§ 13-42-128 — Prohibited acts and practices.

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

(1)(a) include a secured debt in a plan, except as authorized by law other than this chapter;
(1)(b) misappropriate or misapply money held in trust;
(1)(c) settle a debt on behalf of an individual, unless the individual assents to the settlement after the creditor has assented;
(1)(d) take a power of attorney that authorizes it to settle a debt;
(1)(e) exercise or attempt to exercise a power of attorney after an individual has terminated an agreement;
(1)(f) initiate a transfer from an individual's account at a bank or with another person unless the transfer is:
(1)(f)(i) a return of money to the individual; or
(1)(f)(ii) before termination of an agreement, properly authorized by the agreement and this chapter, and for:

(1)(f)(ii)(A) payment to one or more creditors pursuant to an agreement; or
(1)(f)(ii)(B) payment of a fee;
(1)(g) offer a gift or bonus, premium, reward, or other compensation to an individual for executing an agreement;
(1)(h) offer, pay, or give a gift or bonus, premium, reward, or other compensation to a lead generator or other person for referring a prospective customer, if the person making the referral:
(1)(h)(i) 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; or
(1)(h)(ii) compensates its employees on the basis of a formula that incorporates the number of individuals the employee refers to the provider;
(1)(i) receive a bonus, commission, or other benefit for referring an individual to a person;
(1)(j) 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 on payment of the principal amount of the debt;
(1)(k) compensate its employees on the basis of a formula that incorporates the number of individuals the employee induces to enter into agreements;
(1)(l) 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:
(1)(l)(i) is in full settlement of the debt; or
(1)(l)(ii) is part of a settlement plan, the terms of which are included in the certification, that, if completed according to its terms, will satisfy the debt;
(1)(m) make a representation that:
(1)(m)(i) the provider will furnish money to pay bills or prevent attachments;
(1)(m)(ii) payment of a certain amount will permit satisfaction of a certain amount or range of indebtedness; or
(1)(m)(iii) participation in a plan will or may prevent litigation, garnishment, attachment, repossession, foreclosure, eviction, or loss of employment;
(1)(n) misrepresent that it is authorized or competent to furnish legal advice or perform legal services;
(1)(o) represent in its agreements, disclosures required by this chapter, advertisements, or Internet website that it is:
(1)(o)(i) 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
(1)(o)(ii) 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;
(1)(p) take a confession of judgment or power of attorney to confess judgment against an individual;
(1)(q) employ an unfair, unconscionable, or deceptive act or practice;
(1)(r) knowingly omit any material information or material aspect of any provider's service, including:
(1)(r)(i) the amount of money or the percentage of the debt amount that an individual may save by using the provider's service;
(1)(r)(ii) the amount of time necessary to achieve the results that the provider represents as achievable;
(1)(r)(iii) the amount of money or the percentage of each outstanding debt that the individual is required to accumulate before the provider will:

(1)(r)(iii)(A) initiate an attempt with the individual's creditors or debt collectors to negotiate, settle, or modify the terms of the individual's debt; or
(1)(r)(iii)(B) make a bona fide offer to negotiate, settle, or modify the terms of the individual's debt;
(1)(r)(iv) the effect of the service on:

(1)(r)(iv)(A) an individual's creditworthiness; or
(1)(r)(iv)(B) collection efforts of the individual's creditors or debt collectors;
(1)(r)(v) the percentage or number of individuals who achieve the results that the provider represents are achievable; and
(1)(r)(vi) whether a provider's service is offered or provided by a nonprofit entity; or
(1)(s) make or use any untrue or misleading statement:
(1)(s)(i) to the administrator; or
(1)(s)(ii) in the provision of services subject to this chapter.
(2) If a provider furnishes debt-management services to an individual, the provider may not, directly or indirectly:

(2)(a) purchase a debt or obligation of the individual;
(2)(b) receive from or on behalf of the individual:
(2)(b)(i) a promissory note or other negotiable instrument other than a check or a demand draft; or
(2)(b)(ii) a post-dated check or demand draft;
(2)(c) lend money or provide credit to the individual, unless the loan or credit is:
(2)(c)(i) a deferral of a settlement fee at no additional expense to the individual; or
(2)(c)(ii) through an affiliate that is licensed separately from the provider;
(2)(d) obtain a mortgage or other security interest from any person in connection with the services provided to the individual;
(2)(e) 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:
(2)(e)(i) the administrator, on proper demand;
(2)(e)(ii) a creditor of the individual, to the extent necessary to secure the cooperation of the creditor in a plan; or
(2)(e)(iii) the extent necessary to administer the plan;
(2)(f) except as otherwise provided in Subsection 13-42-123(4)(c), provide the individual less than the full benefit of a compromise of a debt arranged by the provider;
(2)(g) 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
(2)(h) 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 chapter 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:

(4)(a) for educational or counseling services required in connection with a government-sponsored program; or
(4)(b) as authorized in Subsection 13-42-123(4)(d).
(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:

(5)(a) owns more than 10% of the person; or
(5)(b) is an employee or affiliate of the person.

Legislative History

Amended by Chapter 152, 2012 General Session