24recovering in a civil action from a provider or a person that has caused a violation
25a forfeiture not exceeding $10,000 for each violation.
AB218,44,1
14. Prosecuting a civil action to do any of the following:
AB218,44,22
a. Enforce an order.
AB218,44,33
b. Obtain restitution or an injunction or other equitable relief, or both.
AB218,44,44
5. Intervening in an action brought under sub. (34).
AB218,44,85
(b) Subject to adjustment of the dollar amount pursuant to sub. (31) (f), if a
6person violates or knowingly authorizes, directs, or aids in the violation of a final
7order issued under par. (a) 1. or 2., the division may recover in a civil action a
8forfeiture not exceeding $20,000 for each violation.
AB218,44,99
(c) The division may maintain an action to enforce this section.
AB218,44,1210
(d) The division may recover the reasonable costs of enforcing the section under
11pars. (a) to (c), including attorney's fees based on the hours reasonably expended and
12the hourly rates for attorneys of comparable experience in the community.
AB218,44,1713
(e) In determining the amount of a civil penalty to impose under par. (a) or (b),
14a court shall consider the seriousness of the violation, the good faith of the violator,
15any previous violations by the violator, the deleterious effect of the violation on the
16public, the net worth of the violator, and any other factor the court considers relevant
17to the determination of the civil penalty.
AB218,44,19
18(33) Suspension, revocation, or nonrenewal of license. (a) In this subsection,
19"insolvent" means any of the following:
AB218,44,2120
1. Having generally ceased to pay debts in the ordinary course of business other
21than as a result of a good-faith dispute.
AB218,44,2222
2. Being unable to pay debts as they become due.
AB218,44,24233. Being insolvent within the meaning of the federal bankruptcy law,
11 USC
24101 to
1532.
AB218,45,2
1(b) The division may suspend, revoke, or deny renewal of a provider's license
2if any of the following apply:
AB218,45,43
1. A fact or condition exists that, if it had existed when the licensee applied for
4licensure as a provider, would have been a reason for denying licensure.
AB218,45,65
2. The provider has committed a material violation of this section or a rule or
6order of the division under this section.
AB218,45,77
3. The provider is insolvent.
AB218,45,118
4. The provider or an employee, affiliate, or agent of the provider has refused
9to permit the division to make an examination authorized by this section, failed to
10comply with sub. (31) (b) 2. within 15 days after request, or made a material
11misrepresentation or omission in complying with sub. (31) (b) 2.
AB218,45,1312
5. The provider has not responded within a reasonable time and in an
13appropriate manner to communications from the division.
AB218,45,1514
6. The provider fails to pay any fee required under this section or to maintain
15in effect the surety bond required under sub. (13).
AB218,45,1816
(c) In accordance with s. 73.0301, the division shall revoke a license if the
17department of revenue has certified under s. 73.0301 that the licensee is liable for
18delinquent taxes.
AB218,46,219
(d) In accordance with a memorandum of understanding entered into under s.
2049.857, the division shall restrict or suspend a license if the licensee is an individual
21who fails to comply, after appropriate notice, with a subpoena or warrant issued by
22the department of workforce development or a county child support agency under s.
2359.53 (5) and related to paternity or child support proceedings or who is delinquent
24in making court-ordered payments of child or family support, maintenance, birth
1expenses, medical expenses or other expenses related to the support of a child or
2former spouse.
AB218,46,63
(e) If a provider does not comply with sub. (21) (f) or if the division otherwise
4finds that the public health or safety or general welfare requires emergency action,
5the division may order a summary suspension of the provider's license, effective on
6the date specified in the order.
AB218,46,107
(f) If the division suspends, revokes, or denies renewal of the license of a
8provider, the division may seek a court order authorizing seizure of any or all of the
9money in a trust account required by sub. (21), books, records, accounts, and other
10property of the provider which are located in this state.
AB218,46,1211
(g) If the division suspends or revokes a provider's license, the provider may
12appeal and request a hearing pursuant to subch. III of ch. 227.
AB218,46,16
13(34) Private enforcement. (a) If an individual voids an agreement pursuant
14to sub. (24) (b), the individual may recover in a civil action all money paid or deposited
15by or on behalf of the individual pursuant to the agreement, except amounts paid to
16creditors, in addition to the recovery under par. (c) 3. and 4.
AB218,46,2017
(b) If an individual voids an agreement pursuant to sub. (24) (a), the individual
18may recover in a civil action 3 times the total amount of the fees, charges, money, and
19payments made by the individual to the provider, in addition to the recovery under
20par. (c) 4.
AB218,46,2321
(c) Subject to par. (d), an individual with respect to whom a provider violates
22this section may recover all of the following in a civil action from the provider and
23any person that caused the violation:
AB218,46,2524
1. Compensatory damages for injury, including noneconomic injury, caused by
25the violation.
AB218,47,4
12. Except as otherwise provided in par. (d) and subject to adjustment of the
2dollar amount pursuant to sub. (31) (f), with respect to a violation of sub. (16), (18),
3(19), (20), (21), (22), (23), (26), or (27) (a), (b), or (d), the greater of the amount
4recoverable under subd. 1. or $5,000.
