Chapter 19 - Consumer Rental Purchase Agreement Act
CHAPTER 19 - CONSUMER RENTAL PURCHASE AGREEMENT ACT
40-19-101. Short title.
Thisact shall be known and may be cited as the "Wyoming ConsumerRental-Purchase Agreement Act."
40-19-102. Definitions.
(a) As used in this act:
(i) "Administrator" means the state bankingcommissioner;
(ii) "Advertisement" means a commercial message in anymedium that solicits a consumer to enter a rental-purchase agreement;
(iii) "Business day" means any day other than Sunday ora legal holiday;
(iv) "Cash sale price" means the price stated in arental-purchase agreement for which the merchant would have sold and theconsumer would have bought the property which is the subject matter of arental-purchase agreement if the transaction had been a sale for cash. Thecash sale price may include any applicable taxes to the extent imposed on thecash sale;
(v) "Consumer" means an individual who rents propertyunder a rental-purchase agreement to be used primarily for personal, family orhousehold purposes;
(vi) "Consummation" means the date on which a consumerenters a rental-purchase agreement;
(vii) "Fee" means any payment, charge, fee, cost orexpense whether mandatory or optional that a consumer pays in addition toperiodic payments in connection with a rental-purchase agreement;
(viii) "Merchant" means a person who regularly providesthe use of property under rental-purchase agreements and to whom rentalpayments are initially payable on the face of the rental-purchase agreement;
(ix) "Periodic payment" means the rent a consumer paysweekly, monthly or otherwise for the use of property pursuant to arental-purchase agreement;
(x) "Property" means personal property of which aconsumer acquires use under a rental-purchase agreement;
(xi) "Rental-purchase agreement" means an agreementbetween a consumer and merchant for the use of property by the consumerprimarily for personal, family or household purposes:
(A) For an initial period of four (4) months or less;
(B) That is automatically renewable with each payment after theinitial period;
(C) That does not obligate or require the consumer to continuerenting or using the property beyond the initial period; and
(D) That permits the consumer to become the owner of theproperty.
(xii) "This act" means W.S. 40-19-101 through40-19-120.
40-19-103. Notices.
Noticesrequired by this act shall be given personally or sent by first class orregistered mail to the known residential address of the consumer. Notice, iflast by mail, is given when deposited in a mailbox properly addressed andpostage prepaid.
40-19-104. Application.
(a) This act applies to rental-purchase agreements and acts,practices or conduct related to a rental-purchase agreement entered into inthis state.
(b) For the purposes of this act, the residence of the consumeris the address given by the consumer as the consumer's residence in writingsigned by the consumer in connection with the rental-purchase agreement. Unless the consumer notifies the merchant of a new or different residenceaddress, the given residence is presumed to be unchanged.
40-19-105. Inapplicability of other laws; exempt transactions.
(a) Rental-purchase agreements as defined in this act are notgoverned by laws relating to:
(i) Transactions governed under the Wyoming Uniform ConsumerCredit Code; or
(ii) "Security interests" as defined by W.S.34.1-1-201(a)(xxxvii).
(b) This act does not apply to the following:
(i) Rental-purchase agreements primarily for business,commercial or agricultural purposes or those in which either party is agovernmental agency or instrumentality;
(ii) A lease or bailment of personal property which isincidental to the lease of real property and which provides that the consumerhas no option to purchase the leased property.
40-19-106. General requirements of rental-purchase agreements.
(a) Each rental-purchase agreement shall be in writing, dated,signed by the consumer and merchant and completed as to all essentialprovisions as required by this act.
(b) The agreement shall be made clearly and conspicuously withdisclosures required by W.S. 40-19-107(a)(i), (v), (vi), (vii) and (viii)grouped together, segregated from all other provisions and not containing anyinformation not directly related to the disclosures. The agreement shall bedesignated "rental-purchase agreement."
(c) The merchant shall deliver to the consumer a completed copyof the agreement for the consumer to retain at consummation of thetransaction.
(d) The rental-purchase agreement shall contain the names andaddresses of the merchant and consumer.
(e) The merchant shall disclose to the consumer the informationrequired by W.S. 40-19-107 on the face of the agreement above the line for theconsumer's signature. If a disclosure becomes inaccurate as a result of anyact, occurrence or agreement by the consumer after the delivery of the requireddisclosures, the resulting inaccuracy shall not be considered to be a violationof this act.
