Collection agencies.

WORKING DRAFT
2010
STATE OF
WYOMING
10LSO-0071

HOUSE BILL
NO.
HB0042

Collection agencies.

Sponsored by:
Joint Minerals, Business and Economic Development Interim Committee

A BILL

for

AN ACT relating to collection agencies; providing for consumer protection in collection transactions; transferring the collection agency program from the collection agency board to the Wyoming department of audit, banking division as specified; modifying requirements of the program; providing for reimbursement; terminating the collection agency board; transferring funds; and providing for an effective date.

Be It Enacted by the Legislature of the State of
Wyoming
:

Section 1.

W.S. 33
‑
11
‑
101, 33
‑
11
‑
102, 33
‑
11
‑
105 through 33
‑
11
‑
113 and 33
‑
11
‑
115 are repealed and recreated as 40
‑
25
‑
101 through 40
‑
25
‑
120 to read:

CHAPTER 25
COLLECTION AGENCIES

40
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25
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10
1.

Short title.

This act may be cited as the
"
Wyoming Collection Agency Act
"
.

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25
‑
10
2.

Definitions.

(a)

As used in this act:

(i)

"
Applicant
"
means a person filing an application for a license;

(ii)

"
Branch office
"
means any location for an office used by a collection agency in addition to the
"
home office
"
;

(iii)

"
Business debt
"
means the obligation arising from a credit transaction between business or commercial enterprises for goods or services used or to be used primarily in a commercial or business enterprise and not for personal, family or household purposes;

(iv)

"
Collection agency
"
means any person who in the ordinary course of business engages in debt collection;

(v)

"
Commissioner
"
means the
Wyoming
banking commissioner;

(vi)

"
Communication
"
means conveying information regarding a debt in written or oral form, directly or indirectly, to any person through any medium;

(vii)

"
Consumer
"
means any natural person obligated or allegedly obligated to pay any debt;

(viii)

"
Control
"
means owning twenty-five percent (25%) or more of the voting share
s
of the licensee or having the power to direct the licensee
'
s management or policies;

(ix)

"
Credit card servicing company
"
means a company that prior to default, performs the contractual duties in the administration of credit card debt such as collecting payments;

(x)

"
Creditor
"
means any person who offers or extends credit creating a debt or to whom a debt is owed
.
"
Creditor
"
shall
not include
a
ny person to the extent that the person receives an assignment or transfer of a debt in default solely for the purpose of facilitating collect
ion of the debt for another;

(xi)

"
Debt
"
means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance or services which are the subject of the transaction are primarily for personal, family or household purposes, whether or not the obligation has been reduced to judgment;

(xii)

"
Debt collection
"
means:

(A)

Engaging in a business whose principal purpose is the collection of debts of others;

(B)

C
ollect
ing
or attempt
ing
to collect, directly or indirectly, debts owed or due or asserted to be owed or due another;

(C)

Taking an assignment of

or purchasing
debts
in default
for collecti
o
n
purposes
;

(D)

Directly or indirectly solicit
ing
for collection debts owed or due or asserted to be owed or
due another
;
or

(E)

Using
a
ny
name
other than
hi
s
own name
when
in the
process of
collectin
g
hi
s
own
debts.

(xiii)

"
Debt collector
"
means any person who uses any instrumentality of interstate commerce in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or asserted to be owed or due another;

(xiv)

"
Division
"
means the division of banking within the
Wyoming

department of audit;

(xv)

"
Fair Debt Collection Practices Act
"
means the act set forth in 15 U.S.C. § 1692 et seq., as amended;

(xvi)

"
Home office
"
means the principal place of business of the collection agency;

(xvii)

"
Licensee
"
means a person licensed under this act
;

(xviii)

"
Mortgage servicing company
"
means a company, that prior to default, performs the contractual duties in the
administration
of mortgage lo
ans such as collecting payments;

(xix)

"
Person
"
means an individual, sole proprietorship, partnership, corporation, limited liability company or other entity, public or private
;

(xx)

"
Security device
"
means a surety bond or a cash deposit;

(xx
i
)

"
This act
"
means W.S.
40
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25
‑
101
through
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‑
1
20
.

