2006 Louisiana Laws - RS 9:3573.9 — Powers of the commissioner

§3573.9.  Powers of the commissioner

A.(1)  The commissioner shall have the power to examine all books, records, and accounts of all persons regulated under this Part. In addition to maintaining a copy of the contract signed by the buyer and a copy of all correspondence pertaining to the efforts made by the credit repair services organization to improve the buyer's credit rating, the commissioner may prescribe by rule additional recordkeeping requirements as deemed necessary to determine compliance with this Part.

(2)(a)  Each credit repair services organization required to be licensed under this Part shall maintain in its offices such books, records, and accounts of its credit repair services activities as the commissioner may require in order to determine whether such credit repair services organization is complying with the provisions of this Part and the rules and regulations promulgated under the provisions of this Chapter, including but not limited to copies of all documentation regarding customer transactions, itemization of all monies received and disbursed, and documentation showing what services were performed for all monies received.

(b)  Such books, records, and accounts shall be maintained separate and apart from any other business in which the organization is involved and shall be kept at the location in the state at which the credit repair services activity occurred or at the organization's principal office unless otherwise permitted in writing by the commissioner.  If the credit repair services organization's books, records, and accounts are located outside the state, the organization, at the commissioner's option, shall make them 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.

(c)  Each reproduction of any book, record, or account shall be treated for all purposes as if it were the original of the same.

B.  After notice and opportunity to be heard as provided in the Administrative Procedure Act, the commissioner may revoke or suspend the license of a credit repair services organization that:

(1)  Violates, in substance or in form, any of the provisions of this Part or any rule or regulation promulgated, or any order, including a cease and desist order, issued pursuant to this Chapter or the provisions of 15 U.S.C. 1679.

(2)  Violates, in substance or in form, any provision of a voluntary consent or compliance agreement which has been entered into with the commissioner.

(3)  Has knowingly provided or caused to be provided to the commissioner any false or fraudulent misrepresentation of material fact or any false or fraudulent financial statement, or has suppressed or withheld from the commissioner any information which if submitted by him would have resulted in denial of the license application.

(4)  Refuses to permit an examination by the commissioner of his books and affairs or has refused or failed within a reasonable time to furnish any information or make any report that may be required by the commissioner under the provisions of this Part.

(5)  Fails to maintain records as required by the commissioner after being given written notice and thirty days within which to correct the failure. The commissioner may grant, on good cause shown, up to two thirty-day extensions within which to correct the recordkeeping violations.

(6)  Continues in office any individual with power to direct the management or policies of a person regulated by the Part, including but not limited to any officer, director, or manager, if such individual is convicted of, pleads guilty to, or enters a plea of nolo contendere to any felony under any state or federal law which involves moral turpitude or which involves any aspect of the credit repair services organization business.

(7)  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.

(8)  Misrepresents material facts or makes false promises likely to influence, persuade, or induce an applicant into a credit repair services transaction, or pursues a course of misrepresentation through agents or otherwise.

(9)  Misrepresents or conceals material facts, terms, or conditions of a transaction to which he is a party, pertinent to an applicant for a credit repair services organization.

(10)  Knowingly engages in any transaction, practice, or course of business which perpetrates a fraud upon any person in connection with any credit repair services transaction.

(11)  Fails to pay any fee or assessment imposed by this Part or by any rule or regulation promulgated in accordance with this Chapter.

(12)  Violates, in substance or in form, the written restrictions or conditions under which the license was issued.

(13)  Fails, after notice and without lawful excuse, to obey any order or subpoena issued by the commissioner.

(14)  Advertises as a credit repair services organization without being properly licensed as required by this Part or advertises as a credit repair services organization in a manner determined by the commissioner, in his discretion, to be in violation of any provision of this Part or any rule or regulation promulgated pursuant to this Chapter or 15 U.S.C. 1679.

C.  The commissioner may report egregious violations to the attorney general or to the district attorney of the appropriate parish, who may institute the proper proceedings to enjoin the violation and enforce the penalties provided for in this Section.

D.  The Office of Financial Institutions may issue advisory opinions and interpretations regarding this Part, and such advisory opinions and interpretations shall not be considered rules requiring compliance with the rulemaking process of the Louisiana Administrative Procedure Act.  The commissioner and the employees of the Office of Financial Institutions shall have no liability to any person with respect to an advisory opinion or interpretation issued in connection with this Part.

