HB 1600-FN –AS INTRODUCED
HOUSE BILL 1600-FN
I. Defines field agent and field calls.
II. Requires a employer of field agents to perform a criminal background and records check on all field agents in his or her employ.
III. Regulates how field agents may conduct field calls.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [
in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twelve
AN ACT relative to collection notification practices.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Unfair, Deceptive or Unreasonable Debt Collection Practices. RSA 358-C:1 is repealed and reenacted to read as follows:
358-C:1 Definitions. In this chapter:
I. “Consumer” means a natural person who seeks or acquires, or is offered property, services, or credit for personal, family or household purposes.
II. “Consumer credit transaction” means a transaction between a creditor and a consumer in which real or personal property, services, money, or a form of money is acquired on credit and the consumer’s obligation is payable in 4 or more installments or for which credit a finance charge is or may be imposed. The term includes consumer credit sales, consumer loans, consumer leases of personal property and transactions pursuant to a seller or lender credit card, but shall not include leases of real property.
III. “Consumer letter” means a letter requesting payment of a debit or urging contact by the consumer with a debtor or providing updated information regarding a personal fiscal matter.
IV. “Consumer transaction” means a transaction between a consumer and a person who sells, leases or provides property, services or credit to consumers. The term shall not include leases of real property.
V. “Creditor” means a person who in the ordinary course of business engages in consumer credit transactions with consumers.
VI. “Credit” means the right granted by a person to a consumer to defer payment of a debt, to incur debt and defer its payment, or purchase property or services and defer payment therefor.
VII. “Debt” means any obligation or alleged obligation arising out of a consumer transaction.
VIII. “Debtor” means a person who owes or allegedly owes an obligation arising out of a consumer transaction.
IX. “Debt collector” means:
(a) Any person who by any direct or indirect action, conduct, or practice enforces or attempts to enforce an obligation that is owed or due, or alleged to be owed or due, by a consumer as a result of a consumer credit transaction; or
(b) Any person who, for any fee, commission or charge other than wages or salary, engages in any direct or indirect action, conduct or practice to enforce or attempt to enforce an obligation that is owed or due, or alleged to be owed or due, by a consumer as a result of a consumer transaction; or
(c) Any person who, pursuant to an assignment, sale, or transfer of a claim against a consumer, engages in any direct or indirect action, conduct or practice to enforce an obligation that is owed or due, or alleged to be owed or due, by a consumer as a result of a consumer transaction.
X. “Field call” means a visit to the place of residence or employment the address of which has previously been provided to a bank or financial entity and at which the consumer has previously stated that he or she can be reached.
XI. “Field call agency” means an entity that provides directly or in-direct through contract employees services of in person or attempted in-person visits with a debtor.
XII. “Field call agent” means a person who is involved in field calls either as an employee or a contract agent.
XIII. “FDCPA” means the Fair Debt Collection Practices Act, 15 U.S.C. section 1692.
XIV. “Finance charge” means a charge such as interest, fees, service charges, discounts and other charges associated with the extension of credit.
XV. “Person” means an individual, corporation, trust, partnership, incorporated or unincorporated association or any other legal entity.
2 New Paragraphs; Field Calls. Amend RSA 358-C:3 by inserting after paragraph XII the following new paragraphs:
XIII. Any field agent visiting a consumer’s address shall have readily available or visible identification of the company engaged to provide the field call. If asked by the consumer the field agent shall give to the consumer the name of the company for whom he or she is working and show to the consumer his or her company identification.
XIV. No field agent shall be engaged in field call activities who has any felony conviction, or any conviction for theft, drug possession, use, or sale, sexual assault, or conviction for fraud or other offense association with honesty on his or her record. The employer of the field agent shall obtain a background and criminal records check at the employer’s expense.
XV. No consumer letter shall be left at an address unless that letter is in a sealed plain envelope bearing the words “PERSONAL” and “CONFIDENTIAL” clearly marked and bearing the consumer’s name. No marks on the envelope shall indicate that the contents are associated with an attempt to collect a debt.
