Collection agencies.

WORKING DRAFT
2011
STATE OF
WYOMING
11LSO-0017.E1

HOUSE BILL

NO.
HB0108

Collection agencies.

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

A BILL

for

AN ACT relating to collection agencies; providing for consumer
and creditor
protection in collection transactions;
providing for reimbursement to consumers and creditors as required;
modifying requirements of the
collection agency
program;
providing for fees, penalties and generally revising provisions regulating collection agencies and debt collections;
modifying the function of the collection agency board;
repealing existing provisions;
and providing for an effective date.

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

Section
1.

W.S.
40
‑
25
‑
101 through 40
‑
25
‑
121 are created to read:

CHAPTER 25
COLLECTION AGENCIES

40
‑
25
‑
101.

Short title.

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

40
‑
25
‑
102.

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)

"Board" means the collection agency board created by W.S. 40
‑
25
‑
103;

(iv)

"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;

(v)

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

(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 shares of the licensee or having the power to direct the licensee's management or policies;

(
i
x)

"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 any person to the extent that the person receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection 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
)

Collecting or attempting to collect, directly or indirectly, debts owed or due or asserted to be owed or due another;

(
B
)

Taking an assignment of or purchasing debts in default for collection purposes
and taking any affirmative action to collect the debts
;

(
C
)

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

(
D
)

Using any name other than his own name when in the process of collecting his own debts.

(xi
ii
)

"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;

(x
i
v)

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

(xv)

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

(xvi)

"Individual" means a natural person;

(x
vii
)

"Licensee" means a person licensed under this act;

(x
viii
)

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

(x
i
x)

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

(xx)

"Resident manager" means an individual who is a bona fide resident of Wyoming and who is employed by or under contract with a collection agency to gather and distribute information pertinent to the debt collection business between the commissioner, the collection agency and consumers;

(x
xi
)

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

(xxi
i
)

"This act" means W.S. 40
‑
25
‑
101 through 40
‑
25
‑
121.

40
‑
25
‑
103.

Collection agency board; appointment; membership; meetings; compensation, per diem and travel expenses.

(a)

The collection agency board is created.
For the purpose of carrying out the provisions of this act, the governor shall appoint a
five (5)
person collection agency board.
The director of the
d
epartment of
a
udit shall serve as an ex officio member of the board.

The
appointed
board shall consist of
:

(i)

One (1) member of the board who is an attorney-at-law actively engaged in collection work and licensed to practice law in
Wyoming
;

(ii)

Two (2)
member
s
of the board who
are
officer
s
, partner
s
, owner
s
or
manager
s
of a licensed collection agency;

(iii)

Two
(
2
) member
s
of the board who
are
member
s
of the public at large and
are
neither
an attorney-at-law nor affiliated with a collection agency, but who
are
or ha
ve
been
user
s
of credit or collection services.

(b)

Members of the board shall be appointed for a term of four (4) years.

Members of the board shall serve until their successors are duly appointed and qualified.

(c)

No person shall be appointed as a member of the board who has not been a bona fide resident of the state of
Wyoming
for at least five (5) years immediately prior to his appointment.

The
attorney-at-law

and the officer
s
, partner
s
, owner
s
or manager
s
of a collection agency shall have engaged in the collection business within the state of
Wyoming
for a period of five (5) years immediately prior to appointment. The member
s
of the public at large shall have at least five (5) years experience as user
s
of credit or collection services.

(d)

Upon the death
, resignation or removal of any member of the board, the governor shall appoint a member to serve the remaining unexpired term. Any member of the board may be removed by the governor as provided in W.S. 9
‑
1
‑
202.

(e)

Members of the board shall elect one (1) of their members chairman to serve for a term of two (2) years.

(f)

The board shall meet when called by the commissioner or when requested by a majority of the members of the board. Members of the board shall r
eceive the same salary, mileage
and per diem for attending and traveling to and from board meetings in the same manner and amount as members of the
Wyoming
legislature.
Members shall submit request for reimbursement for salary, mileage and per diem to the division.