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‑
103.

Powers and duties of commissioner.

(a)

In addition to any other powers and duties imposed upon the commissioner by law, the commissioner shall:

(i)

Perform any and all acts necessary to promulgate, administer and enforce the provisions of this
act
and any rules, regulations, orders, limitations, standards, requirements or licenses issued under this
act
, and to exercise all incidental powers as necessary to carry out the purposes of this
act
;

(ii)

Order any
licensee
to cease any activity or practice which the commissioner deems to be deceptive,
dishonest or
a violation of state or federal laws or regulations;

(iii)

Conduct investigations, issue subpoenas, and hold hearings as necessary to determine whether a person has violated any provision of this act;

(iv)

Conduct examinations of the books and records of licensees and conduct investigations as necessary and proper
in response to reasonable suspicion
for the enforcement of the provisions of this act and the rules promulgated under the authority of this act;

(v)

Issue orders that are necessary to execute, enforce and effectuate the purposes of this act;

(vi)

Require that all application, renewal, licensing, examination and all other fees included under this act, except the amount paid for data processing by a nationwide licensing system and database, shall be deposited by the commissioner with the state treasurer into the financial institutions administration account;

(vii)

Require a background investigation including fingerprint checks for state and national criminal history record checks as necessary. The commissioner may utilize background checks completed by the division of criminal investigation, other government agencies in
Wyoming
or in other states, the federal bureau of investigation or a nationwide licensing system;

(
vii
i)

Determine the content of application forms and the means by which an applicant applies for, renews or makes changes to a license under this act. The commissioner may require applicants to utilize a nationwide licensing system and database for the processing of applications and fees
;

(ix)

Act on complaints, or take action designed to obtain voluntary compliance with this act;

(x)

Require the collection agency to reimburse the consumer for any amounts paid

in excess of lawful amounts expressly authorized by the agreement creating the debt or permitted by law;

(xi)

Require the collection agency to reimburse the creditor for any amounts not paid as expressly authorized by the agreement between the collection agency and the creditor
.

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104.

License or notification requirements.

(a)

With the exception of those persons exempt from the provisions of this act pursuant to W.S. 40
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25
‑
105 or exempt from licensing pursuant to paragraph (a)(ii) or subsection (b) of this section, no
person
shall
engage in debt collection without
first obtaining
a collection agency license
in accordance with this act if he is
located
:

(i)

W
ithin
Wyoming
;

(ii)

O
utside
Wyoming
and collects or attempts to collect
more than ten (10) times in a calendar year
from consumers who are
Wyoming
residents; or

(iii)

O
utside
Wyoming
and solicits or attempts to solicit debts for collection from a creditor with a place of business located within
Wyoming
.

(b)

A person is not subject to the license requirement in subsection (a) of this section if the collection activity is limited to collecting debts not incurred in this state from consumers located in this state and whose collection activities are conducted by means of interstate communications, including telephone, mail or facsimile transmission, and who is located in another state that regulates and licenses collection agencies but does not require Wyoming collection agencies to obtain a license to collect debts in their state if such agencies
'
collection activities are limited in the same manner.

(c)

Any person engaged in debt collection who is exempt from licensing pursuant to paragraph (a)(ii) or subsection (b) of this section shall provide the commissioner with written notification, as set by rule of the commissioner, within ten (10) business days after commencing collection activities in each year that collections are made or attempted.

(d)

Any person required to provide written notification to the commissioner pursuant to subsection (b) or (c) of this section shall provide an annual report of the number of collections made or attempted during the previous calendar year, as set by rule of the commissioner. The report shall be provided to the commissioner no later than January 15 of each year.

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5
‑
105.

Exemptions from license requirements.

