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Maine Fair Debt Collection Practices Act

Maine Fair Debt Collection Statute

Title 32: Professions and Occupations

Chapter 109-A: Maine Fair Debt Collection Practices Act

Maine Fair Debt Collection Practices Act § 11001. Short title

This chapter shall be known and may be cited as the “Maine Fair Debt Collection Practices Act.”

Maine Fair Debt Collection Practices Act § 11002. Definitions

As used in this chapter, unless the context otherwise indicates, the following terms have the following meanings. [1985, c. 702, §2 (NEW).]

1. Communication. “Communication” means the conveyance or receipt of information regarding or facilitating the collection of a debt, directly or indirectly, to or from any person through any medium.

[ 1985, c. 702, §2 (NEW) .]

2. Conducting business in this State. “Conducting business in this State” means the collection or attempted collection of a debt due another by a debt collector located in this State; the face-to-face solicitation of creditors in this State as clients and the collection or attempted collection of their debts by a debt collector, wherever located; or the collection or attempted collection of debts incurred between a consumer in this State and creditor in this State by a debt collector, wherever located.

[ 1995, c. 397, §101 (AMD) .]

3. Consumer. “Consumer” means any natural person obligated or allegedly obligated to pay any debt.

[ 1985, c. 702, §2 (NEW) .]

4. Creditor. “Creditor” means any person who offers or extends credit creating a debt or to whom a debt is owed, but that term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of that debt for another.

[ 1985, c. 702, §2 (NEW) .]

5. Debt. “Debt” means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance or services that are the subject of the transaction are primarily for personal, family or household purposes, whether or not the obligation has been reduced to judgment. “Debt” includes any obligation or alleged obligation for payment of child support owed to, or owed by, a resident of this State and any obligation or alleged obligation relating to a check returned because of insufficient funds if a consumer is subject to an enforcement program operated by a private entity.

[ 2007, c. 214, §1 (AMD) .]

6. Debt collector. “Debt collector” means any person conducting business in this State, the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. “Debt collector” includes persons who furnish collection systems carrying a name that simulates the name of a debt collector and who supply forms or form letters to be used by the creditor even though the forms direct the debtor to make payments directly to the creditor. Notwithstanding the exclusion provided by section 11003, subsection 7, “debt collector” includes any creditor who, in the process of collecting the creditor’s own debts, uses any name other than the creditor’s that would indicate that a 3rd person is collecting or attempting to collect these debts. “Debt collector” includes any attorney-at-law whose principal activities include collecting debts as an attorney on behalf of and in the name of clients, except that any such attorney licensed to practice law in this State is subject exclusively to subchapter 2 and any such attorney not licensed to practice law in this State is subject to this entire chapter. “Debt collector” also includes any person regularly engaged in the enforcement of security interests securing debts. “Debt collector” does not include any person who retrieves collateral when a consumer has voluntarily surrendered possession. A person is regularly engaged in the enforcement of security interests if that person enforced security interests more than 5 times in the previous calendar year. If a person does not meet these numerical standards for the previous calendar year, the numerical standards must be applied to the current calendar year.

[ 2005, c. 475, §1 (AMD) .]

7. Location information. “Location information” means a consumer’s place of abode and his telephone number at that place or his place of employment.

[ 1985, c. 702, §2 (NEW) .]

8. Person. “Person” means any natural person, corporation, trust, partnership, incorporated or unincorporated association and any other legal entity.

[ 1985, c. 702, §2 (NEW) .]

9. Administrator. “Administrator” means the Superintendent of Consumer Credit Protection.

[ 1995, c. 309, §29 (AFF); 1995, c. 309, §22 (RPR); 2007, c. 273, Pt. B, §7 (AFF); 2007, c. 273, Pt. B, §6 (REV) .]

10. Supervised financial organization. “Supervised financial organization” has the same meaning as defined in Title 9-A, section 1-301, subsection 38-A.

Maine Fair Debt Collection Practices Act § 11003. Exclusions

The term debt collector does not include: [1985, c. 702, §2 (NEW).]

1. Officers or employees of a creditor. Any officer or employee of a creditor while, in the name of the creditor, collecting debts for that creditor;

[ 1985, c. 702, §2 (NEW) .]

2. Persons related by common ownership or affiliated by corporate control. Any person while acting as a debt collector for another person, both of whom are related by common ownership or affiliated by corporate control, if the person acting as a debt collector does so only for persons to whom it is so related or affiliated and if the principal business of that person is not the collection of debts;

[ 1985, c. 702, §2 (NEW) .]

3. Officers or employees of the United States or any state. Any officer or employee of the United States or any state or agencies or instrumentalities of the State to the extent that collecting or attempting to collect any debt is in the performance of his official duties;

[ 1985, c. 702, §2 (NEW) .]

