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47-18-5502 - Part definitions. [Effective July 1, 2010.]

47-18-5502. Part definitions. [Effective July 1, 2010.]

In this part:

     (1)  “Administrator” means the commissioner of commerce and insurance;

     (2)  “Affiliate”:

          (A)  With respect to an individual, means:

                (i)  The spouse of the individual;

                (ii)  A sibling of the individual or the spouse of a sibling;

                (iii)  An individual or the spouse of an individual who is a lineal ancestor or lineal descendant of the individual or the individual's spouse;

                (iv)  An aunt, uncle, great aunt, great uncle, first cousin, niece, nephew, grandniece, or grandnephew, whether related by the whole or the half blood or adoption, or the spouse of any of them; or

                (v)  Any other individual occupying the residence of the individual; and

          (B)  With respect to an entity, means:

                (i)  A person that directly or indirectly controls, is controlled by or is under common control with the entity;

                (ii)  An officer of, or an individual performing similar functions with respect to, the entity;

                (iii)  A director of, or an individual performing similar functions with respect to, the entity;

                (iv)  Subject to adjustment of the dollar amount pursuant to § 47-18-5532(f), a person that receives or received more than twenty-five thousand dollars ($25,000) from the entity in either the current year or the preceding year or a person that owns more than ten percent (10%) of, or an individual who is employed by or is a director of, a person that receives or received more than twenty-five thousand dollars ($25,000) from the entity in either the current year or the preceding year;

                (v)  An officer or director of, or an individual performing similar functions with respect to, a person described in this subdivision (2)(B);

                (vi)  The spouse of, or an individual occupying the residence of, an individual described in subdivisions (2)(B)(i)-(v); or

                (vii)  An individual who has the relationship specified in subdivision (2)(A)(iv) to an individual or the spouse of an individual described in subdivisions (2)(B)(i)-(v);

     (3)  “Agreement” means an agreement between a provider and an individual for the performance of debt-management services;

     (4)  “Bank” means a financial institution, including a commercial bank, savings bank, savings and loan association, credit union and trust company, engaged in the business of banking, chartered under federal or state law, and regulated by a federal or state banking regulatory authority;

     (5)  “Business address” means the physical location of a business, including the name and number of a street;

     (6)  “Certified counselor” means an individual certified by a training program or certifying organization, approved by the administrator, that authenticates the competence of individuals providing education and assistance to other individuals in connection with debt-management services in which an agreement contemplates that creditors will reduce finance charges or fees for late payment, default or delinquency;

     (7)  “Certified debt specialist” means an individual certified by a training program or certifying organization, approved by the administrator, that authenticates the competence of individuals providing education and assistance to other individuals in connection with debt-management services in which an agreement contemplates that creditors will settle debts for less than the full principal amount of debt owed;

     (8)  “Concessions” means assent to repayment of a debt on terms more favorable to an individual than the terms of the contract between the individual and a creditor;

     (9)  “Day” means calendar day;

     (10)  “Debt-management services” means services as an intermediary between an individual and one (1) or more creditors of the individual for the purpose of obtaining concessions, but does not include:

          (A)  Legal services provided in an attorney-client relationship by an attorney licensed or otherwise authorized to practice law in this state;

          (B)  Accounting services provided in an accountant-client relationship by a certified public accountant licensed to provide accounting services in this state; or

          (C)  Financial-planning services provided in a financial planner-client relationship by a member of a financial-planning profession whose members the administrator, by rule, determines are:

                (i)  Licensed by this state;

                (ii)  Subject to a disciplinary mechanism;

                (iii)  Subject to a code of professional responsibility; and

                (iv)  Subject to a continuing-education requirement;

     (11)  “Entity” means a person other than an individual;

     (12)  “Good faith” means honesty in fact and the observance of reasonable standards of fair dealing;

     (13)  “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture or any other legal or commercial entity. The term does not include a public corporation, government or governmental subdivision, agency or instrumentality;

     (14)  “Plan” means a program or strategy in which a provider furnishes debt-management services to an individual and that includes a schedule of payments to be made by or on behalf of the individual and used to pay debts owed by the individual;

     (15)  “Principal amount of the debt” means the amount of a debt at the time of an agreement;

     (16)  “Provider” means a person that provides, offers to provide or agrees to provide debt-management services directly or through others;

     (17)  “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;

     (18)  “Settlement fee” means a charge imposed on or paid by an individual in connection with a creditor's assent to accept in full satisfaction of a debt an amount less than the principal amount of the debt;

     (19)  “Sign” means, with present intent to authenticate or adopt a record:

          (A)  To execute or adopt a tangible symbol; or

          (B)  To attach to or logically associate with the record an electronic sound, symbol or process;

     (20)  “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands or any territory or insular possession subject to the jurisdiction of the United States; and

     (21)  “Trust account” means an account held by a provider that is:

          (A)  Established in an insured bank;

          (B)  Separate from other accounts of the provider or its designee;

          (C)  Designated as a trust account or other account designated to indicate that the money in the account is not the money of the provider or its designee; and

          (D)  Used to hold money of one (1) or more individuals for disbursement to creditors of the individuals.

[Acts 2009, ch. 469, § 1.]