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S02343 Summary:

Add Art 29-HHH 604-k - 604-o, Gen Bus L; amd R3015, CPLR
Requires debt collection agencies to be licensed by the state; requires bonding and allows for penalties.
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S02343 Text:

                STATE OF NEW YORK
                               2019-2020 Regular Sessions
                    IN SENATE
                                    January 24, 2019
        Introduced  by Sen. KAVANAGH -- read twice and ordered printed, and when
          printed to be committed to the Committee on Consumer Protection
        AN ACT to amend the general business law and the civil practice law  and
          rules, in relation to debt collection agencies
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Legislative intent. The legislature hereby finds the  pres-
     2  ence  of consumer-related problems with respect to the practices of debt
     3  collection agencies. Federal and state laws regulate how debt collectors
     4  may communicate with debtors and prohibit the use of  certain  threaten-
     5  ing,  deceptive  and  unfair  collection  practices. Despite these legal
     6  protections, the number of consumer complaints regarding debt collection
     7  practices continue to rise. Consumer complaints received by the  Federal
     8  Trade  Commission  regarding  third-party  debt  collectors grew for the
     9  thirteenth consecutive year  in  2010,  and  consumers  filed  with  the
    10  Commission  more  complaints against third-party collectors than against
    11  any other specific industry. While the majority of those engaged in  the
    12  business  of  debt  collection are honest and ethical in their dealings,
    13  there is a minority of unscrupulous  collection  agencies  in  operation
    14  that practice abusive tactics. Due to the sensitive nature of the infor-
    15  mation  used  in  the course of such agency's everyday business, and the
    16  vulnerable position consumers find themselves in when dealing with these
    17  agencies, it is incumbent upon this legislature to  protect  the  inter-
    18  ests,  reputations  and  fiscal well-being of the citizens of this state
    19  against those agencies who would abuse  their  privilege  of  operation.
    20  Therefore,  it  is  herein  declared  that the state should license debt
    21  collection agencies.
    22    § 2. The general business law is  amended  by  adding  a  new  article
    23  29-HHH to read as follows:
    24                               ARTICLE 29-HHH
    25                          DEBT COLLECTION AGENCIES
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.

        S. 2343                             2
     1  Section 604-k. Definitions.
     2          604-l. Debt collection agencies.
     3          604-m. Surety bonding requirement.
     4          604-n. Penalties.
     5          604-o. Applicability.
     6    §  604-k.  Definitions.  As  used in this article, the following terms
     7  shall have the following meanings:
     8    1. (a) "Debt collection agency" shall mean a person,  firm  or  corpo-
     9  ration  engaged  in business, the principal purpose of which is to regu-
    10  larly collect or attempt to collect debts owed or due or asserted to  be
    11  owed or due to another and shall also include a buyer of delinquent debt
    12  who  seeks  to collect such debt either directly or through the services
    13  of another by, including but not limited to, initiating or  using  legal
    14  processes or other means to collect or attempt to collect such debt.
