As used in this part 2, unless the context otherwise
requires:
(1) Administrator means the assistant attorney general designated by the
attorney general pursuant to section 5-6-103.
(2) Affiliate:
(A) With respect to an individual, means:
(i) The spouse of the individual;
(ii) A sibling of the individual or the spouse of a sibling;
(iii) An individual or the spouse of an individual who is a lineal ancestor or
lineal descendant of the individual or the individual's spouse;
(iv) An aunt, uncle, great aunt, great uncle, first cousin, niece, nephew,
grandniece, or grandnephew, whether related by the whole or the half blood or
adoption, or the spouse of any of them; or
(v) Any other individual occupying the residence of the individual; and
(B) With respect to an entity, means:
(i) A person that directly or indirectly controls, is controlled by, or is under
common control with, the entity;
(ii) An officer of, or an individual performing similar functions with respect to,
the entity;
(iii) A director of, or an individual performing similar functions with respect
to, the entity;
(iv) A person that receives or received more than twenty-five thousand
dollars from the entity in either the current year or the preceding year or a person
that owns more than ten percent of, or an individual who is employed by or is a
director of, a person that receives or received more than twenty-five thousand
dollars from the entity in either the current year or the preceding year;
(v) An officer or director of, or an individual performing similar functions with
respect to, a person described in subsection (2)(B)(i) of this section;
(vi) The spouse of, or an individual occupying the residence of, an individual
described in subsections (2)(B)(i) to (2)(B)(v) of this section; or
(vii) An individual who has the relationship specified in subsection (2)(A)(iv) of
this section to an individual or the spouse of an individual described in subsections
(2)(B)(i) to (2)(B)(v) of this section.
(3) Agreement means an agreement between a provider and an individual
for the performance of debt-management services.
(4) Bank means a financial institution, including a commercial bank,
savings bank, savings and loan association, credit union, mortgage bank, and trust
company, engaged in the business of banking, chartered under federal or state law,
and regulated by a federal or state banking regulatory authority.
(5) Business address means the physical location of a business, including
the name and number of a street.
(6) Concessions means assent to repayment of a debt on terms more
favorable to an individual than the terms of the contract between the individual and
a creditor.
(7) Day means calendar day.
(8) (A) Debt-management services means services as an intermediary
between an individual and one or more creditors of the individual for the purpose of
obtaining concessions, but does not include:
(i) Legal services provided in an attorney-client relationship by an attorney
licensed to practice law in this state;
(ii) Accounting services provided in an accountant-client relationship by a
certified public accountant certified or authorized by the state board of
accountancy to provide accounting services in this state; or
(iii) Representative services provided before the internal revenue service, the
department of revenue, or the department of labor and employment in an enrolled
agent-client relationship for tax purposes by an enrolled agent who is authorized by
and in good standing with the United States department of treasury, if the enrolled
agent is not engaging in other debt management services.
(B) The exemptions in subsection (8)(A) of this section do not apply to any
person who directly or indirectly provides any debt management services on behalf
of a licensed attorney, certified public accountant, or enrolled agent if that person
is not an employee of the licensed attorney, certified public accountant, or enrolled
agent.
(9) Entity means a person other than an individual.
(10) Good faith means honesty in fact and the observance of reasonable
standards of fair dealing.
(11) Individual means a natural person.
(12) Person means an individual, corporation, business trust, estate, trust,
partnership, limited liability company, association, joint venture, or any other legal
or commercial entity. The term does not include a public corporation, government,
or governmental subdivision, agency, or instrumentality.
(13) Plan means a program or strategy in which a provider furnishes debt-management services to an individual and that includes a schedule of payments to
be made by or on behalf of the individual and used to pay debts owed by the
individual.
(14) Principal amount of the debt means the amount of a debt at the time of
an agreement.
(15) Provider means a person that provides, offers to provide, or agrees to
provide debt-management services directly or through others.
(16) Record means information that is inscribed on a tangible medium or
that is stored in an electronic or other medium and is retrievable in perceivable
form.
(17) Settlement fee means a charge imposed on or paid by an individual in
connection with a creditor's assent to accept in full satisfaction of a debt an
amount less than the principal amount of the debt.
(18) Sign means, with present intent to authenticate or adopt a record:
(A) To execute or adopt a tangible symbol; or
(B) To attach to or logically associate with the record an electronic sound,
symbol, or process.
(19) State means a state of the United States, the District of Columbia,
Puerto Rico, the United States Virgin Islands, or any territory or insular possession
subject to the jurisdiction of the United States.
(20) (A) Trust account means an account held by a provider that is:
(i) Established in an insured bank;
(ii) Separate from other accounts of the provider or its designee;
(iii) Designated as a trust account or other account designated to indicate
that the money in the account is not the money of the provider; and
(iv) Used to hold money of one or more individuals for disbursement to
creditors of the individuals.
(B) For a plan under which creditors will settle debts for less than the
principal amount of the debt, nothing in this part 2 prohibits a provider from
requesting or requiring an individual to place funds in an account, separate from the
individual's then-existing bank account, to be used for the provider's fees and for
payments to creditors or debt collectors in connection with the debt management
services, if:
(i) The funds are held in an account at an insured financial institution;
(ii) The individual owns the funds held in the account and is paid accrued
interest on the account, if any;
(iii) The entity administering the account is not owned, controlled by, or in
any way affiliated with the provider;
(iv) The entity administering the account does not give or accept any money
or other compensation in exchange for referrals of business involving the debt
management provider or plan; and
(v) The individual may withdraw from the debt management plan at any time
without penalty, and immediately receives all funds in the account, other than fees
earned in compliance with section 5-19-223, as required by section 5-19-226.