NH-New Hampshire

New Hampshire

NH ST T. XXXI, Ch. 359-D

Chapter 359-D. Credit Services Organizations

Title XXXI. Trade and Commerce (Refs & Annos)

Chapter 359-D. Credit Services Organizations (Refs & Annos)

359-D:1 Short Title.

This chapter may be cited as the "credit services regulation act".

359-D:2 Definitions.

In this chapter:

I. "Buyer" means any natural person who is solicited to purchase or who purchases the services of a credit services organization.

II. (a) "Credit services organization" means any person, who, with respect to the extension of consumer credit by others, sells, provides, or performs, or represents that he can or will sell, provide, or perform, in return for the payment of money or other valuable consideration, a service for the express or implied purpose of:

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

(2) Obtaining an extension of consumer credit for a buyer.

(3) Providing advice or assistance to a buyer with regard to the buyer's credit record, credit history, or credit rating.

(b) "Credit services organization" does not include:

(1) A depository institution whose deposits are insured by the Federal Deposit Insurance Corporation, the Federal Savings and Loan Insurance Corporation, or the National Credit Union Administration Board, or a depository institution chartered by this state.

(2) Any nonprofit organization exempt from taxation under section 501(c)(3) of the Internal Revenue Code.

(3) A real estate broker licensed by this state and acting within the course and scope of his license.

(4) An attorney licensed by this state or another state rendering services within the course and scope of that license.

(5) Any broker-dealer registered with the Securities and Exchange Commission or the Commodity Futures Trading Commission acting within the course and scope of the regulations of these commissions.

(6) Any consumer reporting agency, as defined in RSA 359-B:3, VI, acting within the course and scope of that chapter.

(7) Any person authorized to make loans or extensions of credit under the laws of this state or the United States .

III. "Extension of credit" means 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.

IV. "Person" means any individual, partnership, corporation, trust, estate, cooperative, association, or other entity.

359-D:3 Prohibited Practices.

A credit services organization, its salespersons, agents, and representatives, shall not:

I. Charge or receive any money or other valuable consideration prior to the full and complete performance of the services which the credit services organization has agreed to perform for the buyer, unless the credit services organization has, in conformity to RSA 359-D:8, either obtained a surety bond issued by a surety company admitted to do business in this state or established a trust account at a federally insured bank or savings and loan association located in this state. If a credit services organization is in compliance, the salespersons, agents, and representatives who sell the services of such organization shall not be required to obtain the surety bond or establish the trust account provided for by this chapter.

II. Charge or receive any 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 which is or will be extended to the buyer is upon substantially the same terms as those available to the general public.

III. Make, or counsel or advise any buyer to make, any statement which is untrue or misleading and which is known, or which by the exercise or reasonable care should be known, to be untrue or misleading, to a consumer credit reporting agency or to any person who has extended credit to a buyer or to whom a buyer is applying for an extension of credit, with respect to a buyer's credit worthiness, credit standing, or credit capacity.

IV. Make or use any untrue or misleading representations in the offer or sale of the services of a credit services organization or engage, directly or indirectly, in any act, practice, or course of business which operates or would operate as a fraud or deception upon any person in connection with the offer or sale of the services of a credit services organization.

359-D:4 Information Statement Required.

Prior to the execution of a contract or agreement between the buyer and a credit services organization or prior to the receipt by the credit services organization of any money or other valuable consideration, whichever occurs first, the credit services organization shall provide the buyer a statement in writing, containing all the information required by RSA 359-D:5. The credit services organization shall maintain on file or microfilm for a period of 2 years an exact copy of the statement, personally signed by the buyer, acknowledging receipt of a copy of the statement.

359-D:5 Contents of Information Statement.

The information statement shall include all of the following:

I. A complete and accurate statement of the buyer's right to review any file on the buyer maintained by any consumer credit reporting agency, and the right of the buyer to receive a copy of that file. The statement shall include the statement that a copy of the buyer's file will be furnished free of charge by the consumer credit reporting agency if requested within 30 days of the buyer receiving notice of a denial of credit, and the approximate price the buyer will be charged by the credit reporting agency for a copy of the file.

II. A complete and accurate statement of the buyer's right to dispute the completeness or accuracy of any item contained in any file on the buyer maintained by any consumer credit reporting agency, as provided by RSA 359- D:6.