(a)

The provisions of this act do not apply to:

(i)

Any officer or employee of a creditor while, in the name of the creditor, collecting debts for and in the name of the creditor;

(ii)

Any person while acting as a debt collector for another person, both of whom are related by common ownership or affiliated by corporate control, if the person acting as a debt collector does so only for persons to whom it is so related or affiliated
, if the debt is collected in the same company name
and if the principal business of
the
person is not the collection of debts;

(iii)

Any officer or employee of the
United
States
,
any state
or any political subdivision

to the extent that collecting or attempting to collect any debt is in the performance of his official duties;

(iv)

Any person while serving or attempting to serve legal process
on
any other person in connection with the judicial enforcement of any debt;

(v)

Any person collecting or attempting to collect any debt
owed
or due or asserted to be owed or due another to the extent
the
activity
:

(A)

Is incidental to a bona fide fiduciary obligation or a bona
fide
escrow arrangement;

(B)

Concerns
a debt which was originated by
the
person;

(C)

Concerns
a debt that was not in default at the time it was obtained by
the
person
; or

(D)

C
oncerns a debt obtained by
the
person as a secured party in a commercial credit transaction involving the creditor.

(vi
)

Any person whose business is a credit card servicing company;

(vii)

Any person whose business is a mortgage servicing company;

(viii)

Any person engaged solely in the collection of one (1) or more business debts;

(ix)

Any licensed attorney acting in an attorney

client relationship with a creditor who conducts debt collection activities in the name of the creditor.

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106.

Application for license to do business as a collection agency.

(a)

The commissioner shall receive and act on all applications for licenses to do business as a collection agency. Applications shall be filed in the manner prescribed by the commissioner, shall contain
the
information as prescribed by the commissioner, shall be updated as prescribed by the commissioner to keep the information current, and shall be accompanied by an application fee not to exceed one thousand dollars ($1,000.00) for the home office location and an amount not to exceed one hundred dollars ($100.00) for each additional
branch
location, as set by the commissioner
pursuant to W.S. 40
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25
‑
109(a)
. When an application for licensure is denied or withdrawn, the commissioner shall retain all fees paid by the applicant.

(b)

An application for license may be granted if the commissioner finds:

(i)

The financial responsibility and experience, character and fitness of the license applicant, of the owners or persons in charge of the applicant and individuals designated in charge of the applicant
'
s places of business, are such as to warrant belief that the business will be operated honestly and fairly within the purposes of this act;

(ii)

The applicant has not been convicted of a felony, pl
ed guilty or nolo contendere to
a felony in a domestic, foreign or military court during the seven (7) year period preceding the date of the application for licensing, or at any time preceding
the
date of application if
the
felony involved an act of fraud, dishonesty, breach of trust or money laundering;

(iii)

The applicant has not been convicted of, pled guilty or nolo contendere to a misdemeanor in a domestic, foreign or military court involving an act of fraud, dishonesty, breach of trust or money laundering;

(iv)

The applicant has not been the subject of any administrative action or enforcement proceeding by any state or federal government agency involving the revocation of any license or authority substantially equivalent to a license under this act;

(v)

The applicant has not filed an application for a license which is false or misleading with respect to any material fact;

(vi)

The applicant has provided information on the application as required by the commissioner pursuant to subsection (a) of this section.

(c)

The commissioner is empowered to conduct investigations as deemed necessary to determine the existence of the requirements in subsection (b) of this section.

(d)

Within ten (10) business days of receiving the application, the commissioner shall notify the applicant by certified mail, return receipt requested, if the application is complete or to request additional information.

(e)

Within thirty (30) days of determining that an application is complete, the commissioner shall approve or deny the application and shall notify the applicant of the approval or denial by certified mail, return receipt requested. The applicant shall have thirty (30) days from the receipt of denial of the application to request a hearing on the denial.

(f)

If a hearing is held

and the commissioner is the prevailing party,
the applicant shall reimburse, pro rata, the commissioner for his reasonable and necessary expenses incur
red as a result of the hearing.

(g)

Every licensee shall license and maintain a home office as a principal location for the transaction of debt collection business. A separate license shall be required for each place of business
located within the state of
Wyoming

from which debt collection
business is
directly or indirectly conducted
with
Wyoming
consumers
.

