South Carolina General Assembly
117th Session, 2007-2008

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Bill 4612

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Indicates New Matter

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Be it enacted by the General Assembly of the State of South Carolina:

SECTION    1.    This chapter may be cited as the "Debt Collection Licensing Act".

SECTION    2.    Title 37 of the 1976 Code is amended by adding:


Debt Collection Licensing

Part 1

General Provisions

Section 37-12-100.    As used in this chapter:

(1)    'Advertise' means the submission of bids, contracting, or making known by any public notice or solicitation of business, directly or indirectly, that services regulated under this chapter are available for consideration.

(2)    'Applicant' means a person seeking licensure or the renewal of a license under this     chapter.

(3)    'Branch office' means an additional location where a licensee actively conducts     business authorized by the license and advertises that he engages in the business authorized by the license.

(4)    'Collection agency' means a:

(a)    person who regularly collects or attempts to collect a debt owed or asserted to be owed another;

(b)    person who furnishes a collection system carrying a name that simulates the name of a debt collector and who supplies forms for use by a creditor even though the forms direct the debtor to make payments directly to the creditor;

(c)    creditor who, in the process of collecting a debt owed to the creditor, uses a name other than the creditor's own to indicate a third person is collecting or attempting to collect the debt;

(d)    person regularly engaged in the enforcement of security interests securing debts; or

(e)    person who regularly collects or attempts to collect, directly or indirectly, a debt owed for the person's own account if the indebtedness was acquired from another person and if the indebtedness was either delinquent or in default at the time it was acquired.

(5)    The business of debt collection is conducted in this State if a collection agency, its employees, or its agents are located in this State or attempt to collect a debt from a consumer located in this State.

(6)    Collection agency does not mean a person:

(a)    engaged in soliciting claims for collection or collecting, or attempting to collect, claims on behalf of a licensee under this chapter if employed by a collection agency;

(b)    collecting, or attempting to collect, claims for one employer if all the collection efforts are carried on in the employer's name and if the individual is employed by the employer;

(c)    conducting collection activities in his true name and that are confined and directly related to the operation of a business other than a collection agency, including trust companies, savings and loan associations, building and loan associations, insurance companies, credit unions, loan or finance companies, mortgage banks, public officers acting in their official capacities, persons acting under court order, lawyers, abstract companies conducting an escrow business, real estate brokers, associations of apartment owners, homeowners' associations, or property management companies collecting assessments, charges, or fines on behalf of condominium unit owners associations;

(d)    acting on behalf of another only by preparing or mailing periodic billing statements;

(e)    acting as a debt collector for another person with whom the debt collector is related by common ownership or corporate control, if the debt collector does so only for a person to whom the debt collector is so related or affiliated and if the principal business of the person is not debt collection;

(f)    acting as a credit counseling organization, licensed pursuant to Title 37 and at the request of consumers, performs bona fide consumer credit counseling and assists consumers in the liquidation of the consumers' debts by receiving or taking control of a consumer's funds for distribution to the consumer's creditors; or

(g) acting as an attorney at law, licensed to practice in this State who has a meaningful involvement in the regular collection of or attempted collection of debts in this State or from a consumer located in this State.

(7)    'Communication' means conveying information regarding a debt to another person.

(8)    'Consumer' means:

(a)    a natural person obligated or allegedly obligated to pay a debt incurred primarily for a personal, family, or household purpose;

(b)    a consumer as defined in Section 37-1-301(10);

(c)    a consumer's spouse, guardian, executor, or administrator; and

(d)    the parent of a minor where the consumer is a minor.

(9)    'Conviction' means an adjudication of guilt by a court resulting from a trial or plea.

(10)    'Creditor' means a creditor as defined in Section 37-1-301(13).

(11)    'Debt' means an obligation of a consumer to pay money arising out of a transaction primarily for personal, family, or household purposes.

(12)    'Debt collector' means a debt collector as defined in Section 37-1-301(28).

(13)    'Department' means the South Carolina Department of Consumer Affairs.

(14)    'Licensee' means a person licensed under this chapter.

(15)    'Person' means a person as defined in Section 37-1-301(20).

(16)    'Principal place of business' means the primary executive office of a business entity.