4. Persons serving legal process. Any person while serving or attempting to serve legal process on any other person in connection with the judicial enforcement of any debt;

[ 1985, c. 702, §2 (NEW) .]

5. Nonprofit organizations performing consumer credit counseling. Any nonprofit organization which, at the request of consumers, performs bona fide consumer credit counseling and assists consumers in the liquidation of their debts by receiving payments from those consumers and distributing those amounts to creditors;

[ 1985, c. 702, §2 (NEW) .]

6. Attorneys-at-law collecting debts on behalf of a client.

[ 1993, c. 126, §2 (RP) .]

7. Persons collecting debts owed or due to another. Any person collecting or attempting to collect any debt owed or due, or asserted to be owed or due, to another to the extent that the activity:

A. Is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; [1985, c. 702, §2 (NEW).]

B. Concerns a debt which was originated by that person; [1985, c. 702, §2 (NEW).]

C. Concerns a debt which was not in default at the time it was obtained by that person; or [1985, c. 702, §2 (NEW).]

D. Concerns a debt obtained by that person as a secured party in a commercial credit transaction involving the creditor; and [1985, c. 702, §2 (NEW).] [ 1985, c. 702, §2 (NEW) .]

8. Collection activities related to the operation of a business. Any person whose collection activities are confined to and directly related to the operation of a business other than that of a debt collector, such as, but not limited to, financial institutions regulated under Title 9-B.

Maine Fair Debt Collection Practices Act § 11011. Acquisition of location information

1. Communication with person other than consumer. Any debt collector communicating with any person other than the consumer for the purpose of acquiring location information about the consumer shall:

A. Identify himself; state that he is confirming or correcting location information concerning the consumer; and, only if expressly requested, identify his employer; [1985, c. 702, §2 (NEW).]

B. Not state that the consumer owes any debt; [1985, c. 702, §2 (NEW).]

C. Not communicate with any such person more than once, unless requested to do so by that person or unless the debt collector reasonably believes that the earlier response of that person is erroneous or incomplete and that the person now has correct or complete location information; [1985, c. 702, §2 (NEW).]

D. Not communicate by postcard; [1985, c. 702, §2 (NEW).]

E. Not use any language or symbol on any envelope or in the contents of any communication effected by the mails or telegram that indicates that the debt collector is in the debt collection business or that the communication relates to the collection of a debt; and [1985, c. 702, §2 (NEW).]

F. After the debt collector knows the consumer is represented by an attorney with regard to the subject debt and has knowledge of, or can readily ascertain, that attorney’s name and address, not communicate with any person other than that attorney, unless the attorney fails to respond within a reasonable period of time to communication from the debt collector.

Maine Fair Debt Collection Practices Act § 11012. Communication in connection with debt collection

1. Communication with the consumer generally. Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt:

A. At any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a debt collector shall assume that the convenient time for communicating with a consumer is after 8 a.m. and before 9 p.m., local time at the consumer’s location; [1985, c. 702, §2 (NEW).]

B. If the debt collector knows that the consumer is represented by an attorney with respect to that debt and has knowledge of, or can readily ascertain, that attorney’s name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer; or [1985, c. 702, §2 (NEW).]

C. At the consumer’s place of employment if the debt collector knows or has reason to know that the consumer’s employer prohibits the consumer from receiving a communication. [1985, c. 702, §2 (NEW).]

2. Communication with 3rd parties. Except as provided in section 11011, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a post-judgment judicial remedy, a debt collector shall not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor or the attorney of the debt collector.

[ 1985, c. 702, §2 (NEW) .]

3. Ceasing communication. If a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to that debt, except:

A. To advise the consumer that the debt collector’s further efforts are being terminated; [1985, c. 702, §2 (NEW).]

B. To notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by the debt collector or creditor; or [1985, c. 702, §2 (NEW).]

C. Where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy. [1985, c. 702, §2 (NEW).]

If the notice from the consumer is made by mail, notification shall be complete upon receipt.

[ 1985, c. 702, §2 (NEW) .]

4. Consumer defined. For the purpose of this section, the term consumer includes the consumer’s spouse; parent, if the consumer is a minor; guardian; executor; or administrator.

Maine Fair Debt Collection Practices Act § 11013. Prohibited practices

1. Harassment or abuse. A debt collector may not engage in any conduct, the natural consequence of which is to harass, oppress or abuse any person in connection with the collection of a debt. Without limiting the general application of this subsection, the following conduct is a violation of this section:

A. The use or threat of use of violence or other criminal means to harm the physical person, reputation or property of any person; [1985, c. 702, §2 (NEW).]

B. The use of obscene or profane language, or language the natural consequence of which is to abuse the hearer or reader; [1985, c. 702, §2 (NEW).]