The commissioner may issue additional
branch
licenses to the same applicant upon compliance with all the provisions of this act governing the issuance of a single license. Each license shall remain in full force and effect unless the licensee does not satisfy the renewal requirements of W.S.
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108
, or the license is relinquished, suspended or revoked.
All branch l
icenses shall be terminated upon the relinquishment or revocation of a home office license.

(h)

Licenses shall be prominently displayed at the place of bu
siness identified on the license.

(j)

No licensee shall change the location of any place of business, consolidate two (2) or more locations, open a new location or close any location, without giving the commissioner prior written notice and paying a license modification fee not to exceed one hundred dollars ($100.00) as set by rule of the commissioner

pursuant to W.S. 40
‑
25
‑
109(a).

(k)

A licensee shall not engage in the business of debt collection at any place of business for which he does not hold a license.

(m)

The commissioner may suspend action upon a license application pending resolution of any criminal charges, before any court of competent jurisdiction, against an applicant that would disqualify that applicant if convicted.

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5
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10
7
.

Change in control of a licensee.

(a)

A licensee shall give the commissioner written notice of a proposed change of control of a licensee within fifteen (15) business days after learning of the proposed change of control.

(b)

The commissioner may require the licensee to provide additional information concerning the proposed persons in control of the licensee. The additional information shall be limited to the same information required of the licensee or persons in control of the licensee as part of its original license or renewal application.

(c)

U
pon a change in the control of the licensee
t
he licensee shall reapply and submit the required fees, not to exceed one thousand dollars ($1,000.00) for a home office location and an amount not to exceed one hundred dollars ($100.00) for each additional
branch
location as determined by the commissioner

pursuant to W.S. 40
‑
25
‑
109(a)
. The license is not transferable nor assignable to the new persons in control of the licensee.

(d)

Before filing a request for approval to acquire control, a person may request in writing a determination from the commissioner as to whether the person would be considered a person in control of a licensee upon consummation of a proposed transaction. If the commissioner determines that the person would not be a person in control of a licensee, the commissioner shall enter an order stating the proposed person and transaction is not subject to the requirements of subsections (a) through (c) of this section.

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10
8
.

License renewal and annual report.

(a)

Each license issued under this act shall expire on December 31. The license shall be renewed annually not less than thirty (30) days before the stated expiration date. The renewal fee for each license shall not exceed one thousand dollars ($1,000.00) for the home office location and an amount not to exceed one hundred dollars ($100.00) for each additional
branch
location, as set by the commissioner

pursuant to W.S. 40
‑
25
‑
109(a)
.

(b)

The licensee shall have a thirty-one (31) day grace period to reinstate each expired license. In addition to paying the renewal fee pursuant to subsection (a) of this section, the commissioner may establish a late fee not to exceed one hundred dollars ($100.00) for each license reinstatement, as set by the commissioner pursuant to W.S. 40
‑
25
‑
109(a). If the license has not been reinstated before February 1 of the new license period, it shall not be eligible for reinstatement until the applicant has met all the requirements of W.S. 40
‑
25
‑
106.

(c)

The renewal fee shall be accompanied by a report, in a form prescribed by the commissioner
.

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1
09
.

F
ees.

(a)

Except as otherwise specifically provided by statute, the commissioner is authorized to establish application, examination, license
,
renewal fees
or late fees f
or collection agencies regulated under this act and shall establish those fees in accordance with the following:

(i)

Fees shall be established by rule or regulation promulgated in accordance with the Wyoming Administrative Procedure Act;

(ii)

Fees shall be established in an amount to ensure that, to the extent practicable, the total revenue generated from the fees collected approximates, but does not exceed, the direct and indirect costs of administering the regulatory provisions required for collection agencies under this act;

(iii)

The commissioner shall maintain records sufficient to support the fees charged.

(b)

All application,
examination,
licensing
and
renewal fees
collected by the commissioner
shall be deposited with the state treasurer
, who shall credit the money to the financial institutions administration
account.
All monies paid into the account are appropriated to the use of the division for the payment of all necessary expenses incurred in the administration of this act.