III. A complete and detailed description of the services to be performed by the credit services organization for or on behalf of the buyer and the total amount the buyer will have to pay, or become obligated to pay, for the services.

IV. If the credit services organization is required to obtain a surety bond or establish a trust account according to RSA 359-D:3, I, the statement shall set forth both of the following:

(a) The buyer's right to proceed against the bond or trust account under the circumstances and in the manner set forth in RSA 359-D:8.

(b) The name and address of the surety company which issued the bond, or the name and address of the depository and the trustee and the account number of the trust account.

359-D:6 Requirements for Contracts.

I. Every 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 all of the following:

(a) A conspicuous statement in size equal to at least 10 point bold type, 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 prior to midnight of the fifth day after the date of the transaction. 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 some other 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, the estimated date by which such services are to be performed, or estimated length of time for performing such services.

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

II. The contract shall be accompanied by a completed form in duplicate, captioned "Notice of Cancellation," which shall be attached to the contract and easily detachable, and which shall contain in type of at least 10 point the following statement written in the same language as used in the contract:

"Notice of Cancellation"

"You may cancel this contract, without any penalty or obligation, within 5 days from the date the contract is signed.

"If you cancel, any payment made by you under this contract will be returned within 5 days following receipt by the seller of your cancellation notice.

"To cancel this contract, mail or deliver a signed and dated

copy of this cancellation notice, or any other written notice, to

________________ at ___________________________________________ not later than

(name of seller) (address of seller) (place of business)

midnight __________.

(date)

"I hereby cancel this transaction."

__________ ___________________________________

(date) (purchaser's signature)

III. A copy of the fully completed contract and all other documents the credit services organization requires the buyer to sign shall be given to the buyer at the time they are signed.

359-D:7 Breach of Contract.

The seller's breach of a contract under this chapter or of any obligation arising therefrom shall constitute a violation of this chapter.

359-D:8 Requirements for Surety Bonds.

If a credit services organization is required to obtain a surety bond or establish a trust account according to RSA 359-D:3, the following procedures shall be applicable:

I. If a bond is obtained, a copy of it shall be filed with the office of the secretary of state. If a trust account is maintained, notification of the depository, the trustee, and the account number shall be filed with the office of the secretary of state.

II. The bond or trust account required shall be in favor of the state for the benefit of any person who is damaged by any violation of this chapter. The bond or trust account shall also be in favor of any person damaged by such practices.

III. Any person claiming against the bond or trust account for a violation of this chapter 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 actual damages and not the punitive damages permitted under RSA 359-D:11. The aggregate liability of the surety or trustee to all persons damaged by a credit services organization's violation of this chapter shall in no event exceed the amount of the trust account or bond.

IV. The bond or the trust account shall be in an amount equal to 5 percent of the total amount of the fees charged buyers by the credit services organization under the contracts entered into between the credit services organization and such buyers during the previous 12 months, but in no case shall the bond be less than $5,000 or more than $25,000. The amount required shall be adjusted once a year, no later than the tenth day of the first month of the credit services organization's fiscal year.

359-D:9 Claiming Waiver of Rights or Exemption.

I. Any waiver by a buyer of the provisions of this chapter shall be deemed contrary to public policy and shall be void and unenforceable. Any attempt by a credit services organization to have a buyer waive rights given by this chapter shall constitute a violation of this chapter.

II. In any proceeding involving this chapter, the burden of proving an exemption or an exception from a definition is upon the person claiming it.

359-D:10 Penalties.

I. Any person who violates any provision of this chapter is guilty of a misdemeanor. The superior court shall have jurisdiction in equity to restrain and enjoin the violation of any provision of this chapter.

II. The duty to institute actions for violation of this chapter, including equity proceedings to restrain and enjoin such a violation, is hereby vested in the consumer protection and antitrust bureau of the department of justice. The attorney general may prosecute misdemeanor actions or institute equity proceedings, or both.

III. This section shall not be deemed to prohibit the enforcement by any person of any right provided by this or any other law.

IV. The misdemeanor provision of this section does not apply to a seller's breach of a contract subject to this chapter.

359-D:11 Damages.

Any buyer injured by a violation of this chapter or by the credit services organization's breach of a contract subject to this chapter may bring any action for recovery of damages. Judgment shall be entered for actual damages, but in no case less than the amount paid by the buyer to the credit services organization, plus reasonable attorney's fees and costs. An award, if the trial court deems it proper, may be entered for punitive damages