(17)    'Revocation' means to withdraw or terminate a license to act as a collection agency or to prohibit the renewal of the license on a permanent or temporary basis.

(18)    'Suspension' means to withdraw or terminate a license of a collection agency for less than one year.

(19)    'Verification' means to provide information to a consumer in response to the consumer's dispute or request. The response must be transmitted in a manner accessible to the consumer and capable of being maintained by the consumer.

Section 37-12-105.    Notwithstanding other provisions in this chapter, the department may, upon finding that the licensee has engaged intentionally or repeatedly in a course of conduct in violation of this chapter, increase the required bond.

Section 37-12-110.    The department has the powers and duties granted to the Administrator in Part 1 of Chapter 6 to administer and enforce the provisions of this chapter and may promulgate regulations necessary to effectuate the purposes of this chapter.

Section 37-12-115.    The department may use a fee collected under this chapter to administer the provisions of this chapter.

Section 37-12-120.    An investigation conducted by the department pursuant to this chapter is exempt from disclosure under the South Carolina Freedom of Information Act, Chapter 4, Title 30 until:

(1)    the department concludes its investigation and makes a determination about the existence of probable cause;

(2)    the case is closed prior to the department's determination about the existence of probable cause; and

(3)    the subject of the investigation waives his privilege of confidentiality.

Section 37-12-125.    Within thirty days after the final decision of the department, an aggrieved party may file a request for a contested case hearing in accordance with the Administrative Procedures Act and the rules and procedures of the Administrative Law Court.

Part 2

Debt Collection

Section 37-12-200.    (A)    A person may not engage in collection agency activities without a license issued by the department pursuant to this chapter. A person seeking a written opinion from the department regarding the applicability of this chapter to its business operations must submit a request in writing accompanied by a nonrefundable fee of twenty-five dollars.

(B)    A person acting as a collection agency on the effective date of this chapter may continue to engage in the business without a license until the department has acted upon the application for a license if the person files an application within sixty days of the effective date of this chapter.

(C)    A person acting as a collection agency without a license as provided by this chapter is guilty of a misdemeanor.

Section 37-12-205.    (A)    A person seeking to obtain a license must apply to the department on forms prescribed by the department. An application must be made in writing, under oath, and include:

(1)    the name and address of each owner, partner, member, officer, and director of the applicant;

(2)    a description of the ownership interest of each owner, partner, member, officer, director, and employee;

(3)    an audited financial statement for the applicant from the preceding fiscal year;

(4)    a surety bond as required in Section 37-12-220;

(5)    written consent to a criminal records check, which must be requested by each owner, partner, member, officer, and director of the applicant from the state police in the place of the applicant's residence. The criminal records check must be provided to the department directly from the state police, unless otherwise prohibited;

(6)    the proposed name under which the licensee intends to operate;

(7)    the street address, mailing address, and telephone numbers of the principal location at which the business is to be conducted;

(8)    the street address, mailing address, and telephone numbers of all branch offices; and

(9)    a personal composite credit report that is less than ninety days old for each owner, partner, member, officer, and director.

(B)    An application must be accompanied by a nonrefundable investigation fee of one hundred dollars, a nonrefundable annual license fee of five hundred dollars, and a nonrefundable branch license fee of two hundred fifty dollars for each location where collection activities concerning South Carolina consumers occur. An applicant must also bear the cost of obtaining the criminal records check.

(C)    Upon the filing of a complete application for a license and payment of required fees, the department shall determine if licensure requirements are satisfied. If the department finds that the financial responsibility and condition, character, qualifications, and general fitness of the applicant, and of the members if the applicant is a co-partnership, association, or limited liability company and of the officers and directors if the applicant is a corporation, are such as to command the confidence of the community and to warrant belief that the business may be operated honestly, fairly, and in accordance with all applicable state and federal laws, the department must issue the applicant a license. Otherwise, the department shall deny an application for licensure and notify the applicant of the denial.

(D)    The department shall reject an application not sufficient in form or substance and provide written notification to an applicant explaining the reasons for its refusal. The refusal must be without prejudice to the filing of a new application.

