47-18-5519 - Form and contents of agreement. [Effective July 1, 2010.] - Tennessee Statutes

47-18-5519. Form and contents of agreement. [Effective July 1, 2010.]

(a)  An agreement must:

     (1)  Be in a record;

     (2)  Be dated and signed by the provider and the individual;

     (3)  Include the name of the individual and the address where the individual resides;

     (4)  Include the name, business address and telephone number of the provider;

     (5)  Be delivered to the individual immediately upon formation of the agreement; and

     (6)  Disclose:

          (A)  The services to be provided;

          (B)  The amount, or method of determining the amount, of all fees, individually itemized, to be paid by the individual;

          (C)  The schedule of payments to be made by or on behalf of the individual, including the amount of each payment, the date on which each payment is due and an estimate of the date of the final payment;

          (D)  If a plan provides for regular periodic payments to creditors:

                (i)  Each creditor of the individual to which payment will be made, the amount owed to each creditor and any concessions the provider reasonably believes each creditor will offer; and

                (ii)  The schedule of expected payments to each creditor, including the amount of each payment and the date on which it will be made;

          (E)  Each creditor that the provider believes will not participate in the plan and to which the provider will not direct payment;

          (F)  How the provider will comply with its obligations under § 47-18-5527(a);

          (G)  That the provider may terminate the agreement for good cause, upon return of unexpended money of the individual;

          (H)  That the individual may cancel the agreement as provided in § 47-18-5520;

          (I)  That the individual may contact the administrator with any questions or complaints regarding the provider; and

          (J)  The address, telephone number, and Internet address or web site of the administrator.

(b)  For purposes of subdivision (a)(5), delivery of an electronic record occurs when it is made available in a format in which the individual may retrieve, save and print it and the individual is notified that it is available.

(c)  If the administrator supplies the provider with any information required under subdivision (a)(6)(J), the provider may comply with that requirement only by disclosing the information supplied by the administrator.

(d)  An agreement must provide that:

     (1)  The individual has a right to terminate the agreement at any time, without penalty or obligation, by giving the provider written or electronic notice, in which event:

          (A)  The provider will refund all unexpended money that the provider or its agent has received from or on behalf of the individual for the reduction or satisfaction of the individual's debt;

          (B)  With respect to an agreement that contemplates that creditors will settle debts for less than the principal amount of debt, the provider will refund sixty-five percent (65%) of any portion of the set-up fee that has not been credited against the settlement fee; and

          (C)  All powers of attorney granted by the individual to the provider are revoked and ineffective;

     (2)  The individual authorizes any bank in which the provider or its agent has established a trust account to disclose to the administrator any financial records relating to the trust account; and

     (3)  The provider will notify the individual within five (5) days after learning of a creditor's final decision to reject or withdraw from a plan and that this notice will include:

          (A)  The identity of the creditor; and

          (B)  The right of the individual to modify or terminate the agreement.

(e)  An agreement may confer on a provider a power of attorney to settle the individual's debt for no more than fifty percent (50%) of the outstanding amount of the debt. An agreement may not confer a power of attorney to settle a debt for more than fifty percent (50%) of that amount, but may confer a power of attorney to negotiate with creditors of the individual on behalf of the individual. An agreement must provide that the provider will obtain the assent of the individual after a creditor has assented to a settlement for more than fifty percent (50%) of the outstanding amount of the debt.

(f)  An agreement may not:

     (1)  Provide for application of the law of any jurisdiction other than the United States and this state;

     (2)  Except as permitted by title 29, chapter 5, part 3, or by § 2 of the Federal Arbitration Act, codified in 9 U.S.C. § 2, contain a provision that modifies or limits otherwise available forums or procedural rights, including the right to trial by jury, that are generally available to the individual under law other than this part;

     (3)  Contain a provision that restricts the individual's remedies under this part or law other than this part; or

     (4)  Contain a provision that:

          (A)  Limits or releases the liability of any person for not performing the agreement or for violating this part; or

          (B)  Indemnifies any person for liability arising under the agreement or this part.

(g)  All rights and obligations specified in subsection (d) and § 47-18-5520 exist even if not provided in the agreement. A provision in an agreement that violates subsection (d), (e) or (f) is void.

[Acts 2009, ch. 469, § 1.]