(f) A merchant who advertises rental-purchase agreements in anylanguage other than English shall have rental-purchase agreements printed ineach language as the merchant advertises and shall make those rental-purchaseagreements available to consumers.
40-19-107. Disclosures.
(a) For each rental-purchase agreement, the merchant shalldisclose in the agreement the following items as applicable:
(i) Whether the periodic payment is weekly, monthly orotherwise, the dollar amount of each payment and the total number and totaldollar amount of all periodic payments necessary to acquire ownership of theproperty;
(ii) A statement that the consumer will not own the propertyuntil the consumer has paid the total amount necessary to acquire ownership;
(iii) A statement advising the consumer whether the consumer isliable for loss or damage to the property, and, if so, a statement that theliability will not exceed the fair market value of the property as of the timeit is lost or damaged;
(iv) A statement specifying any insurance required to bepurchased by the consumer to satisfy any liability of the consumer to themerchant for loss or damage to the property;
(v) A brief description of the property, sufficient to identifythe property to the consumer and the merchant, including an identificationnumber, if applicable, and a statement indicating whether the property is newor used;
(vi) A statement of the cash sale price of the property. Whereone (1) agreement involves a lease of two (2) or more items as a set, astatement of the aggregate cash sale price of all items shall satisfy thisrequirement;
(vii) The total amount initially payable or required at or beforeconsummation of the agreement or delivery of the property, whichever is later;
(viii) A statement that the total amount of periodic paymentsnecessary to acquire ownership does not include other fees. Any other feeshall be separately disclosed in the agreement along with a statement of thepurpose for the fee and whether it is mandatory or optional;
(ix) A statement clearly summarizing the terms of the consumer'soption to purchase, including a statement that the consumer has the right toexercise an early purchase option, and the price, formula or method fordetermining the price at which the property may be purchased;
(x) A statement identifying the merchant as the partyresponsible for maintaining or servicing the property while it is being rented,together with a description of that responsibility, and a statement that if anypart of a manufacturer's express warranty covers the property at the time theconsumer acquires ownership, the warranty shall be transferred to the consumerif allowed by its terms;
(xi) A statement that the consumer may terminate the agreementwithout penalty by voluntarily surrendering or returning the property in goodrepair, reasonable wear and tear excepted, along with any past due rentalpayments upon expiration of any rental period;
(xii) Notice of the right to reinstate an agreement as providedin this act;
(xiii) The following notice printed or typed in a size equal to orgreater than ten (10) point bold type:
NOTICE TO CONSUMER
Do not sign thisagreement before you read it or if it contains blank spaces. You are entitledto a copy of the agreement you sign.
(xiv) If the property is used, a description of any damage to theproperty beyond ordinary wear and tear that would reasonably be expected onproperty of similar age and condition; and
(xv) A description of the conditions which constitute default bythe consumer.
40-19-108. Prohibited provisions.
(a) A rental-purchase agreement shall not contain a:
(i) Confession of judgment;
(ii) Negotiable instrument;
(iii) Security interest or any other claim of a property interestin any property of the consumer;
(iv) Wage assignment;
(v) Waiver by the consumer of claims or defenses;
(vi) Provision authorizing the merchant or a person acting onthe merchant's behalf to enter upon the consumer's premises unlawfully or tocommit any breach of the peace in the repossession of property;
(vii) Provision requiring the consumer to purchase insurance or aliability damage waiver from the merchant for the property. The merchant mayrequire the consumer to insure the property so as to satisfy any liability ofthe consumer to the merchant for loss or damage to the property;
(viii) Provision that mere failure to return property constitutesprobable cause for a criminal action;
(ix) Provision requiring the consumer to make a final periodicpayment in an amount greater than regular periodic payments in order to acquireownership of the property or a provision requiring the consumer to makeperiodic payments totaling more than the dollar amount necessary to acquireownership as disclosed pursuant to W.S. 40-19-107;
(x) Provision requiring a reinstatement fee unless a periodicpayment is late more than five (5) days on a monthly agreement or more than two(2) days on an agreement with periodic payments made more frequently thanmonthly;
(xi) Provision for a reinstatement fee or pickup and redelivery feein excess of the maximum amount set by rule of the administrator for propertysubject to rental-purchase agreements; or
(xii) Provision for a late charge or any other type of charge orpenalty for reinstating a rental-purchase agreement other than a reinstatementfee. However, a merchant may use the term "late charge" or a similarterm to refer to a reinstatement fee.
