13-42-119 - Form and contents of agreement.
13-42-119. Form and contents of agreement.
(1) An agreement shall:
(a) be in a record;
(b) be dated and signed by the provider and the individual;
(c) include the name of the individual and the address where the individual resides;
(d) include the name, business address, and telephone number of the provider;
(e) be delivered to the individual immediately upon formation of the agreement; and
(f) disclose:
(i) the services to be provided;
(ii) the amount, or method of determining the amount, of all fees, individually itemized,to be paid by the individual;
(iii) the schedule of payments to be made by or on behalf of the individual, including theamount of each payment, the date on which each payment is due, and an estimate of the date ofthe final payment;
(iv) if a plan provides for regular periodic payments to creditors:
(A) each creditor of the individual to which payment will be made, the amount owed toeach creditor, and any concessions the provider reasonably believes each creditor will offer; and
(B) the schedule of expected payments to each creditor, including the amount of eachpayment and the date on which it will be made;
(v) each creditor that the provider believes will not participate in the plan and to whichthe provider will not direct payment;
(vi) how the provider will comply with its obligations under Subsection 13-42-127(1);
(vii) that the provider may terminate the agreement for good cause, upon return ofunexpended money of the individual;
(viii) that the individual may cancel the agreement as provided in Section 13-42-120;
(ix) that the individual may contact the administrator with any questions or complaintsregarding the provider; and
(x) the address, telephone number, and Internet address or website of the administrator.
(2) For purposes of Subsection (1)(e), delivery of an electronic record occurs when it ismade available in a format in which the individual may retrieve, save, and print it and theindividual is notified that it is available.
(3) If the administrator supplies the provider with any information required underSubsection (1)(f)(x), the provider may comply with that requirement only by disclosing theinformation supplied by the administrator.
(4) An agreement shall provide that:
(a) the individual has a right to terminate the agreement at any time, without penalty orobligation, by giving the provider written or electronic notice, in which event:
(i) the provider will refund all unexpended money that the provider or its agent hasreceived from or on behalf of the individual for the reduction or satisfaction of the individual'sdebt;
(ii) with respect to an agreement that contemplates that creditors will settle debts for lessthan the principal amount of debt, the provider will refund 65% of any portion of the set-up feethat has not been credited against the settlement fee; and
(iii) all powers of attorney granted by the individual to the provider are revoked andineffective;
(b) the individual authorizes any bank in which the provider or its agent has established atrust account to disclose to the administrator any financial records relating to the trust account;and
(c) the provider will notify the individual within five days after learning of a creditor'sfinal decision to reject or withdraw from a plan and that this notice will include:
(i) the identity of the creditor; and
(ii) the right of the individual to modify or terminate the agreement.
(5) An agreement may confer on a provider a power of attorney to settle the individual'sdebt for no more than 50% of the principal amount of the debt. An agreement may not confer apower of attorney to settle a debt for more than 50% of that amount, but may confer a power ofattorney to negotiate with creditors of the individual on behalf of the individual. An agreementshall provide that the provider will obtain the assent of the individual after a creditor has assentedto a settlement for more than 50% of the principal amount of the debt.
(6) An agreement may not:
(a) provide for application of the law of any jurisdiction other than the United States andthis state;
(b) except as permitted by Section 2 of the Federal Arbitration Act, 9 U.S.C. Section 2,or Title 78B, Chapter 11, Utah Uniform Arbitration Act, contain a provision that modifies orlimits otherwise available forums or procedural rights, including the right to trial by jury, that aregenerally available to the individual under law other than this chapter;
(c) contain a provision that restricts the individual's remedies under this chapter or lawother than this chapter; or
(d) contain a provision that:
(i) limits or releases the liability of any person for not performing the agreement or forviolating this chapter; or
(ii) indemnifies any person for liability arising under the agreement or this chapter.
(7) All rights and obligations specified in Subsection (4) and Section 13-42-120 existeven if not provided in the agreement. A provision in an agreement which violates Subsection(4), (5), or (6) is void.
Amended by Chapter 378, 2010 General Session