57-18-5528 - Prohibited acts and practices. [Effective July 1, 2010.] - Tennessee Statutes

57-18-5528. Prohibited acts and practices. [Effective July 1, 2010.]

(a)  A provider may not, directly or indirectly:

     (1)  Misappropriate or misapply money held in trust;

     (2)  Settle a debt on behalf of an individual for more than fifty percent (50%) of the outstanding amount of the debt owed a creditor, unless the individual assents to the settlement after the creditor has assented;

     (3)  Take a power of attorney that authorizes it to settle a debt, unless the power of attorney expressly limits the provider's authority to settle debts for not more than fifty percent (50%) of the outstanding amount of the debt owed a creditor;

     (4)  Exercise or attempt to exercise a power of attorney after an individual has terminated an agreement;

     (5)  Initiate a transfer from an individual's account at a bank or with another person unless the transfer is:

          (A)  A return of money to the individual; or

          (B)  Before termination of an agreement, properly authorized by the agreement and this part, and for:

                (i)  Payment to one (1) or more creditors pursuant to an agreement; or

                (ii)  Payment of a fee;

     (6)  Offer a gift or bonus, premium, reward or other compensation to an individual for executing an agreement;

     (7)  Offer, pay or give a gift or bonus, premium, reward or other compensation to a person for referring a prospective customer, 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;

     (8)  Receive a bonus, commission or other benefit for referring an individual to a person;

     (9)  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;

     (10)  Compensate its employees on the basis of a formula that incorporates the number of individuals the employee induces to enter into agreements;

     (11)  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 or is part of a payment plan, the terms of which are included in the certification, that upon completion, will lead to full settlement of the debt;

     (12)  Make a representation that:

          (A)  The provider will furnish money to pay bills or prevent attachments;

          (B)  Payment of a certain amount will permit satisfaction of a certain amount or range of indebtedness; or

          (C)  Participation in a plan will or may prevent litigation, garnishment, attachment, repossession, foreclosure, eviction or loss of employment;

     (13)  Misrepresent that it is authorized or competent to furnish legal advice or perform legal services;

     (14)  Represent in its agreements, disclosures required by this part, advertisements or Internet web site that it is:

          (A)  A not-for-profit entity unless it is organized and properly operating as a not-for-profit entity under the law of the state in which it was formed; or

          (B)  A tax-exempt entity unless it has received certification of tax-exempt status from the internal revenue service and is properly operating as a not-for-profit entity under the law of the state in which it was formed;

     (15)  Take a confession of judgment or power of attorney to confess judgment against an individual; or

     (16)  Employ an unfair, unconscionable or deceptive act or practice, including the knowing omission of any material information.

(b)  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 § 47-18-5523(f), 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 except to the extent such services are expressly authorized by the administrator; 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.

(c)  This part does not authorize any person to engage in the practice of law.

(d)  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.

(e)  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 (10%) of the person; or

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

[Acts 2009, ch. 469, § 1.]