AB218,47,55
3. Punitive damages.
AB218,47,66
4. Reasonable attorney's fees and costs.
AB218,47,87
(d) In a class action, except for a violation of sub. (27) (a) 5., the minimum
8damages provided in par. (c) 2. do not apply.
AB218,47,129
(e) In addition to the remedy available under par. (c), if a provider violates an
10individual's rights under sub. (19), the individual may recover in a civil action all
11money paid or deposited by or on behalf of the individual pursuant to the agreement,
12except for amounts paid to creditors.
AB218,47,2013
(f) A provider is not liable under this subsection for a violation of this section
14if the provider proves that the violation was not intentional and resulted from a
15good-faith error notwithstanding the maintenance of procedures reasonably
16adapted to avoid the error. An error of legal judgment with respect to a provider's
17obligations under this section is not a good-faith error. If, in connection with a
18violation, the provider has received more money than authorized by an agreement
19or this section, the defense provided by this paragraph is not available unless the
20provider refunds the excess within 2 business days of learning of the violation.
AB218,47,2221
(g) The division shall assist an individual in enforcing a judgment against the
22surety bond provided under sub. (13).
AB218,47,25
23(35) Violation of unfair or deceptive practices. If an act or practice of a
24provider violates both this section and ch. 100, an individual may not recover under
25both for the same act or practice.
AB218,48,3
1(36) Statute of limitations. (a) An action or proceeding brought pursuant to
2sub. (32) (a), (b), or (c) must be commenced within 4 years after the conduct that is
3the basis of the division's complaint.
AB218,48,54
(b) An action brought pursuant to sub. (34) must be commenced within 2 years
5after the latest of the following:
AB218,48,66
1. The individual's last transmission of money to a provider.
AB218,48,87
2. The individual's last transmission of money to a creditor at the direction of
8the provider.
AB218,48,99
3. The provider's last disbursement to a creditor of the individual.
AB218,48,1010
4. The provider's last accounting to the individual pursuant to sub. (26) (a).
AB218,48,1211
5. The date on which the individual discovered or reasonably should have
12discovered the facts giving rise to the individual's claim.
AB218,48,1413
6. Termination of actions or proceedings by the division with respect to a
14violation of the section.
AB218,48,1915
(c) The period prescribed in par. (b) 5. is tolled during any period during which
16the provider or, if different, the defendant has materially and willfully
17misrepresented information required by this section to be disclosed to the individual,
18if the information so misrepresented is material to the establishment of the liability
19of the defendant under this section.
AB218,48,22
20(37) Uniformity of application and construction. In applying and construing
21this uniform act, consideration must be given to the need to promote uniformity of
22the law with respect to its subject matter among states that enact it.
AB218,49,2
23(38) Relation to Electronic Signatures in Global and National Commerce Act.
24This section modifies, limits, and supersedes the federal Electronic Signatures in
25Global and National Commerce Act (
15 USC 7001 to
7031) but does not modify, limit,
1or supersede
15 USC 7001 (c) or authorize electronic delivery of any of the notices
2described in
15 USC 7003 (b).
AB218, s. 5
3Section
5. 218.02 (9) of the statutes is renumbered 218.02 (39).
AB218, s. 6
4Section
6. 218.02 (10) of the statutes is renumbered 218.02 (40).
AB218, s. 7
5Section
7. 220.02 (2) (b) of the statutes is amended to read:
AB218,49,96
220.02
(2) (b) The lending of money under s. 138.09 or those relating to finance
7companies, motor vehicle dealers,
adjustment service companies debt-management
8service providers, community currency exchanges
, and collection agencies under ch.
9218.
AB218, s. 8
10Section
8. 220.02 (3) of the statutes is amended to read:
AB218,49,2011
220.02
(3) It is the intent of sub. (2) to give the division jurisdiction to enforce
12and carry out all laws relating to banks or banking in this state, including those
13relating to state banks, savings banks, savings and loan associations, and trust
14company banks, and also all laws relating to small loan companies or other loan
15companies or agencies, finance companies, insurance premium finance companies,
16motor vehicle dealers,
adjustment service companies
debt-management service
17providers, community currency exchanges, mortgage bankers, loan originators,
18mortgage brokers, and collection agencies and those relating to sellers of checks
19under ch. 217, whether doing business as corporations, individuals, or otherwise, but
20to exclude laws relating to credit unions.
AB218, s. 9
21Section
9. 422.501 (2) (b) 4. of the statutes is amended to read:
AB218,49,2422
422.501
(2) (b) 4. A person licensed as
an adjustment service company a
23debt-management service provider under s. 218.02 if the person is acting within the
24course and scope of that license.
AB218,50,3
1(1) This act first applies to agreements for the performance of
2debt-management services that are entered into, extended, modified, or renewed on
3the effective date of this subsection.
AB218,50,65
(1) This act takes effect on the first day of the 13th month beginning after
6publication.