    15    (b) The term does not include: (i) any officer or employee of a credi-
    16  tor while, in the name of the creditor, collecting debts for such credi-
    17  tor;
    18    (ii) any officer or employee of a debt collection agency;
    19    (iii)  any person while acting as a debt collection agency for another
    20  person, both of whom are related by common ownership  or  affiliated  by
    21  corporate control, if the person acting as a debt collection agency does
    22  so  only  for  persons to whom it is so related or affiliated and if the
    23  principal business of such person is not the collection of debts;
    24    (iv) any person while serving or attempting to serve legal process  on
    25  any  other  person  in  connection  with the judicial enforcement of any
    26  debt;
    27    (v) any attorney-at-law or law firm collecting a debt in such capacity
    28  on behalf of and in the name of a client solely through activities  that
    29  may  only  be performed by a licensed attorney, but not any attorney-at-
    30  law or law firm or part thereof  who  regularly  engages  in  activities
    31  traditionally  performed  by debt collectors, including, but not limited
    32  to, contacting a debtor through the  mail  or  via  telephone  with  the
    33  purpose  of  collecting a debt or other activities as determined by rule
    34  of the secretary;
    35    (vi) any person employed by a utility regulated under  the  provisions
    36  of the public service law, acting for such utility;
    37    (vii)  any person collecting or attempting to collect any debt owed or
    38  due or asserted to be owed or due another to the extent  such  activity:
    39  (A)  is  incidental  to  a bona fide fiduciary obligation or a bona fide
    40  escrow agreement; (B) concerns a  debt  which  was  originated  by  such
    41  person;  or  (C) concerns a debt which was not in default at the time it
    42  was obtained by such person as a secured party in  a  commercial  credit
    43  transaction involving the creditor;
    44    (viii) any officer or employee of the United States, any state thereof
    45  or  any political subdivision of any state to the extent that collecting
    46  or attempting to collect any debt owed is in the performance of  his  or
    47  her official duties;
    48    (ix)  any  non-profit organization which, at the request of consumers,
    49  performs bona fide consumer credit counseling and assists  customers  in
    50  the liquidation of their debts by receiving payments from such customers
    51  and distributing such amounts to creditors; or
    52    (x) any person, firm or corporation engaged in business, the principal
    53  purpose  of  which  is  to regularly collect or attempt to collect debts
    54  owed or due or asserted to be owed or due to another  person  where  the
    55  debt  is  enforced  for  child  support, spousal support, maintenance or
    56  alimony, provided, however, that if such  person,  firm  or  corporation

        S. 2343                             3
     1  also  regularly  collects  or attempts to collect debts other than those
     2  enforced for child support, spousal  support,  maintenance  or  alimony,
     3  such person must comply with the requirements of this article.
     4    2.  "Consumer"  means  any natural person obligated or allegedly obli-
     5  gated to pay any debt.
     6    3. "Debt" means any obligation or alleged obligation of a consumer  to
     7  pay  money  arising  out  of a transaction in which the money, property,
     8  insurance, or services which are the  subject  of  the  transaction  are
     9  primarily  for  personal,  family, or household purposes, whether or not
    10  such obligation has been reduced to judgment.
    11    4. "Department" means the department of state.
    12    5. "Division" means the division of criminal justice services.
    13    6. "Secretary" means the secretary of state.
    14    § 604-l. Debt collection agencies. 1. On or after October  first,  two
    15  thousand twenty, no person shall act as a debt collection agency without
    16  first  having  obtained  a  license in accordance with the provisions of
    17  this article, and without first  being  in  compliance  with  all  other
    18  applicable laws, rules and regulations.
    19    2. (a) All licenses issued pursuant to this article shall be valid for
    20  two years unless sooner suspended or revoked. The secretary shall estab-
    21  lish by regulation the expiration date of such licenses.
    22    (b)  The  fee  for  a license or renewal thereof shall be five hundred
    23  dollars.
    24    3. (a) Each person applying for a debt collection  agency  license  or
    25  renewal thereof shall file an application in such form and detail as the
    26  secretary may prescribe and shall pay the fee required by this section.
    27    (b) In addition to any other information required, the secretary shall
    28  require  the  following  information, and shall, as appropriate, require
    29  such information not only of the applicant but also of any of its  prin-
    30  cipals,  partners,  officers  and  directors,  or  any  person or entity
    31  controlling an interest greater than ten percent:
    32    (i) the name and residence address of the applicant;
    33    (ii) the business name, if other than applicant;
    34    (iii) the place, including the city, town or village, with the  street
    35  and number, where the business is to be located;
    36    (iv) the business telephone of the applicant;
    37    (v)  the  length of time that the applicant has been a debt collection
    38  agency;
    39    (vi) a statement indicating whether the applicant has:
    40    (A) been convicted of any crime or is a debtor  on  any  unpaid  civil
    41  judgment relating to work as a debt collection agency; and
    42    (B)  at  any  time  in the past been issued a license pursuant to this
    43  article, or has been issued a license for debt collection activities  by
    44  any  other state or local authority, and if so, whether such license was
    45  ever revoked or suspended;
    46    (vii) a detailed description of  the  business  practices  or  methods
    47  used,  or  intended to be used, by the applicant to confirm the validity
    48  of the debts it seeks to collect from consumers;
    49    (viii) a summary of the applicant's record-keeping policy,  including,
    50  but not limited to:
    51    (A)  the  length  of time the applicant maintains, or intends to main-
    52  tain, records pertaining to consumers; and
    53    (B) the manner in which the applicant records and stores,  or  intends
    54  to  record and store: consumer challenges to the validity of debt; bill-
    55  ing errors; payments made by a consumer; settlement agreements; informa-
    56  tion regarding parties responsible for debt; any statements  made  by  a

        S. 2343                             4
     1  consumer  alleging  that  the  debt  arose  from identity theft; and any
     2  statements made by a consumer stating that the consumer received  statu-
     3  torily  exempt income as defined in section fifty-two hundred twenty-two
     4  of the civil practice law and rules;
     5    (ix) whether the applicant regularly sells, or intends to sell, debts.