XVI. The consumer letter shall contain the name of the field call agency that arranged for the delivery of the consumer letter at the consumer’s address, and an address and a contact number for the field call agency or that of the creditor.
XVII. The consumer letter shall be securely affixed to the main entry of the consumer’s residence or place of business.
XVIII. All contents of the consumer letter and any information regarding the consumer provided to the field call agency shall be held in the strictest confidence and shall not be released to any third party, including law enforcement which is considered a third party under the FDCPA. This attempt to collect a debt shall be treated as personal financial information by all involved. If confronted by law enforcement demanding a reason for the purpose of the visit the field agent shall only provide his or her name, identification, and other personal information requested but shall not divulge the purpose of the visit other than to state it was “personal business.”
XIX. The field agent making field calls may access a consumer’s property by remaining upon a driveway or walkway and shall leave the property when asked to leave by the consumer.
XX. Inquiries of neighbors into the reputation or character of the consumer shall be considered beyond the scope of authority of a field agent unless such field agent is also a licensed private investigator under RSA 106-F.
3 New Paragraph; Penalties. Amend RSA 358-C:4 by inserting after paragraph VI the following new paragraph:
VII. Whoever violates the provisions of this chapter shall be guilty of a misdemeanor if a natural person, or guilty of a felony if any other person.
4 Effective Date. This act shall take effect January 1, 2013.
HB 1600-FN - FISCAL NOTE
AN ACT relative to collection notification practices.
The Judicial Branch, Judicial Council, Department of Justice, and New Hampshire Association of Counties state this bill may increase state and county expenditures by an indeterminable amount in FY 2013 each year thereafter. There will be no fiscal impact on local expenditures, or state, county, and local revenue.
The Judicial Branch states this bill addresses unfair, deceptive or unreasonable collection practices and makes violations of this a misdemeanor for a natural person or felony for any other person. The Branch has no information to estimate how many charges would be brought as a result of the changes contained in the bill to determine the fiscal impact on expenditures but does have information on the cost for processing a misdemeanor or a felony. All costs are estimated based on case weight information from the last needs assessment completed in 2005. The Branch states a misdemeanor can be either class A or class B, with the presumption being a class B misdemeanor. The Branch states a class A misdemeanor will cost $59.11 per case in FY 2013 and $61.31 per case in FY 2014 and each year thereafter, and a class B misdemeanor will cost $43.19 per case in FY 2013 and $44.54 per case in FY 2014 and each year thereafter. The Branch states the felony in this statute would be classified as an average routine felony and treated as an average routine criminal case in the Superior Court. The Branch states an average routine criminal case will cost $389.84 per case in FY 2013 and $401.48 per case in FY 2014 and each year thereafter. The possibility of appeals increases the likelihood the fiscal impact on the Branch will exceed $10,000.
The Judicial Council states to the extent an unspecified misdemeanor results in a misdemeanor offense where the right to counsel exists this bill may result in an indeterminable increase in state general fund expenditures. The Council states if an individual is found to be indigent, the flat fee of $275 per misdemeanor is charged by a public defender or contract attorney. If an assigned counsel attorney is used the fee is $60 per hour with a cap of $1,400 for a misdemeanor charge. The Council also states additional costs could be incurred if an appeal is filed. The public defender, contract attorney and assigned counsel rates for Supreme Court appeals is capped at $2,000 per case, with many assigned counsel attorneys seeking permission to exceed the fee cap. Requests to exceed the fee cap are seldom granted. Finally, expenditures would increase if services other than counsel are requested and approved by the court during the defense of a case or during an appeal.
The Department of Justice states this bill may result in additional prosecutions by the Department. The Department does not have information to estimate the increase to determine the fiscal impact on expenditures.
The New Hampshire Association of Counties states to the extent more individuals are charged, convicted, and sentenced to incarceration in a county correctional facility, the counties may have increased expenditures. The Association is unable to determine the number of individuals who might be charged, convicted or incarcerated as a result of this bill to determine an exact fiscal impact. The average annual cost to incarcerate an individual in a county correctional facility is approximately $35,000. There is no impact on county revenue.