40-19-109. Default; notice of default and right to cure.
(a) In any rental-purchase agreement, after a consumer is indefault for three (3) business days or more and does not voluntarily surrenderpossession of the rented property, a merchant may give the consumer the noticeprovided in this section. Notice may be given to the consumer under thissection by the merchant personally delivering the notice to the consumer or bymailing the notice to the consumer's last known residential address.
(b) The notice shall be in writing and conspicuously state thename, address and telephone number of the merchant to whom payment is made, a briefidentification of the transaction, the consumer's right to cure any default,the amount of payment and the date the payment shall be made to cure thedefault. The notice shall be in substantially the form required by rule of theadministrator.
(c) With respect to rental-purchase agreements with payments oroptions to renew more frequently than monthly, after default consisting offailure to renew or return the property, a merchant may not initiate courtaction to recover rented property until three (3) business days after notice ofthe consumer's right to cure is given. With respect to all otherrental-purchase agreements, after default consisting of failure to renew orreturn the property, a merchant may not initiate court action to recover rentedproperty until five (5) business days after notice of the consumer's right tocure is given.
(d) After notice is given and until expiration of the minimumapplicable period, a consumer may cure all defaults consisting of failure torenew and failure to return the property by tendering the amount of all unpaidsums due and payment of a renewal payment.
(e) This section shall not prohibit a consumer from voluntarilysurrendering possession of property that is rented or a merchant fromrequesting and accepting surrender of property at any time after default. Inany enforcement proceeding, a merchant shall affirmatively plead and proveeither that the notice to cure is not required or that the merchant has giventhe required notice. The failure to plead shall not invalidate any actiontaken by the merchant that is otherwise lawful and if the merchant hadrightfully repossessed the property the repossession shall not constituteconversion.
40-19-110. Reinstatement.
(a) Any consumer whose default consists solely of a failure tomake a timely rental payment may reinstate the agreement, without losing anyrights or options which exist under the agreement, by paying the followingcharges within seven (7) days of the renewal date of the agreement:
(i) All past due rental charges;
(ii) If the property has been picked-up, the reasonable costs ofpickup and redelivery as limited by W.S. 40-19-108(a)(xi); and
(iii) Any applicable reinstatement fee as limited by W.S.40-19-108(a)(x) and (xi).
(b) In the case of a consumer who has paid less than two-thirds(2/3) of the total of payments necessary to acquire ownership and where theconsumer has returned or voluntarily surrendered the property within seven (7)days of the renewal date, other than through judicial process, the consumer mayreinstate the agreement during a period of not less than twenty-one (21) daysafter the date of the return of the property.
(c) In the case of a consumer who has paid two-thirds (2/3) ormore of the total of payments necessary to acquire ownership, and where theconsumer has returned or voluntarily surrendered the property within seven (7)days of the renewal date, other than through judicial process, the consumer mayreinstate the agreement during a period of not less than thirty (30) days afterthe date of the return of the property.
(d) Nothing in this section shall prevent a merchant fromattempting to repossess the property. Repossession within seven (7) days ofthe renewal date shall not affect the consumer's right to reinstate. Uponreinstatement, the merchant shall provide the consumer with the same property,if available, or with substitute property of comparable quality and condition.
40-19-111. Liability damage waivers; fees.