(E)    The department's evaluation of an application must consider the criminal record of an individual applicant or partner, officer, director, or member of an applicant. The department shall not grant a license to an attorney who is not in good standing with a state bar or who is unlicensed.

Section 37-12-210.    (A)    A license remains valid for one year and expires on the thirty-first of May or at such other times as the administrator designates. An application must be submitted no later than thirty days prior to the expiration date and must be accompanied by a nonrefundable annual license fee of five hundred dollars for a licensee's principal place of business and a nonrefundable branch office fee of two hundred fifty dollars for each location where collection activities concerning South Carolina consumers occur. The department shall assess a delinquency fee of one hundred dollars if a license is not renewed within thirty days following the renewal date.

(B)    A license must plainly state the name and business address of the licensee. A licensee shall post the license in a conspicuous place in the office where the business is transacted. In the event of the loss or destruction of a license, a licensee may obtain a duplicate license from the department by filing an affidavit explaining its loss or destruction and paying a fee of twenty dollars. A duplicate license must bear the date and number of the license it replaced.

(C)    The department may refuse to issue or renew a license or may revoke or suspend a license if:

(1)    an applicant or licensee is not authorized to do business in this State;

(2)    an applicant owner, partner, member, officer, or director has not reached the age of eighteen;

(3)    an applicant owner, partner, member, officer, or director of an applicant or licensee:

(a)    knowingly makes a false statement of a material fact in the application or renewal application;

(b)    has a license to conduct a collection agency denied, not renewed, suspended, or revoked for a reason other than the nonpayment of a licensing fee or failure to meet a bonding requirement;

(c)    has a conviction for a felony, crime of moral turpitude, or crime of dishonesty within the past ten years;

(d)    has a judgment entered against him in a civil action involving forgery, embezzlement, obtaining money under false pretenses, larceny, extortion, fraud, or conspiracy to commit fraud within the past ten years;

(e)    fails to pay or satisfy a judgment debt or penalty imposed by a court; or

(f)    violates a provision of this chapter or a reasonable rule or regulation made by the department pursuant to this chapter.

Section 37-12-215.    (A)    A licensee must complete twenty-four hours of continuing professional education each year and must earn twelve of the twenty-four hours in a live instructional setting. The continuing education requirements must be met by:

(1)    the owner of a sole proprietorship that holds a license;

(2)    all partners in a partnership that holds a license; and

(3)    a person with a twenty-five percent or greater ownership interest in a limited liability company or a corporation that holds a license and actively participates in the organization's management.

(B)    A licensee must report the continuing professional education he completes to the department annually on a form approved by the department. The form must indicate the date, title, instructor, sponsor, and credit hours claimed for coursework completed. A course taught in a live classroom setting may provide one hour of continuing professional education credit for every fifty minutes of classroom instruction. A course sponsor shall maintain attendance records for two years following the date on which it provided the course.

(C)    A licensee shall maintain documentation of coursework that an owner, partner, member or officer of the licensee completed to satisfy the requirements of this section for a period of two years from the date on which the owner, partner, member or officer completed the coursework. The documentation must consist of certification by the teacher or sponsor of the course indicating the recommended number of credit hours awarded. The department may inspect this documentation during the period the documentation is maintained by the licensee.

(D)    The department shall:

(1)    offer continuing professional education courses to assist licensees in satisfying the requirements of this chapter; and

(2)    appoint a panel comprised of one representative of the department and two licensed members of the collection agency industry to approve courses offered by     sponsors other than the department. The panel may conduct its meetings by way of a conference call. The     department shall develop a questionnaire to ascertain the interest and background of potential members of this panel.

(E)    The department immediately shall suspend the license of a licensee who fails to complete his continuing professional education in a timely manner and must not renew the license until the licensee demonstrates compliance with the continuing professional education requirements and, if more than thirty days have lapsed since the license expired, pays a penalty of no more than one hundred dollars. If more than sixty days have lapsed since the license expired, the collection agency must apply under Section 37-12-205.

(F)    A licensee may request an administrative hearing to appeal the suspension of his license for failure to satisfy continuing professional education requirements.

