NE-Nebraska

State Regulation:

Nebraska

NE ST § 45-801

Neb.Rev.St. § 45-801

NEBRASKA REVISED STATUTES OF 1943

CHAPTER 45. INTEREST, LOANS, AND DEBT

ARTICLE 8. CREDIT SERVICES ORGANIZATIONS

§ 45-801. Act, how cited.

Sections 45-801 to 45-815 shall be known and may be cited as the Credit Services Organization Act.

§ 45-802. Terms, defined.

For purposes of the Credit Services Organization Act:

(1) Buyer shall mean an individual who is solicited to purchase or who purchases the services of a credit services organization;

(2) Consumer reporting agency shall have the meaning assigned by the Fair Credit Reporting Act, 15 U.S.C. 1681a(f);

(3) Credit services organization shall mean a person who, with respect to the extension of credit by others and in return for the payment of money or other valuable consideration, provides or represents that the person can or will provide any of the following services:

(a) Improving a buyer's credit record, history, or rating;

(b) Obtaining an extension of credit for a buyer; or

(c) Providing advice or assistance to a buyer with regard to subdivision (a) or (b) of this subdivision;

(4) Extension of credit shall mean the right to defer payment of debt or to incur debt and defer its payment offered or granted primarily for personal, family, or household purposes; and

(5) Person shall include individual, corporation, company, association, partnership, limited liability company, and other business entity.

§ 45-803. Exemptions.

(1) The following shall be exempt from the Credit Services Organization Act:

(a) A person authorized to make loans or extensions of credit under the laws of this state or the United States who is subject to regulation and supervision by this state or the United States or a lender approved by the United States Secretary of Housing and Urban Development for participation in a mortgage insurance program under the National Housing Act, 12 U.S.C. 1701 et seq.;

(b) A bank or savings and loan association whose deposit or accounts are eligible for insurance by the Federal Deposit Insurance Corporation or a subsidiary of such a bank or savings and loan association;

(c) A credit union doing business in this state;

(d) A nonprofit organization exempt from taxation under section 501(c)(3) of the Internal Revenue Code;

(e) A person licensed as a real estate broker or salesperson under the Nebraska Real Estate License Act acting within the course and scope of that license;

(f) A person licensed to practice law in this state acting within the course and scope of the person's practice as an attorney;

(g) A broker-dealer registered with the Securities and Exchange Commission or the Commodity Futures Trading Commission acting within the course and scope of that regulation;

(h) A consumer reporting agency;

(i) A person whose primary business is making loans secured by liens on real property;

(j) A person, firm, corporation, or association licensed as a collection agency in this state or a person holding a solicitor's certificate in this state acting within the course and scope of that license or certificate; and

(k) A person licensed to engage in the business of debt management pursuant to sections 69-1201 to 69-1217.

(2) The burden of proving an exemption under this section shall be on the person claiming the exemption.

§ 45-804. Prohibited acts.

A credit services organization, a salesperson, agent, or representative of a credit services organization, or an independent contractor who sells or attempts to sell the services of a credit services organization shall not:

(1) Charge a buyer or receive from a buyer money or other valuable consideration before completing performance of all services, other than those described in subdivision (2) of this section, which the credit services organization has agreed to perform for the buyer unless the credit services organization has obtained a surety bond or established and maintained a surety account as provided in section 45-805;

(2) Charge a buyer or receive from a buyer money or other valuable consideration for obtaining or attempting to obtain an extension of credit that the credit services organization has agreed to obtain for the buyer before the extension of credit is obtained;

(3) Charge a buyer or receive from a buyer money or other valuable consideration solely for referral of the buyer to a retail seller who will or may extend credit to the buyer if the credit that is or will be extended to the buyer is substantially the same as that available to the general public;

(4) Make or use a false or misleading representation in the offer or sale of the services of a credit services organization, including (a) guaranteeing to erase bad credit or words to that effect unless the representation clearly discloses that this can be done only if the credit history is inaccurate or obsolete and (b) guaranteeing an extension of credit regardless of the person's previous credit problem or credit history unless the representation clearly discloses the eligibility requirements for obtaining an extension of credit;