40
‑
25
‑
104.

Powers and duties of
the board
.

(a)

The board 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
board
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 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
board
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
board
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;

(viii)

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
board
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 col
lection agency and the creditor;

(xii)

Hire any experts necessary and proper to assist the board in its duties under this act.

40
‑
25
‑
105.

License or notification requirements.

(a)

With the exception of those persons exempt from the provisions of this act pursuant to W.S. 40
‑
25
‑
106
or exempt from licensing pursuant to 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)

Within
Wyoming
;

(ii)

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

(iii)

Outside
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
:

(i)

T
he collection activity is limited to collecting debts not incurred in this state from consumers located in this state
;

(ii)

The
collection activities are conducted by means of interstate communications, including telephone, mail or facsimile transmission
;
and

(iii)

The person:

(A)

I
s located in another state that regulates and licenses collection agencies
; and

(B)

That state
does not require
Wyoming
collection agencies to obtain a license to collect debts in th
at
state if
Wyoming
collection
agencies' collection activities are limited in the same manner.

(c)

Any person engaged in debt collection
shall provide the
board
with written notification, as set by rule of the
board
, within ten (10) business days after commencing collection activities in each year that co
llections are made or attempted if the person:

(i)

Is located o
utside Wyoming and collects or attempts to collect ten (10)
or less
times in a calendar year from consumers who are Wyoming residents
; or

(ii)

Is e
xempt from licensing pursuant to
subsection (b) of this section.

(d)

Any person required to provide written notification to the
board
pursuant to subsection
(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
board
. The report shall be provided to the
board
no later than January 15 of each year.

40
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106.

Exemptions
.

(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
:

(A)

T
he person acting as a debt collector does so only for persons to whom it is so related or affiliated
;

(B)

T
he debt is collected in the same company name
;
and

(C)

T
he 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)

Concerns 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.

40
‑
25
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107.

Application for license to do business as a collection agency.

(a)

The
board
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
board
, shall contain the information as prescribed by the
board
, shall be updated as prescribed by the
board
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
board
pursuant to W.S. 40
‑
25
‑
110
(a). When an application for licensure is denied or withdrawn, the
board
shall retain all fees paid by the applicant.

(b)

An application for license may be granted if the
board
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, pled 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
board
pursuant to subsection (a) of this section
.

(
c
)

The
board
may collect an examination fee not to exceed one hundred dollars ($100.00) as set by rule of the
board
pursuant to W.S. 40
‑
25
‑
110
(a) for each examination given pursuant to

paragraph
(
b
)
(vii)
of this section.

(d
)

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

(e
)

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

(f
)

Within thirty (30) days of determining that an application is complete, the
board
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.

(g
)

If a hearing is held and the
board
is the prevailing party, the applicant shall reimburse the
board
for his reasonable and necessary expenses incurred as a result of the hearing.

(h
)

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 from which debt collection business is directly or indirectly conducted with
Wyoming
consumers. The
board
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. 40
‑
25
‑
1
09
, or the license is relinquished, suspended or revoked. All branch licenses shall be terminated upon the relinquishment or revocation of a home office license.

(j
)

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

(k
)

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
board
pursuant to W.S. 40
‑
25
‑
110
(a).

(
m
)

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

(n
)

The
board
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.

40
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108.

Change in control of a licensee.

(a)

A licensee shall give the
board
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
board
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)

Upon a change in the control of the licensee the 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
board
pursuant to W.S. 40
‑
25
‑
110
(a). The license is not transferable or assignable to the new person 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
board
as to whether the person would be considered a person in control of a licensee upon consummation of a proposed transaction. If the
board
determines that the person would not be a person in control of a licensee, the
board
shall enter an order stating the proposed person and transaction is not subject to the requirements of subsections (a) through (c) of this section.

40
‑
25
‑
109.