(a) A consumer and merchant may contract for a liability damagewaiver. The selling or offering for sale of a liability damage waiver pursuantto this act shall be subject to the following prohibitions and requirements:
(i) A merchant may not sell or offer to sell a liability damagewaiver unless all restrictions, conditions and exclusions are printed in anagreement separate from the rental-purchase agreement;
(ii) The liability damage waiver contract shall include astatement of the fee for the liability damage waiver and shall display thefollowing notice printed or typed in a size equal to or greater than ten (10)point bold type:
NOTICE: THE PURCHASEOF THIS LIABILITY DAMAGE WAIVER IS NOT MANDATORY AND MAY BE DECLINED. THISCONTRACT OFFERS, FOR AN ADDITIONAL CHARGE, A LIABILITY DAMAGE WAIVER TO COVERYOUR RESPONSIBILITY FOR DAMAGE TO THE PROPERTY. BEFORE DECIDING WHETHER TOPURCHASE THE LIABILITY DAMAGE WAIVER, YOU MAY WISH TO DETERMINE WHETHER YOURHOMEOWNER'S OR CASUALTY INSURANCE, IF ANY, AFFORDS YOU COVERAGE FOR DAMAGE TOTHE RENTAL PROPERTY AND THE AMOUNT OF THE DEDUCTIBLE UNDER YOUR OWN INSURANCECOVERAGE.
40-19-112. Renegotiations and extensions.
(a) A renegotiation occurs when any term of a rental-purchaseagreement that is required to be disclosed by W.S. 40-19-107 is changed byagreement between the merchant and consumer. A renegotiation is considered tobe a new rental-purchase agreement requiring the merchant to give all thedisclosures required by W.S. 40-19-107.
(b) The following acts shall not be considered to be arenegotiation:
(i) Reinstatement of a rental-purchase agreement in accordancewith W.S. 40-19-110;
(ii) A merchant's waiver or failure to assert any claim againstthe consumer;
(iii) A deferral, extension or waiver of a portion of a periodicpayment or of one (1) or more periodic payments; or
(iv) A change, made at the consumer's request, of the day of theweek or month on which periodic payments are to be made.
40-19-113. Advertising.
(a) An advertisement for a rental-purchase agreement thatrefers to or states the dollar amount of a periodic payment and the right toacquire ownership of a specific item shall also clearly and conspicuously statethe following:
(i) The transaction advertised is a rental-purchase agreement;
(ii) The total number and total amount of periodic paymentsnecessary to acquire ownership of the item; and
(iii) That the consumer acquires no ownership rights in the itemunless the total amount necessary to acquire ownership is paid.
(b) Any owner or personnel of any medium in which anadvertisement appears or through which it is disseminated shall not be liablefor the requirements in this section.
(c) The provisions of subsection (a) of this section shall notapply to any advertisement which does not refer to or state the amount of anypayment.
(d) Every item displayed or offered under a rental-purchaseagreement shall bear a tag or card that clearly and conspicuously indicates inArabic numerals each of the following:
(i) The cash sale price of the item;
(ii) The amount of the periodic payment; and
(iii) The total number and total amount of periodic paymentsnecessary to acquire ownership.
(e) An advertisement for a rental-purchase agreement in anylanguage other than English shall contain disclosures as required by thissection in that language.
40-19-114. License required; application for license; fee;qualifications.
(a) Any person acting as a merchant, as defined by W.S.40-19-102(a)(viii), in this state shall be licensed to conduct such businessunder this section.
(b) The administrator shall receive and act on all applicationsfor licenses required under this act. Applications shall be filed in themanner prescribed by the administrator and shall contain the information theadministrator requires by rule to make an investigation and evaluation of thefinancial responsibility, experience and business qualification of theapplicant, and of the partners or members if the applicant is a partnership orassociation, and of the principal officers and directors if the applicant is acorporation, such as to warrant belief that the business will be operatedhonestly and fairly within the purposes of this act.
(c) The application for one (1) or more licenses shall beaccompanied by a processing fee not to exceed five hundred dollars ($500.00)set by rule of the administrator. The fee shall be deposited by theadministrator with the state treasurer and credited to the financialinstitutions administration account. Funds from the account shall be expendedto carry out the duties of the administrator. If the expenses of theinvestigation and evaluation exceed the amount of the fee, the applicant shallreimburse the administrator the excess amount. If the expenses of theinvestigation and evaluation are less than the amount of the fee, theunexpended amount shall remain within the account. If an application iswithdrawn by the applicant at any time prior to the completion of theinvestigation and evaluation, the unexpended amount shall remain within theaccount.
