GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2005
SESSION LAW 2005-408
SENATE BILL 590
AN ACT to further protect consumers seeking assistance with Managing their debts.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 14-426 reads as rewritten:
"§ 14-426. Certain persons and transactions not deemed debt adjusters or debt adjustment.
The following individuals or transactions shall not be deemed debt adjusters or as being engaged in the business or practice of debt adjusting:
(1) Any person or
individual who is a regular full-time employee of a debtor, and who acts as an
adjuster of his employer's debts;debts.
(2) Any person or
individual acting pursuant to any order or judgment of a court, or pursuant to
authority conferred by any law of this State or of the United States;States.
(3) Any person who is a
creditor of the debtor, or an agent of one or more creditors of the debtor, and
whose services in adjusting the debtor's debts are rendered without cost to the
debtor;debtor.
(4) Any person who at the
request of a debtor, arranges for or makes a loan to the debtor, and who, at
the authorization of the debtor, acts as an adjuster of the debtor's debts in
the disbursement of the proceeds of the loan, without compensation for the
services rendered in adjusting such debts;debts.
(5) An intermittent or casual adjustment of a debtor's debts, for compensation, by an individual or person who is not a debt adjuster or who is not engaged in the business or practice of debt adjusting, and who does not hold himself out as being regularly engaged in debt adjusting.
(6) An attorney-at-law licensed to practice in this State who is not employed by a debt adjuster.
(7) An organization that provides credit counseling, education, and debt management services to debtors if the organization also does all of the following:
a. Provides individualized credit counseling and budgeting assistance to the debtor without charge prior to the debtor's enrollment in a debt management plan provided by the organization.
b. Determines that the debtor has the financial ability to make payments to complete the debt management plan and that the plan is suitable for the debtor.
c. Disburses the debtor's funds to creditors pursuant to a debt management plan that the debtor has paid for with no more than nominal consideration and has agreed to in writing.
d. Provides to the debtor, periodically and on no less than a quarterly basis, an individualized accounting for the most recent period of all of the debtor's payments and disbursements under the debt management plan and all charges paid by the debtor.
e. Does not directly or indirectly require the debtor to purchase other services or materials as a condition to participating in the debt management plan.
f. Does not receive a payment, commission, or other benefit for referring the debtor to a provider of services.
g. Is accredited by an accrediting organization that the Commissioner of Banks approves as being independent and nationally recognized for providing accreditation to organizations that provide credit counseling and debt management services."
SECTION 2. G.S. 14-423 reads as rewritten:
"§ 14-423. Definitions.
(a) As used in
this Article certain terms or words are hereby defined as follows:Article,
the following definitions apply:
(1) The term "debt"Debt
adjuster" means a person who engages in, attempts to engage in, or offers
to engage in the practice or business of debt adjusting as said term is
defined in this Article.adjusting.
(2) The term "debt"Debt
adjusting" shall mean themeans entering into or making of
a contract, express or implied, with a particular debtor whereby the debtor
agrees to pay a certain amount of money periodically to the person engaged in
the debt adjusting business and who shallthat person, for a consideration,
agree agrees to distribute, or distribute distributes the
same among certain specified creditors in accordance with a plan agreed upon. The
term "debt adjusting" is further defined and shall also meanDebt
adjusting includes the business or practice of any person who holds himself
out as acting or offering or attempting to act for a consideration as an
intermediary between a debtor and his creditors for the purpose of settling,
compounding, or in anywise any way altering the terms of payment
of any debt of a debtor, and to that end receives money or other property from
the debtor, or on behalf of the debtor, for the payment to, or distribution
among, the creditors of the debtor. Debt adjusting also includes the
business or practice of debt settlement or foreclosure assistance whereby any
person holds himself or herself out as acting for consideration as an
intermediary between a debtor and the debtor's creditors for the purpose of
reducing, settling, or altering the terms of the payment of any debt of the
debtor, whether or not the person distributes the debtor's funds or property
among the creditors, and receives a fee or other consideration for reducing,
settling, or altering the terms of the payment of the debt in advance of the
debt settlement having been completed or in advance of all the services agreed
to having been rendered in full.
(3) The term or word
"debtor""Debtor" means an individual,individual
who resides in North Carolina, and includes two or more individuals who are
jointly and severally severally, or jointly or severally severally,
indebted to a creditor or creditors.
(3a) "Nominal consideration" means a fee or a contribution to cover the cost of administering a debt management plan not to exceed forty dollars ($40.00) for origination or setup of the debt management plan and ten percent (10%) of the monthly payment disbursed under the debt management plan, not to exceed forty dollars ($40.00) per month.
(4) The word
"person"Person" means an individual, firm,
partnership, limited partnership, corporation corporation, or
association."
SECTION 3. G.S. 14-425 reads as rewritten:
"§ 14-425. Enjoining practice of debt adjusting; appointment of receiver for money and property employed.
The superior court shall have jurisdiction, in an action
brought in the name of the State by the Attorney General or the district
attorney of the prosecutorial district as defined in G.S. 7A-60, to enjoin
any person from acting, offering to act, or attempting to act, as a debt
adjuster, or engaging in the business of debt adjusting; and, in such action,
enjoin, as an unfair or deceptive trade practice, the continuation of any
debt adjusting business or the offering of any debt adjusting services. The
Attorney General or the district attorney who brings an action under this
section may appoint a receiver for the property and money employed in the
transaction of business by such person as a debt adjuster, to insure,ensure,
so far as may be possible, the return to debtors of so much of their money and
property as has been received by the debt adjuster, and has not been paid to
the creditors of the debtors. The court may also assess civil penalties
under G.S. 75-15.2 and award attorneys' fees to the State under
G.S. 75-16.1."
SECTION 4. G.S. 14-426(7)g., as enacted by Section 1 of this act, becomes effective October 1, 2005. G.S. 14-423(a)(2) as amended by Section 2 of this act becomes effective December 31, 2005. The remainder of this act is effective when it becomes law. This act expires October 1, 2007.
In the General Assembly read three times and ratified this the 29th day of August, 2005.
s/ Charlie S. Dannelly
Deputy President Pro Tempore of the Senate
s/ James B. Black
Speaker of the House of Representatives
s/ Michael F. Easley
Governor
Approved 1:16 p.m. this 20th day of September, 2005