     6  If  the  applicant sells, or intends to sell debts, such applicant shall
     7  be required to provide the secretary with a summary of  the  applicant's
     8  policy  with  respect  to the information regarding a consumer's account
     9  that it transmits, or will transmit, to the purchaser of a debt; and
    10    (x) a sworn statement by the applicant that the information set  forth
    11  in the application is current and accurate.
    12    (c)  An applicant who is a non-resident of the state shall provide the
    13  name and address of a registered agent within the state or designate the
    14  secretary as his or her agent upon whom process  or  other  notification
    15  may be served.
    16    4.  In  determining whether to issue or renew a license, the secretary
    17  shall consider the character, competency and integrity of the applicant.
    18  The secretary may refuse to issue or renew a license to any person, firm
    19  or corporation whom he or she finds has: (a) been convicted of any crime
    20  defined in article one hundred fifty-five of the penal  law  or  article
    21  twenty-two-A  of  this chapter or failed to pay any final civil judgment
    22  relating to work as a debt collection agency, if such  refusal,  in  the
    23  judgment  of the secretary, best promotes the interests of the people of
    24  this state; or
    25    (b) violated article twenty-nine-H of this chapter or the federal Fair
    26  Debt Collection Practices Act (15 USC § 1692 et seq.).
    27    All determinations by the secretary to issue or renew a license  shall
    28  be  made  in  accordance with subdivision sixteen of section two hundred
    29  ninety-six of the  executive  law  and  article  twenty-three-A  of  the
    30  correction law.
    31    5.  Notice in writing in the manner and form prescribed by the depart-
    32  ment shall be given to the department at its offices  in  Albany  within
    33  ten days of changes of name or address by licensed debt collection agen-
    34  cies.  The fee for filing each change of name or address notice shall be
    35  ten dollars.
    36    6. The fees established by this section shall not be refundable.
    37    7.  Each  debt  collection  agency  engaged  in collecting debts shall
    38  communicate his or her license number upon the request of any interested
    39  party. Any advertisement, letterhead, receipt or other printed matter of
    40  a licensee must contain the license number assigned to the  licensee  by
    41  the  department.  Such license number shall be clearly and conspicuously
    42  displayed.
    43    8. No person, firm or corporation shall: (a) present,  or  attempt  to
    44  present, as his, her or its own, the license number of another;
    45    (b)  knowingly give false evidence of a material nature to the depart-
    46  ment for the purpose of procuring a license;
    47    (c) falsely represent themselves to  be  a  licensed  debt  collection
    48  agency;
    49    (d) use or attempt to use a license which has expired;
    50    (e) offer to perform or perform any collection of debts without having
    51  a current license as is required under this article; or
    52    (f)  represent  in any manner that his, her or its license constitutes
    53  an endorsement of the quality of workmanship or competency of  the  debt
    54  collection agency.
    55    9. Licenses issued to debt collection agencies shall not be transfera-
    56  ble or assignable.

        S. 2343                             5
     1    10.  The  secretary  shall  issue each debt collection agency a unique
     2  license number.
     3    11.  The  department  shall  maintain  and  publish  a registry of all
     4  licensed debt collection agencies, which shall list  and  identify,  all
     5  licensed  debt  collection  agencies  doing  business in this state. The
     6  department shall make the registry available on its website.
     7    12. (a) The secretary shall adopt such rules and regulations as he  or
     8  she  may  determine are necessary for the administration and enforcement
     9  of  this  article,  and  shall  provide  written  notification  of   the
    10  provisions  of  this  article  to  all debt collection agencies licensed
    11  pursuant to this article.