Section 37-12-220.    (A)    A collection agency shall file a surety bond with the department before conducting business. The bond must be:

(1)    executed for the following amounts based on the total value of South Carolina accounts in possession of the licensee in the previous year:

Annual South Carolina Accounts                    Amount of Bond

$0 - 99,999                                                                $15,000

$100,000 - $250,000                                                $30,000

$250,001 - $500,000                                                $45,000

$500,001 - $1,000,000                                            $60,000

More than $1,000,000                                            $150,000

(2)    approved by the department;

(3)    executed by a surety company authorized by the laws of this State to transact business within this State;

(4)    executed to this State;

(5)    used of the State and a consumer with a cause of action against the collection agency;

(6)    maintained for three years after revocation, denial, or failure to renew the agency's license; and

(7)    continued in form and remain in full force and effect concurrently with the license unless terminated or canceled by action of the surety as provided in subsection (B).

(B)    Upon learning that a surety company intends to withdraw as surety of a licensee, the department shall notify the licensee of the surety company's intention. The department shall provide the licensee with this notice within forty-five days of receipt of notice from the surety company. A licensee's license becomes void upon the termination of the bond by the surety company unless, prior to termination, the licensee files a new bond with the department.

Section 37-12-225.    (A)    Within ten business days after the occurrence of one of the following events, a licensee shall file a written report with the department describing the event and its expected impact on the licensee's business:

(1)    a filing of bankruptcy, reorganization, or receivership proceedings by or against     the licensee;

(2)    an institution of a revocation, suspension, or other proceeding against the licensee by a governmental authority that is related to the licensee's collection activities;

(3)    a felony indictment or conviction of a licensee or its owner, partner, member, officer, director, trustee, beneficiary, or principal;

(4)    an opening of a new branch office;

(5)    a transfer, issuance, cancellation, or redemption of stock voting rights or membership amounting to ten percent or more of the total voting stock or memberships outstanding; or

(6)    other events the department may prescribe by regulation.

(B)    A licensee shall provide written notice to the department within thirty days of obtaining a court approved settlement or entry by a court of a judgment in a civil action relating to a collection agency activity.

(C)    The department may require a licensee who fails to comply with this section to pay a late penalty of fifty dollars for each day a report is overdue.

(D)    A licensee shall, within ten days of changing the street address or business name stated in his license, deliver the license to the department, provide written notice of the change, and submit a duplicate license fee of twenty dollars to the department. The department shall enter the change or changes in its records, retain and file the surrendered license, and issue a duplicate license with the new information and the date and number of the surrendered license. The department shall suspend a license on the tenth day following the expiration of the time prescribed in this section if the license has not been delivered to the department.

(E)    A licensee shall file a new application under this section upon a change of:

(1)    twenty-five percent or more in the ownership or management of a limited liability company or corporation holding a license; or

(2)    the composition of a partnership holding a license.

(F)    A licensee shall report annually to the department a summary of collection activities conducted by the licensee during the previous year. The report must be:

(1)    filed with the department before April 15;

(2)    made on a form provided by the department; and

(3)    made under oath.

Section 37-12-230.    (A)    A licensee shall:

(1)    maintain in his office complete and accurate books, accounts, and records for the department to determine if the licensee is complying with the provisions of this chapter;

(2)    maintain books, accounts, and records from other businesses in which the organization is involved separate from those required in item (1); and

(3)    retain its books, accounts, and records for three years at its principal place of business or another appropriate location if a licensee's license is terminated, canceled, or revoked.

(B)    A licensee shall maintain records containing all consumer information including an account allegedly owed by the consumer, payments made on the account, charges made to the account, and relevant correspondence.

(C)    A licensee shall retain a record of each employee's first name, last name, and no more than one alias that must consist of a first and last name. An employee may not use the alias of another employee. A licensee must retain these records for three years after the termination of an employee.

Section 37-12-235.    (A)    The department may enforce the provisions of this chapter and investigate a suspected violation.

(B)    The department's investigation may require a licensed person, unlicensed person, or an applicant to:

(1)    respond to questions concerning activities regulated under this chapter; and

(2)    provide relevant records, which must be made available to the department within three business days of a request unless the department grants an extension. The department may inspect records on site. A licensee shall pay reasonable and necessary expenses for the department to examine records located outside of this State.

