2006 Louisiana Laws - RS 9:3554 — Powers of commissioner

PART VIII.  ADMINISTRATION

§3554.  Powers of commissioner

A.  In addition to other powers granted by this Chapter, the commissioner within the limitations provided by law may:

(1)  Receive and act on complaints, take action designed to obtain voluntary compliance with this Chapter, including entering into voluntary consent or compliance agreements with persons conducting activities regulated by this Chapter without the necessity of a hearing or order, or commence proceedings on his own initiative;

(2)  counsel persons and groups on their rights and duties under this chapter;

(3)  establish programs for the education of consumers with respect to credit practices and problems;

(4)  make studies appropriate to effectuate the purposes and policies of the chapter and make the results available to the public; and

(5)  adopt, amend, and repeal substantive rules when specifically authorized by this chapter, and adopt, amend, and repeal procedural rules to carry out the provisions of this chapter.

B.  The commissioner shall have the power to promulgate rules and regulations necessary for the enforcement of but not inconsistent with this chapter.  Such rules and regulations shall be referenced to the sections or subsections which they interpret or apply.  Copies of rules and regulations shall be sent to all persons who have filed notification with the commissioner at least thirty days prior to the effective date of the rule or regulation.

C.(1)  The commissioner is hereby authorized to request and obtain from any other department or agency of the state and such are hereby authorized to furnish to the commissioner any records or information relevant to any consumer complaint or consumer credit transaction investigation or hearing by the commissioner, but excluding records or information otherwise provided by law to be privileged.  The commissioner, in his sole discretion, when requested in writing, may disclose or cause the employees of the office of financial institutions to disclose records of the office of financial institutions concerning any person governed by Title 9, when such records are requested by another state or federal agency having authority to investigate or license such person governed by Title 9, or are requested by a bankruptcy trustee or any law enforcement agency in connection with an investigation to recover assets of a current or former licensee.

(2)  If the lender's records are located outside the state, the lender, at the commissioner's option, shall make those records available to the commissioner at a location within the state convenient to the commissioner, or pay the reasonable and necessary expenses for the commissioner or his representatives 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.  The commissioner shall have the power to subpoena any person for the purpose of discovering violations of this chapter.

E.  The commissioner may, upon notice to a person regulated by this Chapter and reasonable opportunity to be heard at an administrative hearing, revoke or suspend the license, notification, or registration if:

(1)  The person has violated any provisions of this Chapter or any rule or order lawfully made by the commissioner under this Chapter.

(2)  The person has violated any provisions of a voluntary consent or compliance agreement which has been entered into with the commissioner.

(3)(a)  The person has intentionally or knowingly provided or caused to be made any false or fraudulent information or financial statements to the commissioner.

(b)  The person has intentionally or knowingly failed to state in any application for a license, registration, or notification any material fact which is required to be stated therein.

(c)  The commissioner finds any fact or condition exists which, if it had existed at the time of the original application for licensure, notification, or registration, would have warranted the refusal of its issuance.

(4)  The person fails to maintain records as required by the commissioner by rule, after being given written notice and thirty days within which to correct the failure to maintain such records.  Upon good cause shown, the commissioner may grant up to two thirty-day extensions within which the recordkeeping violations may be corrected.

(5)  The person violates any provision of a regulatory or prohibitory statute, and has been found to have violated such statute by the governmental agency responsible for determining such violations.

(6)  The person engages in fraudulent conduct, including a finding of civil fraud.

(7)  The person has been permanently or temporarily enjoined by any court of competent jurisdiction from engaging in or continuing any conduct or practice involving any aspect of the business of making loans.

(8)  A license, notification, or registration the person holds in any other state to engage in the business of making consumer loans or consumer credit sales is revoked or suspended for acts or practices which also violate the provisions of this Chapter.

(9)  The person violates the written restrictions or conditions under which his license, registration, or notification was issued.

(10)  The person transfers consumer loans to an unlicensed or non-exempt person, without the prior written approval of the commissioner, except in accordance with the provisions of this Chapter or any rule pursuant thereto.

(11)  The person has abandoned the physical location for which the license, registration, or notification was issued, has not applied for a change of location, and fails to respond within thirty days to a certified mail notice sent to his registered agent for service of process and to his mailing address.

(12)  A person which is a business entity is used as a means of furthering a criminal act or a civil fraud.

(13)  Another consumer loan license held by the same person or his parent company is revoked for serious and repeated violations of the Louisiana Consumer Credit Law.

(14)  A person fails, after notice and without lawful excuse, to obey an order or subpoena issued by the commissioner.