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
board
pursuant to W.S. 40
‑
25
‑
110
(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
board
may establish a late fee not to exceed one hundred dollars ($100.00) for each license reinstatement, as set by the
board
pursuant to W.S. 40
‑
25
‑
110
(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
‑
107.

(c)

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

40
‑
25
‑
110.

Fees.

(a)

Except as otherwise specifically provided by statute, the
board
is authorized to establish application, examination, license, renewal fees or late fees for 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
board
shall maintain records sufficient to support the fees charged.

(b)

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

40
‑
25
‑
111.

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
board
.

(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
board
. If a bond has not been previously released by the
board
, 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
board
. If a cash deposit has not been previously released by the
board
, 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
board
at any time. A surety company may file with the
board
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
board

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
board

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
board
. If a licensee fails to file a new security device satisfactory to the
board

within the time allowed, the right of the licensee to conduct a collection agency shall terminate.

40
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‑
112.

Examinations and investigations.

(a)

The
board
may conduct examinations of any licensee under this act at intervals
it
deems necessary to determine compliance with this act and other applicable laws, rules and regulations.

(b)

The
board
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
board
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
board
at a convenient location within Wyoming, or pay the reasonable and necessary expenses for the
board
or
its
representative to examine them at the place where they are maintained. The
board
may designate representatives, including comparable officials of the state in which the records are located, to inspect them on
its
behalf.

(d)

Each licensee or person subject to examination or investigation under this act shall pay to the
board

an amount assessed by the
board
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.

40
‑
25
‑
113.

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
board
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
board
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 the licensee, for a period of two (2) years from the 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 upon request of the
board
.

(d)

No licensee
shall
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 s
ubsection (b) of this section.

(e)

Except as provided in subsection (f) of this section, all information or reports obtained by the
board
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
board
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
board
may disclose confidential information to collection supervising agencies in other states or to federal regulatory authorities or to appropriate prosecuting attorneys.

(m)

The
board
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
board
may accept the parties' reports of examination and reports of investigation in lieu of conducting his own examinations or investigations.

(n)

The
board
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
board
from disclosing to the public a list of persons licensed under this act.

40
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‑
114.

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 federal deposit insurance corporation or the national credit union administration, 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 and 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.

40
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25
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115.

Prohibited practices.

(a)

No licensee or person required to have a license shall:

(i)

Use any collection letter, demand or notice that simulates a legal process or purports to be from any local, city, county, state or government authority or attorney;

(ii)

Refuse or fail to comply with this act;

(iii)

Refuse or fail to comply with a rule adopted pursuant to this act or any lawful order of the
board
;

(iv)

Aid 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)

Render 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 the unauthorized practice of law;

(vi)

Falsify any information or make any misleading statements in any application authorized under this act; or

(vii)

Violate any provisions of the federal Fair Debt Collection Practices Act.

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25
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116.

License suspension or revocation.

(a)

The
board
may suspend, not to exceed six (6) months, or revoke a license if the
board
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
board
;

(iii)

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

(iv)

The licensee refuses to permit the
board
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 any 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
board
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,
the board
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
board
may, in
its
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
board
in refusing to grant a license.

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25
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117.

Orders to cease and desist.

(a)

If the
board
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
board
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
board
determines that a person is conducting debt collection activities governed under this act without a valid license, the
board
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 d
esist order under subsections (a
) and (
b
) of this section, the
board
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
board
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
board

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

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25
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118.

Consent orders.

The
board
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
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25
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119.

Civil penalties.

The
board
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 reasonable 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.

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25
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120.

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).

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25
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121.

Hearings.

Except as otherwise provided in W.S. 40
‑
25
‑
104(a)(x) and (xi), 40
‑
25
‑
108(c) and 40
‑
25
‑
109, the
board
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
‑
101 through
33
‑
11
‑
116 are repealed.

Section
3
.

This act is effective July 1, 2011.

(END)

1
HB0108