(C)    The department may investigate a person who advertises that he performs a service requiring a license or when a licensee engages in an activity prohibited by this chapter. The department may seek an injunction of such an activity or take other appropriate action pursuant to this chapter.

Section 37-12-240.    A licensee is subject to the provisions of Section 37-5-108.

Section 37-12-245.    (A)    A collection agency may not:

(1)    violate a provision of this chapter;

(2)    fail to report to the department a violation of this chapter;

(3)    commit fraud or make a wilful misrepresentation in its application;

(4)    transfer or attempt to transfer a license except as     permitted in Section 37-12-225;

(5)    fail or refuse to cooperate with an investigation by the department pursuant to this chapter;

(6)    report solely in its own name credit or debt information to a consumer-reporting agency;

(7)    share or have a common waiting room with a practicing attorney or lending institution;

(8)    operate from a private residence unless the area in which it conducts business is used solely for business purposes, has an outside entrance, and is isolated from the remainder of the residence;

(9)    contact a consumer in an attempt to collect an alleged debt unless the agency, prior to contacting the consumer, has a reasonable belief that the consumer contacted is the alleged debtor.

Section 37-12-250.    A licensee must provide written notice to a consumer and the consumer's creditor when the consumer satisfies his debt. The notice must be provided within twenty days of the satisfaction and must include:

(1)    the names of the original creditor and the current creditor, if different;

(2)    the amount of the original debt;

(3)    the amount satisfied; and

(4)    a statement that the debt is satisfied.

Section 37-12-255.    A licensee whose license has been terminated shall return all documents the licensee possesses that are related to a collection request to the person who made the request. The documents must be returned within five days of the license's termination unless the licensee requests an extension from the department in writing and the department grants an extension. The department must consider all agreements between the collection agency and creditor or forwarder canceled from the date that a permit terminates. A licensee shall promptly notify a third party that possesses an account placed for collection with the licensee that the third party must correspond and be solely responsible to the creditor that placed the account with the agency for collection unless the creditor authorizes a successor to collect the account. A licensee that dissolves must return an account within sixty days of the dissolution.

Section 37-12-260.    (A)    A licensee shall send a consumer written notice within five days of an initial communication with a consumer regarding the collection of a debt. The written notification must include:

(1)    the amount of the debt;

(2)    the name of the creditor to whom the debt is owed;

(3)    the name of the original creditor;

(4)    a statement informing the consumer that:

(a)    the consumer must dispute the validity of the debt, or any part of the debt, within thirty days of receiving notice of the debt or the debt will be considered valid by the licensee;

(b)    if the consumer notifies the licensee in writing within thirty days after receiving notice that the consumer disputes the debt, the licensee must obtain verification of the debt or a copy of the judgment against the consumer and the collection agency shall mail a copy of the verification or judgment to the consumer; and

(c)    the licensee shall provide the consumer with the name and address of the original creditor if the consumer requests the information in writing during the thirty-day period;

(5)    the licensee's license number; and

(6)    a conspicuous statement in boldface type located in immediate proximity to the space where the validation of the alleged debt appears, that states: 'You may contact the South Carolina Department of Consumer Affairs if you have complaints concerning a collection agency.' The department's current phone number, mailing address, and internet web site address must be included.

(B)    A licensee shall suspend collection of a debt if a consumer notifies the licensee within the thirty-day period that the consumer either disputes the debt or requests the name and address of the original creditor. The licensee may not resume collection until the licensee:

(1)    obtains verification of the debt or a copy of the judgment, if collection was suspended due to a dispute of the debt; or

(2)    mails the name and address of the original creditor to the consumer, where collection is suspended because the consumer requests that information.

(C)    A court may not construe a consumer's failure to dispute the validity of a debt under this section as the consumer's admission of liability for the debt.

(D)    A licensee may not communicate credit information to a consumer-reporting agency within thirty days after the licensee mails the initial notice to a consumer unless the consumer's last-known address is invalid. This provision does not apply to checks, bank drafts, or credit card drafts.

Section 37-12-265.    A licensee receiving payment from a consumer owing multiple debts shall apply the payment as the consumer instructs and may not apply the payment to a debt disputed by the consumer.