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110.

Security
devices.

(a)

All licensees shall maintain a
security device

payable
to the state of
Wyoming
in accordance with this section. The
security device
to be maintained shall be in the amount of twenty-five thousand dollars ($25,000.00). This amount shall be increased by an additional sum of five thousand dollars ($5,000.00) for each licensed office.

(b)

A surety
bond shall be a continuing obligation of the issuing surety. The surety
'
s liability under the bond for any claims made under the bond either individually or in the aggregate shall in no event exceed the face amount of the bond issued. The bond shall be issued by a surety authorized to do business in the state of
Wyoming
. The bond, including any and all riders and endorsements executed subsequent to the effective date of the bond, shall be placed on file with the
banking

commissioner
.

(c)

Any cash deposit in lieu of a surety bond shall be placed on deposit with the state treasurer.

(
d
)

In the event that a licensee has violated any of the provisions of this act or of a rule or order lawfully made pursuant to this act, or federal law or regulation pertaining to collections, and has damaged any person by
the
violation, then
the
security device
shall be forfeited and paid to the state of Wyoming for the benefit of any person so damaged, in an amount sufficient to satisfy the violation or the
security device
in its entirety if the violation exceeds the amount of the
security device
.

(e)

The
security device
shall be conditioned that the principal, as a licensee under this act, shall pay and turn over to or for the use of any claimant from whom any debt is taken or received for collection, the proceeds of the collection less the charges for collection in accordance with the terms of the agreement made between the principal and the claimant.

(
f
)

Surety bonds shall remain effective continuously until released in writing by the
banking

commissioner. If a bond has not been previously released by the
banking
commissioner, the bond shall expire two (2) years after the date of the surrender, revocation or expiration of the license.

(g)

A cash deposit allowing a licensee to earn interest on the deposit shall be held with the state treasurer until released in writing by the banking commissioner. If a cash deposit has not been previously released by the banking commissioner, the deposit shall be released back to the depositor two (2) years after the date of the surrender, revocation or expiration of the license.

(h)

A licensee may file a new bond with the
banking
commissioner at any time. A surety company may file with the
banking
commissioner notice of its withdrawal as surety of any licensee. Upon the filing of a new bond or a notice of withdrawal, the liability of the former surety for all future acts of the licensee shall terminate except as provided in subsection (f) of this section.

(j)

Upon filing notice with the
banking
commissioner by any surety company of its withdrawal as the surety of any licensee, or upon the revocation by the insurance commissioner of the authority of any surety company to transact business in
Wyoming
, the
banking
commissioner shall immediately give notice to the licensee of the withdrawal or revocation. Within thirty (30) days from the date of notification the licensee shall file a new
security device
with the
banking
commissioner. If a licensee fails to file a new
security device
satisfactory to the
banking c
ommissioner within the time allowed, the right of the licensee to conduct a collection agency shall terminate.

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1
.

Examinations and investigations.

(a)

The commissioner may conduct examinations of any licensee under this act he deems necessary
in response to reasonable suspicion
to determine compliance with this act and other applicable laws, rules and regulations.

(b)

The commissioner may at any time investigate the business books and records of any licensee or person engaged in
debt collection
activities for the purpose of determining compliance with this act or securing information required under this act. For these purposes, the commissioner shall have free and reasonable access to the offices, places of business, books and records of the licensee.

(c)

If a licensee
'
s or person
'
s records are located outside
Wyoming
, the licensee or person shall have the option to make them available to the commissioner at a convenient location within
Wyoming
, or pay the reasonable and necessary expenses for the commissioner or his representative to examine them at the place where they are maintained. The commissioner may designate representatives, including comparable officials of the state in which the records are located, to inspect them on his behalf.

(d)

Each licensee or person subject to examination or investigation under this act shall pay to the commissioner an amount assessed by the commissioner to cover the direct and indirect cost of examinations or investigations conducted pursuant to this section not to exceed one hundred dollars ($100.00) per hour.