(d) Except as otherwise provided, fees collected by theadministrator under this act shall be deposited by the administrator with thestate treasurer and credited to the financial institutions administrationaccount. Expenditures shall be made from the account by warrants drawn by thestate auditor, upon vouchers issued and signed by the administrator. The fundsdeposited in the account under this act shall be expended only to carry out theduties of the administrator.
(e) The applicant shall be notified when the application isapproved. Within twenty (20) days after notification, the applicant shall payan initial license fee not to exceed five hundred dollars ($500.00), as set byrule of the administrator.
(f) Each office or place of business shall be licensedseparately.
(g) Each license shall state the address of the office fromwhich the business is to be conducted and the name of the licensee. Thelicense shall be prominently displayed at the place of business named in thelicense. The license shall not be transferable or assignable.
(h) If a licensee wishes to move his office to anotherlocation, the licensee shall:
(i) Give written notice to the administrator at least thirty(30) days prior to the move; and
(ii) Pay a license modification fee not to exceed one hundreddollars ($100.00), as set by rule of the administrator.
(j) Each license issued under this section shall expire on July1. The license shall be renewed annually not less than thirty (30) days beforethe expiration date. The renewal fee for each license shall not exceed fivehundred dollars ($500.00), as set by rule of the administrator.
40-19-115. Revocation or suspension of license.
(a) The administrator may issue to a person licensed under thisact an order to show cause why his license should not be revoked or suspendedfor a period not in excess of six (6) months. The order shall state the placefor a hearing and set a time for the hearing that is no less than ten (10) daysfrom the date of the order. After the hearing the administrator shall revoke orsuspend the license if he finds that:
(i) The licensee has repeatedly and willfully violated this actor any rule or order lawfully made pursuant to this act; or
(ii) Facts or conditions exist which would clearly havejustified the administrator in refusing to grant a license had these facts orconditions been known to exist at the time the application for the license wasmade.
(b) No revocation or suspension of a license is lawful unlessprior to institution of proceedings by the administrator notice is given to thelicensee of the facts or conduct which warrant the intended action and the licenseeis given an opportunity to show compliance with all lawful requirements forretention of the license.
(c) If the administrator finds that probable cause forrevocation of a license exists and that enforcement of this act requiresimmediate suspension of a license pending investigation, he may, after ahearing upon five (5) days written notice, enter an order suspending thelicense for not more than thirty (30) days.
(d) Whenever the administrator revokes or suspends a license,he shall enter an order to that effect and immediately notify the licensee ofthe revocation or suspension. Within five (5) days after the entry of theorder he shall deliver to the licensee a copy of the order and the findingssupporting the order.
(e) Any person holding a license under this act may relinquishthe license by notifying the administrator in writing of its relinquishment,but this relinquishment shall not affect his liability for acts previouslycommitted.
(f) No revocation, suspension or relinquishment of a licenseshall impair or affect the obligation of any preexisting lawful contractbetween the licensee and any consumer.
(g) The administrator may reinstate a license, terminate asuspension or grant a new license to a person whose license has been revoked orsuspended if no fact or condition then exists which clearly would havejustified the administrator in refusing to grant a license.
40-19-116. Record retention.
Everylicensee shall maintain records in conformity with generally acceptedaccounting principles and practices in a manner which will enable theadministrator to determine whether the licensee is complying with theprovisions of this act. The record keeping system of a licensee shall besufficient if he makes the required information reasonably available to theadministrator. The records pertaining to any rental-purchase agreement need notbe preserved for more than two (2) years after making the final entry relatingto the agreement.
40-19-117. Examination and investigation.
(a) Upon complaint the administrator may examine and copy therecords of a licensee. The investigation may be made for the purposes ofdiscovering violations of this act or securing information lawfully required. For these purposes he shall have free and reasonable access during normaloffice hours to the offices, places of business and records of the licensee. Each licensee shall pay to the administrator an amount assessed by theadministrator to cover the direct and indirect cost of an investigation underthis subsection.
(b) For the purposes of this section, the administrator mayadminister oaths or affirmations, and upon his own motion or upon request ofany party may subpoena witnesses, compel their attendance, adduce evidence andrequire the production of any matter which is relevant to the investigation,including the existence, description, nature, custody, condition and locationof any books, documents or other tangible things and the identity and locationof person having knowledge of relevant facts or any other matter reasonablycalculated to lead to the discovery of admissible evidence.