    12    (b) In addition to any other powers of the secretary, not  in  limita-
    13  tion  thereof,  he or she shall have the power to enforce the provisions
    14  of this article, to investigate any violation  thereof,  to  investigate
    15  the  business,  business  practices  and  business  methods  of any debt
    16  collection agency, and to conduct routine examinations of the  financial
    17  solvency  of any debt collection agency, if in the opinion of the secre-
    18  tary,  such  investigation  or  examination  is  warranted.  Each   debt
    19  collection  agency  shall  be  obliged,  on  request of the secretary of
    20  state, to supply such information, books, papers or records  as  may  be
    21  required  concerning  his,  her  or  its business, business practices or
    22  business methods, or proposed business practices or methods. Failure  to
    23  comply  with  a  lawful  request  of the secretary shall be a ground for
    24  denying an application for a license, or for  revoking,  suspending,  or
    25  failing to renew a license  issued under this article.
    26    (c)  The  department  shall  have  the  power to revoke or suspend any
    27  license, or in lieu thereof to impose a fine not less than  one  hundred
    28  dollars  nor  more  than two thousand dollars per violation or instance,
    29  payable to the department, or reprimand any licensee or deny an applica-
    30  tion for a license or renewal thereof upon proof:
    31    (i) that the applicant or licensee has violated any of the  provisions
    32  of  this  article  or  the rules and regulations promulgated pursuant to
    33  this article;
    34    (ii) that the applicant or licensee has  practiced  fraud,  deceit  or
    35  misrepresentation;
    36    (iii)  that the applicant or licensee has made a material misstatement
    37  in the application for or renewal of his or her license; or
    38    (iv) that the applicant or licensee has demonstrated  incompetence  or
    39  untrustworthiness in his or her actions.
    40    13.  The  department shall before denying an application for a license
    41  or before revoking or suspending any license, or imposing  any  fine  or
    42  reprimand, and at least fifteen days prior to the date set for the hear-
    43  ing, and upon due notice to the complainant or objector, notify in writ-
    44  ing the applicant, or the holder of such license, of any charge made and
    45  shall  afford  such  applicant or licensee an opportunity to be heard in
    46  person or by counsel in reference thereto. Such written  notice  may  be
    47  served  personally to the applicant or licensee, or by certified mail to
    48  the last known business address of such applicant or licensee.
    49    14. The hearing on such charges shall be at such time and place as the
    50  department shall prescribe and shall be conducted  by  such  officer  or
    51  person  in the department as the secretary may designate, who shall have
    52  the power to subpoena and bring before the officer, or person so  desig-
    53  nated,  any  person  in  this  state  and administer an oath to and take
    54  testimony of any person or cause his or her deposition to  be  taken.  A
    55  subpoena issued under this section shall be regulated by the civil prac-
    56  tice  law and rules. Such officer or person in the department designated

        S. 2343                             6
     1  to take such testimony shall not be bound by  common  law  or  statutory
     2  rules of evidence or by technical or formal rules of procedure.
     3    15.  In  the event that the department shall deny the application for,
     4  or revoke or suspend any such license, or impose any fine or  reprimand,
     5  its  determination  shall  be  in  writing  and  officially  signed. The
     6  original of such determinations, when so signed, shall be filed  in  the
     7  office  of  the  department  and  copies  thereof shall be mailed to the
     8  applicant or licensee and to the complainant within two days after  such
     9  filing.
    10    16.  The  department,  acting  by  the  office or person designated to
    11  conduct the hearing pursuant to subdivision thirteen of this section  or
    12  by  such  other  officer or person in the department as the secretary of
    13  state may designate, shall have the power to suspend the license of  any
    14  licensee  who  has  been  convicted  in this state or any other state or
    15  territory of a felony or of any misdemeanor for a period  not  exceeding
    16  thirty  days  pending  a  hearing  and  a  determination of charges made
    17  against him or her. If such hearing is adjourned at the request  of  the
    18  licensee, or by reason of any act or omission by him or her or on his or
    19  her  behalf,  such suspension may be continued for the additional period
    20  of such adjournment.