(5) Engage, directly or indirectly, in a fraudulent or deceptive act, practice, or course of business in connection with the offer or sale of the services of a credit services organization;

(6) Make or advise a buyer to make a statement with respect to a buyer's credit worthiness, credit standing, or credit capacity that is false or misleading or that should be known by the exercise of reasonable care to be false or misleading to a consumer reporting agency or to a person who has extended credit to a buyer or to whom a buyer is applying for an extension of credit; or

(7) Advertise or cause to be advertised, in any manner whatsoever, the services of a credit services organization without filing a registration statement with the Secretary of State under section 45-806 unless otherwise provided by the Credit Services Organization Act.

§ 45-805. Surety bond or surety account; requirements; action on surety; depository; Secretary of State; powers and duties.

(1) A credit services organization conducting business in this state shall obtain a surety bond or establish a surety account which complies with this section. The bond or account shall be in the amount of one hundred thousand dollars.

(2) If a surety bond is obtained, the bond shall be issued by a surety company authorized to do business in this state and a copy of the bond shall be filed with the Secretary of State. If a surety account is established, the account shall be established and maintained at a federally insured bank or savings and loan association located in this state and notification of the depository, the trustee, and the account number shall be filed with the Secretary of State.

(3) The bond or account shall be in favor of the state for the benefit of any person who is damaged by any violation of the Credit Services Organization Act. The bond or account shall also be in favor of any person damaged by such a violation.

(4) Any person claiming against the bond or account for a violation of the act may maintain an action at law against the credit services organization and against the surety or trustee. The surety or trustee shall be liable only for damages awarded under section 45-810. The aggregate liability of the surety or trustee to all persons damaged by a credit services organization's violation of the act shall not exceed the amount of the bond or account.

(5) A depository holding money in a surety account under the act shall not convey money in the account to the credit services organization that established the account or a representative of the credit services organization unless the credit services organization or representative presents a statement issued by the Secretary of State indicating that subsection (6) of this section has been satisfied in relation to the account. The Secretary of State may conduct investigations and require submission of information as necessary to enforce this subsection.

(6) The bond or account shall be maintained until two years after the date that the credit services organization ceases operation in this state.

§ 45-806. Registration statement; contents; requirements; fee.

(1) A credit services organization shall file a registration statement with the Secretary of State before conducting business in this state. The registration statement shall contain:

(a) The name and address of the credit services organization; and

(b) The name and address of any person who directly or indirectly owns or controls ten percent or more of the outstanding shares of stock in the credit services organization.

(2) The registration statement shall also contain either:

(a) A full and complete disclosure of any litigation or unresolved complaint filed with a governmental authority of this state relating to the operation of the credit services organization; or

(b) A notarized statement that there has been no litigation or unresolved complaint filed with a governmental authority of this state relating to the operation of the credit services organization.

(3) The credit services organization shall update the registration statement within ninety days after the date on which a change in the information required in the statement occurs.

(4) Each credit services organization registering under this section shall maintain a copy of the registration statement in the files of the credit services organization. The credit services organization shall allow a buyer to inspect the registration statement on request.

(5) The Secretary of State may charge each credit services organization that files a registration statement with the Secretary of State a reasonable fee not to exceed one hundred dollars to cover the cost of filing. The Secretary of State shall not require a credit services organization to provide information other than that provided in the registration statement.

§ 45-807. Written statement to buyer; contents; credit services organization; duties.

