SB-0385, As Passed House, November 29, 2017

SB-0385, As Passed Senate, October 19, 2017

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

SENATE BILL NO. 385

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1980 PA 299, entitled

 

"Occupational code,"

 

by amending section 915a (MCL 339.915a), as amended by 1996 PA 151.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 915a. (1) A licensee shall not commit any of the

 

following acts:

 

     (a) Listing the name of an attorney in a written or oral

 

communication, collection letter, or publication in an attempt to

 

collect a debt on behalf of a person other than the licensee or an

 

affiliate of the licensee. This subdivision does not apply if the

 

attorney is an employee of the licensee and is engaged in

 

collecting claims owned by the licensee or an affiliate of the

 

licensee.

 

     (b) Furnishing legal advice, or otherwise engaging in the

 

practice of law, or representing that the person is competent to do

 


so, or to institute a judicial proceeding legal action on behalf of

 

another person. This subdivision does not apply to an attorney who

 

is an employee of the licensee and is furnishing legal advice to or

 

representing the interests of the licensee or an affiliate of the

 

licensee. However, an attorney who is an employee of a licensee may

 

not institute a legal action to collect a claim unless the claim is

 

owned by the licensee or an affiliate of the licensee.

 

     (c) Sharing quarters or office space , or having a common

 

waiting room with a practicing attorney or a lender.lender or with

 

a practicing attorney who is not an employee of the licensee. This

 

subdivision does not prohibit a licensee from occupying a separate

 

space in the same building in which a practicing attorney has

 

office space or sharing a common waiting area with a practicing

 

attorney.

 

     (d) Employing or retaining an attorney to collect a claim, . A

 

unless the claim is owned by the licensee or an affiliate of the

 

licensee. However, a licensee may exercise authority on behalf of a

 

creditor to employ the service of retain an attorney if the

 

creditor has specifically authorized the collection agency in

 

writing to do so and the licensee's course of conduct is at all

 

times consistent with a true relationship of attorney and client

 

between the attorney and the creditor. After referral to an

 

attorney, the creditor shall be is the client of the attorney, and

 

the licensee shall not represent the client in court. The licensee

 

may act as an agent of the creditor in dealing with the attorney

 

only if the creditor has specifically authorized the licensee to do

 

so in writing.


     (e) Demanding or obtaining a share of the compensation for

 

service performed by an attorney in collecting a claim or demand,

 

or collecting or receiving a fee or other compensation from a

 

consumer for collecting a claim, other than a claim owing owed to

 

the creditor pursuant to under the provisions of the original

 

agreement between the creditor and debtor.

 

     (f) Soliciting, purchasing, or receiving an assignment of a

 

claim for the sole purpose of instituting an action on the claim in

 

a court.

 

     (g) Advertising or threatening to advertise for sale a claim

 

as a means of forcing payment of the claim, unless the collection

 

agency is acting as the assignee for the benefit of creditors or

 

acting under an order of a court.

 

     (h) Failing to deposit money collected into the trust account

 

required to be maintained under this article.

 

     (i) Commingling money collected for a client with the

 

collection agency's own general or operating funds.

 

     (j) Using a part of a client's money in the conduct of a

 

collection agency's business.

 

     (k) Refusing or intentionally failing to remit to a client all

 

money collected, due, and owing the client, less any commission

 

owed to the licensee, within 45 days after the day on which the

 

money was is collected.

 

     (l) Failing to give a debtor a written receipt for cash

 

payment, or for any other payment when if a receipt is specifically

 

requested, showing the amount of money received, and the debt to

 

which it was applied the licensee is applying the money, and the


name of the specific account receiving the money.

 

     (m) Refusing or intentionally failing to return to a creditor

 

all original documents deposited with the claim when the claim is

 

returned, if requested. When requested by the creditor, there shall

 

be a signed agreement between the agency and the creditor if any If

 

the licensee charges a closing out fee is charged to the creditor

 

for returning unpaid claims returned or discontinuing collection

 

activities, discontinued.the licensee shall enter into a written

 

agreement with the creditor concerning those fees if requested by

 

the creditor.

 

     (n) Identifying the collection agency other than by the name

 

appearing that appears on the license.

 

     (o) Permitting an employee to use a name other than the

 

employee's own name or the assumed name registered by the licensee

 

with the department in the collection of a debt.

 

     (p) Operating under a name or in a manner that implies or

 

states that the collection agency is a branch of, or associated

 

with, or has been approved or licensed by, a department of federal,

 

state, or local government, or that implies that the collection

 

agency is a credit reporting agency that regularly furnishing a

 

credit report provides credit reports about consumers unless it is

 

a credit reporting agency.

 

     (q) Accepting a check or other payment instrument postdated by

 

more than 5 days unless the debtor is notified in writing of the

 

person's intent to deposit a postdated check or instrument not more

 

than 10 nor less fewer than 3 business days before the deposit.

 

     (r) Depositing or threatening to deposit a postdated check or


other postdated payment instrument before the date on the postdated

 

check or instrument.

 

     (2) This section shall not be construed as creating an

 

exception to section 1 of 1917 PA 354, MCL 450.681, or section 916

 

of the revised judicature act of 1961, 1961 PA 236, MCL 600.916.

 

     (3) As used in this section, "affiliate" means that term as

 

defined in section 776 of the business corporation act, 1972 PA

 

284, MCL 450.1776.

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.