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2
.

Records; confidentiality of records;
cooperative agreements
.

(a)

Every licensee shall maintain records in conformity with generally accepted accounting principles in a manner that will enable the commissioner to determine whether the licensee is complying with the provisions of this act. The recordkeeping system of a licensee shall be sufficient if he makes the required information available. The records need not be kept in the place of business where
debt collection activities
are
conducted
, if the commissioner is given free access to
the records wherever located.

(b)

Every licensee shall keep a record of
each collection account, including but not limited to all collections
and all disbursements made by t
he licensee,
for a period of
two
(
2
) years from t
he date of last entry in each collection account.

(c)

The records of a licensee may be maintained electronically provided they can be reproduced
in writing
upo
n request of the commissioner.

(d)

No licensee may intentionally make any false entry in any collection agency record or intentionally mutilate, destroy or otherwise dispose of any
collection
record within the time limit provided in
subsection (b) of
this section.

(
e
)

Except as provided in subsection (f) of this section, all information or reports obtained by the commissioner from an applicant or licensee are confidential.

(f)

Except as provided in P.L. 110-289, section 1512, the requirements under any federal law or state law regarding the privacy or confidentiality of any information or material provided to
any national
registry, and any privilege arising under federal or state law, including the rules of any federal or state court, with respect to
the
information or material, shall continue to apply to
the
information or material after the information or material has been disclosed to
any national
registry.
The
information and any other confidential material obtained by the commissioner may be shared with all state and federal regulatory officials with
collection agency
industry oversight authority without the loss of privilege or the loss of confidentiality protections provided by federal law or any state law.

(g)

Information or material that is subject to a privilege or confidentiality under subsection (f) of this section shall not be subject to:

(i)

Disclosure under any federal or state law governing the disclosure to the public of information held by an officer or agency of the federal government or the respective state; or

(ii)

Subpoena, discovery or admission into evidence, in any private civil action or administrative process, unless with respect to any privilege held by the registry with respect to
the
information or material, the person to whom
the
information or material pertains waives that privilege, in whole or in part.

(h)

Any
Wyoming
law relating to the disclosure of confidential supervisory information or any information or material described in subsection (f) of this section that is inconsistent with subsection (f) of this section shall be superceded by the requirements of this section.

(j)

This section shall not apply with respect to the information or material relating to the employment history of, and publicly adjudicated disciplinary and enforcement actions against, any
collection agency
that is included in the registry for access by the public.

(
k
)

The commissioner may disclose confidential information to
collection supervising
agencies in other states or to federal regulatory authorities or to appropriate prosecuting attorneys.

(
m
)

The commissioner may enter into cooperative, coordinating or information sharing agreements with any other
collection
supervisory agency or any organization affiliated with or representing one (1) or more
collection supervisory
agencies with respect to the periodic examination or other supervision of any office in Wyoming of an out-of-state licensee, and the commissioner may accept
the
parties
'
reports of examination and reports of investigation in lieu of conducting his own examinations or investigations.

(
n
)

The commissioner may enter into contracts with any
collection

supervisory
agency having concurrent jurisdiction over a
Wyoming
licensee pursuant to this act to engage the services of the agency
'
s examiners at a reasonable rate of compensation. Any such contract shall not be subject to the provisions of W.S. 9-2-1016(b).

(
o
)

This section does not prohibit the commissioner from disclosing to the public a list of persons licensed under this act.

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11
3
.

Trust accounts.

(a)

Each licensee shall maintain
a trust account for the benefit of its clients which shall contain at all times sufficient funds to pay all sums due or owed to clients. The trust account shall be maintained in a financial institution which is insured by the
f
ederal
d
eposit
i
nsurance
c
orporation or the
n
ational
c
redit
u
nion
a
dministration, until disbursed to the creditor.
The trust
account shall be clearly designated as a trust account
, shall be noninterest bearing
and shall be used only
to pay the sums due or owed to clients

an
d not as an operating account.