Section 37-12-270.    (A)    A licensee receiving payment from a consumer must furnish an original receipt or a duplicate of the original receipt to the consumer. The licensee must retain a copy of the receipt in its office for a period of three years after the receipt is issued. A receipt must:

(1)    be prenumbered by the printer, used, and filed in consecutive numerical order;

(2)    include the name, street address, and license number of the licensee;

(3)    include the name of the creditor for whom collected;

(4)    include the amount and date of the payments made to the account; and

(5)    include the last name of the person accepting payment.

(B)    A licensee who orally receives a consumer's authorization for payment of a debt must also:

(1)    obtain the consumer's written authorization for the payment prior to the payment date; or

(2)    record by audio tape or digital means the consumer's verbal authorization and retain the recording for a period of three years; or

(3)    send the consumer to another employee of the licensee to verify the amount of the payment, the means by which the payment is made, and the consumer's verbal authorization for payment. The licensee must maintain a detailed record of the authorization and verification for a period of three years.

(C)    A licensee shall refund a consumer's payment within five days of a dispute if:

(1)    a licensee does not comply with subsection (B); and

(2)    the consumer disputes the purported authorization within sixty days of the payment.

(D)    A licensee shall provide a written account statement to the consumer within ten days of his written request that includes the:

(1)    consumer's name;

(2)    creditor's name;

(3)    amounts paid by the consumer;

(4)    dates on which the creditor received the payments;

(5)    allocation of money to principal, interest, court costs, attorney fees, and other costs as applicable; and

(6)    the total outstanding balance at the end of the period covered by the statement.

(E)    A licensee shall provide the consumer one account statement annually at no charge, and additional statements upon the consumer's request and payment of a fee not to exceed two dollars per statement.

Section 37-12-275.    (A)    A person who violates this chapter is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred dollars, imprisoned not more than twelve months, or both. A court of competent jurisdiction that determines a violation is wilful may impose a fine of not less than five hundred and fifty dollars for each violation.

(B)    A consumer injured or damaged by a violation of this chapter or regulation promulgated pursuant to this chapter may maintain a civil action to recover:

(1)    actual damages sustained;

(2)    statutory damages of not less than one hundred dollars and not more than one thousand dollars for each violation;

(2)    punitive damages; and

(3)    reasonable attorney fees and other costs associated with the action. In determining attorney's fees, the amount of the recovery on behalf of the consumer is not controlling.

(C)    A person must commence an action pursuant to this section within three years from the date on which he discovered or reasonably should have discovered the facts giving rise to the claim.

(D) The remedies provided by this section are cumulative, and in addition to remedies otherwise available.

(E)    The department may impose a civil penalty of no more than two thousand five hundred dollars for a violation but not more than ten thousand dollars for multiple violations arising from the same set of transactions or occurrences.

Section 37-12-280.    A collection agency shall comply with the provisions of the federal Gramm-Leach-Bliley Act, 15 USC Section 6801 et seq. (1999) and the applicable implementing federal Privacy of Consumer Information regulations, as adopted by the Office of the Comptroller of the Currency, 12 CFR Part 40 (2001); the Board of Governors of the Federal Reserve System, 12 CFR Part 332 (2001); the Office of Thrift Supervisions, 12 CFR, Part 573 (2001); the Federal Trade Commission, 16 CFR, Part 313 (2001); or the Securities and Exchange Commission, 17 CFR, Part 248 (2001), if the collection agency or repossession company is a financial institution as defined in those regulations.

SECTION    2.    If any section, subsection, paragraph, subparagraph, sentence, clause, phrase, or word of this act is for any reason held to be unconstitutional or invalid, such holding shall not affect the constitutionality or validity of the remaining portions of this act, the General Assembly hereby declaring that it would have passed this chapter, and each and every section, subsection, paragraph, subparagraph, sentence, clause, phrase, and word thereof, irrespective of the fact that any one or more other sections, subsections, paragraphs, subparagraphs, sentences, clauses, phrases, or words hereof may be declared to be unconstitutional, invalid, or otherwise ineffective.

SECTION    3.    This act takes effect July 1, 2008.


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