(1) Before executing a contract or agreement with or receiving money or other valuable consideration from a buyer, a credit services organization shall provide the buyer with a written statement containing:

(a) A complete and detailed description of the services to be performed by the credit services organization for the buyer and the total cost of the services;

(b) A statement explaining the buyer's right to proceed against the surety bond or surety account required by section 45-805;

(c) The name and address of the surety company that issued the bond or the name and address of the depository and the trustee and the account number of the surety account;

(d) A complete and accurate statement of the buyer's right to review any file on the buyer maintained by a consumer reporting agency as provided by the Fair Credit Reporting Act, 15 U.S.C. 1681 et seq.;

(e) A statement that the buyer's file is available for review at no charge on request made to the consumer reporting agency within thirty days after the date of receipt of notice that credit has been denied and that the buyer's file is available for a minimal charge at any other time;

(f) A complete and accurate statement of the buyer's right to dispute directly with the consumer reporting agency the completeness or accuracy of any item contained in a file on the buyer maintained by the consumer reporting agency;

(g) A statement that accurate information cannot be permanently removed from the files of a consumer reporting agency;

(h) A complete and accurate statement of when consumer information becomes obsolete and of when consumer reporting agencies are prevented from issuing reports containing obsolete information; and

(i) A complete and accurate statement of the availability of nonprofit credit counseling services.

(2) The credit services organization shall maintain on file, for a period of two years after the date the statement is provided, an exact copy of the statement, signed by the buyer, acknowledging receipt of the statement.

§ 45-808. Contract; requirements; cancellation; procedure; notice; breach; effect.

(1) Each contract between the buyer and a credit services organization for the purchase of the services of the credit services organization shall be in writing, dated, and signed by the buyer and shall include:

(a) A statement in type that is boldface, capitalized, underlined, or otherwise set out from surrounding written materials so as to be conspicuous, in immediate proximity to the space reserved for the signature of the buyer, as follows: "You, the buyer, may cancel this contract at any time before midnight of the third day after the date the contract is signed. See the attached notice of cancellation form for an explanation of this right.";

(b) The terms and conditions of payment, including the total of all payments to be made by the buyer, whether to the credit services organization or to another person;

(c) A full and detailed description of the services to be performed by the credit services organization for the buyer, including all guarantees and all promises of full or partial refunds, and the estimated length of time, not to exceed one hundred eighty days, for performing the services; and

(d) The address of the credit services organization's principal place of business and the name and address of its agent in the state authorized to receive service of process.

(2) The credit services organization shall return any payment made by a buyer under the contract if the buyer cancels the contract within three days after it is signed. The payment shall be returned within ten days after the date the organization receives the cancellation notice from the buyer.

(3) The contract shall have attached two easily detachable copies of a notice of cancellation. The notice shall be in boldface in the following form:

Notice of Cancellation

You may cancel this contract, without any penalty or obligation, within three days after the date the contract is signed.

If you cancel, any payment made by you under this contract will be returned within ten days after the date of receipt by the seller of your cancellation notice.

To cancel this contract, mail or deliver a signed, dated copy of this cancellation notice or other written notice to: (name of seller) at (address of seller) (place of business) not later than midnight (date) I hereby cancel this transaction.

(date) .ce(purchaser's signature)

(4) The credit services organization shall give to the buyer a copy of the completed contract and all other documents the credit services organization requires the buyer to sign at the time they are signed.

(5) The breach by a credit services organization of a contract under the Credit Services Organization Act or of any obligation arising from a contract under the act shall be a violation of the act.

§ 45-809. Waiver of rights; void.

A credit services organization shall not attempt to cause a buyer to waive a right under the Credit Services Organization Act. A purported waiver by a buyer of any part of the act shall be void.

§ 45-810. Damages.

A buyer injured by a violation of the Credit Services Organization Act may bring an action for recovery of damages. The damages awarded shall not be less than the amount paid by the buyer to the credit services organization plus reasonable attorney's fees and court costs.

§ 45-811. Violation; injunction.

The Attorney General or a buyer may bring an action in district court to enjoin a violation of the Credit Services Organization Act.

§ 45-812. Violation; deceptive trade practice.

A violation of the Credit Services Organization Act shall be a deceptive trade practice under the Uniform Deceptive Trade Practices Act.

§ 45-813. Statute of limitations.

An action may not be brought under section 45-810 or 45-812 after four years after the date of the execution of the contract for services to which the action relates.

§ 45-814. Violation; penalty.

A person who violates the Credit Services Organization Act shall be guilty of a Class II misdemeanor.

§ 45-815. Remedies.

The remedies provided by the Credit Services Organization Act shall be in addition to other remedies provided by law.