    21    17. The action of the department in granting or refusing to  grant  or
    22  to  renew  a  license under this article or in revoking or suspending or
    23  refusing to revoke or suspend such a license or  imposing  any  fine  or
    24  reprimand  shall  be  subject to review by a proceeding instituted under
    25  article seventy-eight of  the  civil  practice  law  and  rules  at  the
    26  instance  of  the applicant for such license, the holder of a license so
    27  revoked, suspended, fined or reprimanded.
    28    18. For the purpose of this article, licensees may be held responsible
    29  for statements, representations, promises or acts of their employees  or
    30  their  agents  within  the  scope of their authority; provided, however,
    31  that licensees shall not be held responsible for statements, representa-
    32  tions, promises or acts which are  contrary  to  instructions  or  which
    33  constitute  gross  negligence  or  intentional torts unless specifically
    34  authorized by the licensee.
    35    19. (a) Any person, firm  or  corporation  that  operates  as  a  debt
    36  collection  agency  without  a  license shall be required to pay a civil
    37  penalty to the department of not more  than  five  hundred  dollars  per
    38  attempt to collect a debt in violation of this section.
    39    (b)  In  addition to any other penalties, if a person is found to have
    40  committed repeated, multiple or persistent violations of  any  provision
    41  of  this  article,  such  person  may be responsible for the cost of the
    42  department's investigation.
    43    § 604-m. Surety bonding requirement. 1. As a condition of obtaining  a
    44  license pursuant to this article, every debt collection agency applicant
    45  who  is applying for a license and employs between one and four individ-
    46  uals engaged in the collection of debts shall  obtain  and  continue  in
    47  full  force  and  effect  a  bond, contract of indemnity, or irrevocable
    48  letter of credit in the amount of ten thousand dollars to be filed  with
    49  the secretary.
    50    2.  As  a  condition  to obtaining a license pursuant to this article,
    51  every debt collection agency applicant who is applying for a license and
    52  employs between five and nine individuals engaged in the  collection  of
    53  debts  shall  obtain  and  continue  in  full  force  and effect a bond,
    54  contract of indemnity, or irrevocable letter of credit in the amount  of
    55  twenty-five thousand dollars to be filed with the secretary.

        S. 2343                             7
     1    3.  As  a  condition  to obtaining a license pursuant to this article,
     2  every debt collection agency applicant who is applying for a license and
     3  employs between ten and twenty individuals engaged in the collection  of
     4  debts  shall  obtain  and  continue  in  full  force  and effect a bond,
     5  contract  of indemnity, or irrevocable letter of credit in the amount of
     6  fifty thousand dollars to be filed with the secretary.
     7    4. As a condition to obtaining a license  pursuant  to  this  article,
     8  every debt collection agency applicant who is applying for a license and
     9  employs  twenty  or  more individuals engaged in the collection of debts
    10  shall obtain and continue in full force and effect a bond,  contract  of
    11  indemnity,  or  irrevocable  letter of credit, in the amount of seventy-
    12  five thousand dollars to be filed with the secretary.
    13    5. Such surety bond, contract of indemnity, or irrevocable  letter  of
    14  credit  shall  be  conditioned  that the applicant will comply with this
    15  article, article twenty-nine-H, and article twenty-nine-HH of this chap-
    16  ter and pay all civil penalties, fines, or other obligations imposed  by
    17  the  secretary  or  a  court  of law, investigatory costs required to be
    18  paid, or any final judgment against the licensee pursuant to such  arti-
    19  cles.
    20    6.  The  total liability imposed on the surety bond under this section
    21  for all breaches of the bond condition is limited to the face amount  of
    22  the  bond.  Such  liability  is  limited to the amount of the penalty or
    23  investigatory costs. In no event will the surety on a bond be liable for
    24  total claims in excess of the bond amount, regardless of the  number  or
    25  nature  of  claims made against the bond or the number of years the bond
    26  remained in force.
    27    7. Any surety issuing a bond pursuant to this section and any licensee
    28  shall be required to provide thirty days notice to the  secretary  prior
    29  to  the effective date of cancellation of the bond. The failure to main-
    30  tain such a bond shall  operate  to  revoke  the  license  of  the  debt
    31  collection agency upon notice and hearing.