F.  The commissioner may, if he finds that the public safety or welfare requires emergency action, order an immediate suspension of a license, registration, or notification under this Chapter, or order a person to immediately cease and desist from an act or practice regulated by this Chapter and to take affirmative action to prevent the continuance of such act or practice pending a hearing, whenever it appears that any person has engaged in or is engaging in any act or practice which is prohibited by this Chapter, or by any rule, regulation, or order promulgated or issued thereunder, or any person has failed to act under any affirmative duty imposed by this Chapter, or rule or regulations promulgated or issued thereunder, subject to the right of such person to a hearing as provided in the Administrative Procedure Act.  Such order shall become effective upon service upon such person and shall provide for a hearing and opportunity to be heard within ten days of the order, unless extended by mutual consent of the parties.  An order of immediate suspension shall be temporary and shall expire automatically if the commissioner fails to afford notice and an opportunity for hearing pursuant to the Administrative Procedure Act.  Such temporary order shall remain effective and enforceable pending the completion of such administrative proceedings or until such time as the commissioner shall dismiss the charges specified in such notice.

G.  The commissioner shall conduct a hearing for the purpose of revoking or suspending the license of a licensed lender when three aggrieved parties not related by marriage to each other have filed affidavits stating facts reasonably showing that the licensed lender has engaged in fraudulent conduct.

H.  The commissioner may, upon notice to a person engaging in activities regulated under this Chapter and a reasonable opportunity to be heard at an administrative hearing, do one or more of the following:

(1)  Place permanent or temporary restrictions upon a person's exercise of any of the privileges granted by this Chapter, if the person is found to have violated any of the provisions of this Chapter or of any rule promulgated by the commissioner.

(2)  Issue and serve upon a person an order requiring such person to cease and desist and take corrective action whenever the commissioner finds that such person is violating or has violated any provisions of this Chapter, any rule or order adopted under this Chapter, or any written agreement entered into with the office of financial institutions.

(3)  Issue a public reprimand.

I.(1)  The commissioner may remove from office any individual with power to direct the management or policies of a person regulated by this Chapter, including but not limited to any officer, director, or manager, if any such individual is convicted of, pleads guilty to, or is found guilty after a plea of nolo contendere, of any felony under any state or federal law, or of a misdemeanor of which fraud is an essential element or which involves any aspect of the business of making loans.  Prior to such removal, the commissioner shall serve written notice upon such individual and upon the person regulated by this Chapter, of his intent to remove such individual from office.  If such individual remains in office thirty days after such written notice, the commissioner may revoke the license or other privileges granted by this Chapter without any further notification or a hearing.

(2)  The commissioner may, upon notice to an individual with the power to direct the management or policies of a person regulated by this Chapter, including but not limited to any officer, director, or manager, and after reasonable opportunity to be heard at an administrative hearing, remove the individual from participating in the affairs of a licensee if that individual has been prohibited, temporarily or permanently, by any other state or federal regulator from participating in activities for which he is licensed under this Chapter.

J.  If it is found, after an administrative hearing, that consumers who have done business with the extender of credit have been aggrieved by an improper loan finance charge, credit service charge, deferral charge, delinquency charge, or improper rebate, or the inclusion of an improper item in the amount financed, the commissioner may institute a civil action on behalf of such consumers in any form which he deems appropriate to effectuate the provisions of this Subsection, in order to recover any such money improperly exacted from the consumer by the extender of credit, provided that sixty days have passed after giving notice by certified mail of his intentions.  All monies recovered shall be returned to the aggrieved consumer in a manner deemed to be reasonable and which shall assure prompt and expeditious payment to the consumer, in whole or in part, and is calculated to minimize the expenses associated with the distribution of such monies.

K.  Whenever an alleged violation has occurred under this Section which necessitates action on the part of the commissioner, and the person has arbitrarily refused to cooperate with the commissioner after due notice, the commissioner may send an investigator to investigate the alleged violation.

(1)  The commissioner, after investigation of a complaint and after a proper opportunity for hearing and after finding that a provision of this Chapter has been violated, may issue an order to cease and desist from further violations of a like nature; or

(2)  The commissioner, upon notice to the extender of credit and after reasonable opportunity to be heard, provided that he finds that the extender has willfully failed to comply with the provisions of this Chapter to an extent to warrant belief that the business will not be operated honestly and fairly within the purposes of this Chapter, may revoke the privileges granted under this Chapter.

L.  The commissioner shall have authority to examine the books, records, and accounts of all persons regulated under or making loans subject to the Louisiana Consumer Credit Law.  Such examination shall not occur more frequently than once a year unless there arises the necessity for an additional examination based on a probable cause.

M.  If any part of the regulations promulgated is declared invalid, all parts that are severable from the invalid parts shall remain in effect.

Added by Acts 1972, No. 454, §1, eff. Jan. 1, 1973.  Amended by Acts 1974, No. 466, §2; Acts 1991, No. 700, §1, eff. July 18, 1991; Acts 1992, No. 139, §1; Acts 1992, No. 149, §1; Acts 1992, No. 150, §1, eff. June 5, 1992; Acts 1999, No. 261, §2; Acts 1999, No. 1315, §1, eff. Jan. 1, 2000.