(c) Upon failure without lawful excuse to obey a subpoena or togive testimony and upon reasonable notice to all persons affected thereby, theadministrator may apply to the district court for an order compellingcompliance.
40-19-118. Powers and functions of the administrator; enforcement;penalties.
(a) Except as otherwise provided, the Wyoming AdministrativeProcedure Act, W.S. 16-3-101 through 16-3-115, shall apply to and govern alladministrative actions taken by the administrator pursuant to this act.
(b) The administrator may adopt rules and regulations toimplement and administer this act.
(c) After notice and hearing, the administrator may order amerchant or a person acting on his behalf to cease and desist from engaging inviolations of this act. Any person aggrieved by an order of the administratormay obtain judicial review of the order and the administrator may obtain anorder of the court for enforcement of his order in the district court.
(d) The administrator may bring a civil action to restrain amerchant from violating the provisions of this act and for other appropriaterelief.
(e) Any merchant refusing or obstructing access to theadministrator or his representative to any account, books, records or papers,refusing to furnish any required information or hindering a full examination orinvestigation of the accounts, books, records or papers is guilty of a felonypunishable by a fine of not less than one thousand dollars ($1,000.00),imprisonment for a period of not less than one (1) year, or both.
(f) Any merchant who wrongfully fails or refuses to comply withan order of the administrator as may be provided under this act is guilty of amisdemeanor punishable by a fine of not more than one hundred dollars ($100.00)per day for each day the order is not obeyed.
40-19-119. Consumer civil actions.
(a) A merchant who fails to comply with a requirement imposedin W.S. 40-19-106 through 40-19-112 or 40-12-104 shall be liable to theconsumer damaged thereby in an amount equal to the greater of:
(i) The actual damages sustained by the consumer as a result ofthe violation, plus the costs of the action and reasonable attorney's fees;
(ii) In the case of an individual action, twenty-five percent(25%) of the total payments necessary to acquire ownership but not less thanone hundred dollars ($100.00) nor greater than one thousand dollars($1,000.00), plus the costs of the action and reasonable attorney's fees; or
(iii) In the case of a class action, the amount the courtdetermines to be appropriate with no minimum recovery as to each member, plusthe costs of the action and reasonable attorney's fees. The total recovery inany class action or series of class actions arising out of the same violationshall not be more than the lesser of five hundred thousand dollars ($500,000.00)plus the costs of the action and reasonable attorney's fees or one percent (1%)of the net worth of the merchant plus the costs of the action and reasonableattorney's fees. In determining the amount of any award in a class action, thecourt shall consider, among other relevant factors, the amount of actualdamages awarded, the frequency and persistence of the violation, the merchant'sresources and the extent to which the merchant's violation was intentional.
(b) In the case of an advertisement, any merchant who fails tocomply with the requirements of W.S. 40-19-113 with regard to any consumershall be liable to that consumer for actual damages suffered from theviolation, the costs of the action and reasonable attorney's fees.
(c) If there are multiple merchants, liability shall be imposedonly on the merchant who made the disclosures. If no disclosures have beengiven, liability shall be imposed on all merchants.
(d) If there are multiple consumers in a rental-purchaseagreement, there shall be only one (1) recovery of damages under subsection (a)of this section.
(e) Multiple violations in connection with a rental-purchaseagreement shall entitle the consumer to a single recovery under this section.
(f) An action under this section shall be brought in any courtof competent jurisdiction within the greater of the following times:
(i) Within two (2) years after the date the consumer made hislast rental payment; or
(ii) Within two (2) years after the date of the occurrence ofthe violation that is the subject of the suit.
40-19-120. Merchant's defense.
(a) If a merchant establishes by a preponderance of theevidence that a violation of this act was unintentional, no penalty asspecified in W.S. 40-19-118 shall be imposed and validity of the transactionshall not be affected.
(b) A merchant shall not be liable under this act for anyfailure to comply with any requirement imposed under this act if within sixty(60) days after the merchant discovers an error, and prior to the institutionof an action under this act or the receipt of written notice of the error fromthe consumer, the merchant notifies the consumer of the error and within seven(7) days, makes adjustments in the appropriate account necessary to correct theerror.