    32    §  604-n.  Penalties. 1.   Wherever there shall be a violation of this
    33  article, an application may be made by the attorney general in the  name
    34  of  the  people  of  the  state of New York to a court or justice having
    35  jurisdiction by a special proceeding to issue an  injunction,  and  upon
    36  notice  to  the  defendant  of  not  less  than  five days, to enjoin or
    37  restrain the continuance of such violation; and if it  shall  appear  to
    38  the  satisfaction  of  the  court  or justice that the defendant has, in
    39  fact, violated this section, an injunction may be issued by  such  court
    40  or  justice,  enjoining  and  restraining any further violation, without
    41  requiring proof that any person has, in fact, been  injured  or  damaged
    42  thereby.  In  any  such proceeding, the court may make allowances to the
    43  attorney general as provided in paragraph  six  of  subdivision  (a)  of
    44  section  eighty-three hundred three of the civil practice law and rules,
    45  and direct restitution.  Whenever  the  court  shall  determine  that  a
    46  violation  of  this  section  has occurred, the court may impose a civil
    47  penalty of not less than one hundred dollars nor more than ten  thousand
    48  dollars  for each violation. In connection with any such proposed appli-
    49  cation, the attorney general is authorized to  take  proof  and  make  a
    50  determination of the relevant facts and to issue subpoenas in accordance
    51  with the civil practice law and rules.
    52    2. Any person who has been the subject of an attempt to collect a debt
    53  by  a debt collection agency that is not licensed pursuant to this arti-
    54  cle may bring an action in his or her own name to enjoin  such  unlawful
    55  act or practice, an action to recover his or her actual damages or three
    56  thousand  five  hundred  dollars,  whichever  is  greater,  or both such

        S. 2343                             8
     1  actions. The court may, in its discretion, increase the award of damages
     2  to an amount not to exceed three times the  actual  damages  up  to  ten
     3  thousand  dollars,  if  the court finds the defendant willfully violated
     4  this  article. In the case of any successful action to enforce the fore-
     5  going liability, the court may award the costs of  the  action  together
     6  with reasonable attorney's fees.
     7    §  604-o.  Applicability.  1. Except as provided in subdivision two of
     8  this section, the provisions of this article  shall  exclusively  govern
     9  the licensing of debt collection agencies notwithstanding the provisions
    10  of  any  other  law  to  the contrary and further, no local law shall be
    11  enacted which shall require any fee or  license  for  the  licensure  or
    12  registration of debt collection agencies.
    13    2.  The  provisions of this article shall not be construed to limit in
    14  any way the authority of a political subdivision to enact, implement and
    15  continue to enforce local laws and regulations governing  the  licensure
    16  or registration of debt collection agencies that were in effect prior to
    17  the  effective  date of this article, or to enact, implement and enforce
    18  any amendments thereto.
    19    § 3. Subdivision (e) of rule 3015 of the civil practice law and rules,
    20  as amended by chapter 21 of the laws of 2013,  is  amended  to  read  as
    21  follows:
    22    (e)  License  to  do  business.  Where the plaintiff's cause of action
    23  against a consumer arises from the plaintiff's  conduct  of  a  business
    24  which is required by state or local law to be licensed by the department
    25  of  consumer affairs of the city of New York, the Suffolk county depart-
    26  ment of consumer affairs, the Westchester county department of  consumer
    27  affairs/weight-measures,  the  county  of Rockland, the county of Putnam
    28  [or], the Nassau county department of consumer affairs or the department
    29  of  state pursuant to article twenty-nine-HHH of  the  general  business
    30  law,  the  complaint  shall allege, as part of the cause of action, that
    31  plaintiff was duly licensed at the time of services rendered  and  shall
    32  contain  the  name  and  number, if any, of such license and the govern-
    33  mental agency which issued such license. The failure of the plaintiff to
    34  comply with this subdivision will  permit  the  defendant  to  move  for
    35  dismissal  pursuant  to paragraph seven of subdivision (a) of rule thir-
    36  ty-two hundred eleven of this chapter.
    37    § 4. This act shall take effect on the one hundred eightieth day after
    38  it shall have become a law; provided, however, that effective immediate-
    39  ly, the addition, amendment and/or repeal  of  any  rule  or  regulation
    40  necessary  for  the implementation of this act on its effective date are
    41  authorized and directed to be made  and  completed  on  or  before  such
    42  effective date.
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