E.  Any person who acts as a credit repair services organization without complying with the provisions of this Part shall be subject to forfeiture of the compensation attributable to a particular client and received by the credit repair services organization in connection with credit repair services activity for that client.

F.  All grounds for suspension or revocation listed in Subsection B of this Section are violations of this Part and may serve as the basis for any other enforcement action provided to the commissioner by this Chapter.

G.  The commissioner may share information about any particular entity which is licensed by the commissioner in the manner provided for in R.S. 9:3518.1.

H.  When the commissioner has cause to believe that any person has violated or is violating any provision of this Part, he may, in addition to the other powers conferred upon him, request such person to file a statement or report in writing under oath or otherwise, on forms prescribed by him, as to all facts and circumstances concerning the sale or advertisement of services by any credit repair services organization and any other data and information he deems necessary.

I.(1)  The commissioner shall have the power to issue subpoenas to any person for the purpose of discovering violations in this Part and to require the attendance of witnesses or the production of documents, conduct hearings in aid of any investigation or inquiry, administer oaths, and examine under oath any person in connection with the sale of services by any credit repair services organization.

(2)  Service of any notice, order, or subpoena may be made by personal service or certified mail.

J.  The commissioner may make and promulgate rules and regulations as he deems necessary to carry out the provisions of this Part, including but not limited to the following:

(1)  Providing for definitions.

(2)  Establishing licensure requirements.

(3)  Providing for bond and trust account requirements.

(4)  Addressing issues regarding transaction disclosures.

(5)  Establishing fees and assessments.

(6)  Addressing issues regarding forms and terms of contracts.

(7)  Providing for administrative and enforcement actions.

(8)  Addressing issues regarding advertising as a credit repair services organization.

(9)  Providing for records retention requirements.

K.  The commissioner may enter into cooperative and reciprocal agreements with the regulatory authorities of the federal government or of any state for the periodic examination of persons engaging in the business of credit repair and may accept reports of examination and other records from such authorities in lieu of conducting his own examinations.  The commissioner may enter into joint actions with other regulatory bodies having concurrent jurisdiction or may enter into such actions independently to carry out his responsibilities under this Part and assure compliance with the laws of this state.

L.  In addition to any other authority conferred upon the commissioner by this Part or this Chapter, the commissioner may order refunds of the unauthorized portion of any fee or charge a person collects in violation of this Part and may impose a penalty not exceeding one thousand dollars per violation upon any person who he has determined to have committed such violation.  For purposes of this Subsection, each unauthorized fee or charge shall be considered a violation.

M.(1)  Any person whose licensure under this Part has been revoked, for any reason, may not reapply for a license under this Part until after at least five years from the date of the order of suspension or revocation, unless the commissioner, in his sole discretion, prescribes an earlier or later date.

(2)  For purposes of this Subsection:

(a)  The term "order" shall mean the commissioner's notification of revocation of the person's license.

(b)  The term "person" shall include the applicant, its owners, and its members if the applicant is a limited liability company, its partners if the applicant is a partnership, its officers and directors if the applicant is a corporation, and any other person determined by the commissioner, in his sole discretion, to be closely related to the person.

N.  Subject to the provisions of R.S. 13:4521 and 4581, all estimated costs of appeal, including those involved in preparation of the administrative record for appeal, taken by a person in connection with an adverse ruling of an administrative law judge in connection with a hearing held pursuant to this Chapter and the Administrative Procedure Act, shall be paid by that person within sixty days of the filing of the petition for appeal in the district court.  Failure to pay such estimated costs within the time specified herein shall result in said appeal being dismissed with prejudice and without the necessity of any further action being taken by any party.

O.  Any final and definitive decision of an administrative law judge, or in the case such decision is appealed, a final and definitive judgment of an appellate court, issued in connection with any hearing held pursuant to this Chapter and the Administrative Procedure Act shall be considered a valid and final judgment that may be made executory by the commissioner in accordance with the Code of Civil Procedure.

Acts 1992, No. 345, §1; Acts 2003, No. 1027, §1, eff. Dec. 31, 2003; Acts 2006, No. 190, §1.