(b)

A deposit of all funds received to a trust account followed by a transfer of the agency share of the collection to an operating account is
not a violation of this act.

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11
4
.

Prohibited practices.

(a)

No licensee or person r
equired to have a license shall:

(i)

U
se any collection letter, demand or notice that simulates a legal process or purports to be from any local, city, county, state or g
overnment authority or attorney;

(ii)

R
efuse or fail to comply with this act;

(iii)

R
efuse or fail to comply with a rule adopted pursuant to this act or any lawf
ul order of the commissioner;

(iv)

A
id or abet any person operating or attempting to operate in violation of this act, except that nothing in this act shall prevent any licensed collection agency from accepting, as forwarded, claims for collection from any collection agency or attorney whose place of business is outside
Wyoming;

(v)

R
ender or advertise that it will render legal services
,

unless the licensee is a lawyer,
except that a licensee may solicit claims for collection and take assignments and pursue the collection thereof subject to the provisions of law concerning t
he unauthorized practice of law;

(vi)

F
alsify any information or make any misleading statements in any applic
ation authorized under this act; or

(vii)

V
iolat
e
any provisions of the federal Fai
r Debt Collection Practices Act
.

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11
5
.

License suspension or revocation.

(a)

The commissioner may suspend, not to exceed six (6) months, or revoke a license if the commissioner finds:

(i)

Any fact or condition exists that, if it had existed at the time when the licensee applied for its license, would have been grounds for denying the application;

(ii)

The licensee violated any provision of this act or any rule or order validly promulgated by the commissioner;

(iii)

The licensee is conducting its business in an unsafe or unsound manner;

(iv)

The licensee refuses to permit the commissioner to make any examination authorized by this act;

(v)

The licensee willfully fails to make any report required by this act;

(vi)

The competence, experience, character or general fitness of the licensee indicates that it is not in the public interest to permit the licensee to continue to conduct business;

(vii)

The bond of the licensee has been revoked, cancelled, expired or otherwise is not effective;

(viii)

The licensee or any partner, officer, director
or
manager of the licensee has been convicted of a
ny
felony or
convicted of a
misdemeanor involving any aspect of the
debt collection
business, breach of trust, or fraudulent or dishonest dealing;

(ix)

The licensee or any partner, officer, director
or
manager of the licensee has had a license substantially equivalent to a license under this act, and issued by another state, denied, revoked or suspended under the laws of that state;

(x)

The licensee has filed an application for a license which as of the date the license was issued, or as of the date of an order denying, suspending or revoking a license, was incomplete in any material respect or contained any statement that was, in light of the circumstances under which it was made, false or misleading with respect to any material fact.

(b)

Notwithstanding any provision of the Wyoming Administrative Procedure Act, if the commissioner finds that probable cause for revocation of a license exists and that enforcement of this act and the public interest require immediate suspension of the license pending investigation, he may, after a hearing upon five (5) days written notice, enter an order suspending the license for not more than thirty (30) days.

(c)

The commissioner may, in his discretion, reinstate a license, terminate a suspension or grant a new license to a person whose license has been revoked or suspended if no fact or condition then exists which clearly would justify the commissioner in refusing to grant a license.

40
‑
25
‑
11
6
.

Orders to cease and desist.

(a)

If the commissioner determines that a violation of this act or of a rule adopted or an order issued under this act by a licensee is likely to cause immediate and irreparable harm to the licensee, its customers or the public as a result of the violation or cause insolvency of the licensee, the commissioner may issue an order requiring the licensee to cease and desist from the violation. The order becomes effective upon service upon the licensee.

(b)

If the commissioner determines that a person is conducting
debt collection
activities governed under this act without a valid license, the commissioner may issue an order requiring the unlicensed person to cease and desist from
debt collection
. The order becomes effective upon service upon the unlicensed person.

