§ 5-19-228. Prohibited Acts and Practices

1. A provider may not, directly or indirectly:
   1. Misappropriate or misapply money held in trust;
   2. Settle a debt on behalf of an individual without the individual’s agreement to the settlement terms pursuant to a settlement agreement or other valid contractual agreement executed by the individual;
   3. Exercise or attempt to exercise a power of attorney after an individual has terminated an agreement;
   4. Initiate a transfer from an individual’s account at a bank or with another person unless the transfer is:
      1. A return of money to the individual; or
      2. Before termination of an agreement, properly authorized by the agreement and this part 2, and for:
         1. Payment to one or more creditors pursuant to a plan; or
         2. Payment of a fee;
   5. Offer a gift or bonus, premium, reward, or other compensation to an individual for executing an agreement;
   6. Offer, pay, or give a gift or bonus, premium, reward, or other compensation to a person for referring a prospective customer, except for a sales lead, if the person making the referral has a financial interest in the outcome of debt-management services provided to the customer, unless neither the provider nor the person making the referral communicates to the prospective customer the identity of the source of the referral;
   7. Receive a bonus, commission, or other benefit for referring an individual to a person;
   8. Structure a plan in a manner that would result in a negative amortization of any of an individual’s debts, unless a creditor that is owed a negatively amortizing debt agrees to refund or waive the finance charge upon payment of the principal amount of the debt;
   9. Compensate its employees on the basis of a formula that incorporates the number of individuals the employee induces to enter into agreements;
   10. Settle a debt or lead an individual to believe that a payment to a creditor is in settlement of a debt to the creditor unless, at the time of settlement, the individual receives a certification by the creditor that the payment is in full settlement of the debt;
   11. Make a representation that:
       1. The provider will furnish money to pay bills or prevent attachments;
       2. Payment of a certain amount will permit satisfaction of a certain amount or range of indebtedness; or
       3. Participation in a plan will or may prevent litigation, collection activity, garnishment, attachment, repossession, foreclosure, eviction, or loss of employment;
   12. Misrepresent that it is authorized or competent to furnish legal advice or perform legal services;
   13. Represent that it is a not-for-profit entity unless it is organized and properly operating as a not-for-profit under the law of the state in which it was formed or that it is a tax-exempt entity unless it has received certification of tax-exempt status from the federal internal revenue service; except that, if the provider represents that it is a not-for-profit entity and the provider does not have tax-exempt status under section 501 (c) (3) of the federal “Internal Revenue Code of 1986”, as amended, the provider shall state, in a clear and conspicuous manner and in close proximity to the representation: “We are not an educational, charitable, or religious organization granted tax-exempt status by the Internal Revenue Service.”
   14. Take a confession of judgment or power of attorney to confess judgment against an individual;
   15. Employ an unfair, unconscionable, or deceptive act or practice, including the knowing omission of any material information; or
   16. Advise, encourage, or suggest to the individual not to make a payment to creditors under the plan.
2. If a provider furnishes debt-management services to an individual, the provider may not, directly or indirectly:

   (1) Purchase a debt or obligation of the individual;

   (2) Receive from or on behalf of the individual:

   (A) A promissory note or other negotiable instrument other than a check or a demand draft; or

   (B) A post-dated check or demand draft;

   (3) Lend money or provide credit to the individual, except as a deferral of a settlement fee at no additional expense to the individual;

   (4) Obtain a mortgage or other security interest from any person in connection with the services provided to the individual;

   (5) Except as permitted by federal law, disclose the identity or identifying information of the individual or the identity of the individual’s creditors, except to:

   (A) The administrator, upon proper demand;

   (B) A creditor of the individual, to the extent necessary to secure the cooperation of the creditor in a plan; or

   (C) The extent necessary to administer the plan;

   (6) Except as otherwise provided in section 5-19-223 (d)(2), provide the individual less than the full benefit of a compromise of a debt arranged by the provider;

   (7) Charge the individual for or provide credit or other insurance, coupons for goods or services, membership in a club, access to computers or the internet, or any other matter not directly related to debt-management services or educational services concerning personal finance; or

   (8) Furnish legal advice or perform legal services, unless the person furnishing that advice to or performing those services for the individual is licensed to practice law.

3. This part 2 does not authorize any person to engage in the practice of law.
4. A provider may not receive a gift or bonus, premium, reward, or other compensation, directly or indirectly, for advising, arranging, or assisting an individual in connection with obtaining an extension of credit or other service from a lender or service provider, except for educational or counseling services required in connection with a government-sponsored program.
5. Unless a person supplies goods, services, or facilities generally and supplies them to the provider at a cost no greater than the cost the person generally charges to others, a provider may not purchase goods, services, or facilities from the person if an employee or a person that the provider should reasonably know is an affiliate of the provider:

   (1) Owns more than ten percent of the person; or

   (2) Is an employee or affiliate of the person.

Source: L. 2017: Entire article added with relocations, (HB 17-1238), ch. 260, p. 1161, § 4, effective August 9.

Editor’s note: This section is similar to former § 12-14.5-228 as it existed prior to 2017.