(c)

Before issuing a final cease and desist order under subsections (a) and (b) of this section, the commissioner shall serve notice of intent to issue the order upon the person being ordered to cease and desist. The notice shall be in writing and shall direct the person to discontinue the violations of law and cease and desist
debt collection
. The notice shall be served by certified mail return receipt requested to the last known address of the person or shall be served as provided by the Wyoming Rules of Civil Procedure. Notice of the order shall include:

(i)

A statement of the grounds for issuing the proposed order, including a citation to the statute or rule involved;

(ii)

A statement of the facts in support of the allegations;

(iii)

A statement informing the person of the right to a hearing on the order.

(d)

In an emergency, the commissioner may petition the district court for the issuance of a temporary restraining order.

(e)

An order to cease and desist becomes effective upon service upon the person.

(f)

An order to cease and desist remains effective and enforceable pending the completion of an administrative proceeding pursuant to the Wyoming Administrative Procedure Act.

(g)

A person served with an order to cease and desist for violating this act may petition the district court for a judicial order setting aside, limiting or suspending the enforcement, operation or effectiveness of the order pending the completion of an administrative proceeding pursuant to the Wyoming Administrative Procedure Act.

(h)

The commissioner shall commence a contested case proceeding within twenty (20) days after issuing an order to cease and desist.

40
‑
25
‑
11
7
.

Consent orders.

The commissioner may enter into a consent order at any time with a person to resolve a matter arising under this act. A consent order shall be signed by the person to whom it is issued or by the person
'
s authorized representative and shall indicate agreement with the terms contained in the order. A consent order may provide that it does not constitute an admission by a person that this act or a rule adopted or an order issued under this act has been violated.

40
‑
25
‑
11
8
.

Civil penalties.

The commissioner may impose a civil penalty upon a person who violates this act or a rule adopted or an order issued under this act in an amount not to exceed five hundred dollars ($500.00) per day for each day the violation is outstanding, plus the state
'
s costs and expenses for the investigation and prosecution of the matter, including reaso
nable attorney
'
s fees.
Any civil penalties collected pursuant to this section shall be paid to the state treasurer and credited as provided in W.S. 8
‑
1
‑
109.

40
‑
25
‑
11
9
.

Criminal penalties.

(a)

A person who intentionally makes a false statement, misrepresentation or false certification in a record filed or required to be maintained under this act or who intentionally makes a false entry or omits a material entry in the record is guilty of a felony, punishable by not less than three (3) years imprisonment or a fine of not less than ten thousand dollars ($10,000.00), or both.

(
b)

A person
who knowingly engages in any activity for which a license is required under this act, without being licensed under this act is guilty of a misdemeanor punishable by a fine of not less than twenty-five thousand dollars ($25,000.00).

40
‑
25
‑
1
20
.

Hearings.

Except as otherwise provided in W.S.
40
‑
2
5
‑
103(a)
(x) and
(
x
i), 40
‑
2
5
‑
10
7
(c) and 40
‑
2
5
‑
10
8
,
the commissioner shall not suspend or revoke a license, issue an order to cease and desist or assess a civil penalty without notice and an opportunity to be heard.

Section
2
.

W.S.

33
‑
11
‑
103, 33
‑
11
‑
104, 33
‑
11
‑
114 and 33
‑
11
‑
116 are repealed.

Section
3
.

(a)

It is the intention and direction of the legislature that:

(i)

All duties of the
collection agency board
with respect to
collection agencies
be transferred to the
banking division of the department of audit
. Effective July 1, 20
1
0, all duties of the
collection agency board
with respect to
collection agencies
not assumed by the
banking division
are terminated;

(ii)

Any contract, agreement or obligation entered into or assumed by the
collection agency board
with respect to
collection agencies
, if the execution or assumption was within the lawful powers of the
collection agency board
, be assumed by the
banking division
;

(iii)

Any rule adopted by the
collection agency board
with respect to
collection agencies
remain in effect unaltered as rule of the
banking division
until amended or repealed by the
banking division
.

Section
4
.

There is transferred from the
collection agency board
to the
banking division of the department of audit
any appropriated or unexpended funds not otherwise obligated and any other property, if any, exclusively dedicated to
collection agencies
.

Section 5.

This act is effective July 1, 2010.

(END)

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HB0042