C. The publication of a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency or to persons meeting the requirements of Title 10, chapter 210; [1985, c. 702, §2 (NEW).]

D. The advertisement for sale of any debt to coerce payment of the debt; [1985, c. 702, §2 (NEW).]

E. Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse or harass any person at the called number; [1985, c. 702, §2 (NEW).]

F. Except as provided in section 11011, the placement of telephone calls without meaningful disclosure of the caller’s identity; and [1985, c. 702, §2 (NEW).]

G. The use of “shame cards,” “shame automobiles” or similar devices. [1985, c. 702, §2 (NEW).] [ 1985, c. 702, §2 (NEW) .]

2. False or misleading representations. A debt collector may not use any false, deceptive or misleading representation or means in connection with the collection of any debt. Without limiting the general application of this subsection, the following conduct is a violation of this section:

A. The false representation or implication that the debt collector is vouched for, bonded by or affiliated with the United States or any state, including the use of any badge, uniform, seal, insignia or facsimile; [1985, c. 702, §2 (NEW).]

B. The false representation of:

(1) The character, amount or legal status of any debt; or

(2) Any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt; [1985, c. 702, §2 (NEW).]

C. The false representation or implication that any individual is an attorney or that any communication is from an attorney; [1985, c. 702, §2 (NEW).]

D. The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment or sale of any property or wages of any person, unless that action is lawful and the debt collector or creditor intends to take that action; [1985, c. 702, §2 (NEW).]

E. The threat to take any action that may not legally be taken or that is not intended to be taken; [1985, c. 702, §2 (NEW).]

F. The false representation or implication that a sale, referral or other transfer of any interest in a debt shall cause the consumer to:

(1) Lose any claim or defense to payment of the debt; or

(2) Become subject to any practice prohibited by this Act or the Maine Consumer Credit Code, Title 9-A; [1985, c. 702, §2 (NEW).]

G. The false representation or implication that the consumer committed any crime or other conduct in order to disgrace the consumer; [1985, c. 702, §2 (NEW).]

H. Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed; [1985, c. 702, §2 (NEW).]

I. The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued or approved by any court, official or agency of the United States or any state, or which creates a false impression as to its source, authorization or approval; [1985, c. 702, §2 (NEW).]

J. The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer; [1985, c. 702, §2 (NEW).]

K. [1997, c. 155, Pt. D, §1 (RP).]

K-1. The failure to disclose in the initial written communication with the consumer and, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph does not apply to a formal pleading made in connection with a legal action; [1997, c. 155, Pt. D, §2 (NEW).]

L. The false representation or implication that accounts have been turned over to innocent purchasers for value; [1985, c. 702, §2 (NEW).]

M. The false representation or implication that documents are legal process; [1985, c. 702, §2 (NEW).]

N. The use of any business, company or organization name other than the true name of the debt collector’s business, company or organization; [1985, c. 702, §2 (NEW).]

O. The false representation or implication that documents are not legal process forms or do not require action by the consumer; or [1985, c. 702, §2 (NEW).]

P. The false representation or implication that a debt collector operates or is employed by a consumer reporting agency, as defined by Title 10, section 1312, subsection 4. [1985, c. 702, §2 (NEW).] [ 1997, c. 155, Pt. D, §§1, 2 (AMD) .]

3. Unfair practices. A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of this subsection, the following conduct is a violation of this section:

A. The collection of any amount, including any interest, fee, charge or expense incidental to the principal obligation, unless the amount is expressly authorized by the agreement creating the debt or permitted by law; [1985, c. 702, §2 (NEW).]

B. The acceptance by a debt collector from any person of a check or other payment instrument postdated by more than 5 days, unless that person is notified in writing of the debt collector’s intent to deposit that check or instrument not more than 10 nor less than 3 business days prior to the deposit; [1985, c. 702, §2 (NEW).]

C. The solicitation by a debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution; [1985, c. 702, §2 (NEW).]

D. Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on the check or instrument; [1985, c. 702, §2 (NEW).]

E. Causing charges to be made to any person for communications by concealment of the true purpose of the communication. These charges include, but are not limited to, collect telephone calls and telegram fees; [1985, c. 702, §2 (NEW).]

F. Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if:

(1) There is no present right to possession of the property claimed as collateral through an enforceable security interest;

(2) There is no present intention to take possession of the property; or

(3) The property is exempt by law from the dispossession or disablement; [1985, c. 702, §2 (NEW).]

G. Communicating with a consumer regarding a debt by postcard; [1985, c. 702, §2 (NEW).]

H. Using any language or symbol, other than the debt collector’s address, on any envelope when communicating with a consumer by use of the mails or by telegram, except that a debt collector may use his business name if that name does not indicate that he is in the debt collection business; [1985, c. 702, §2 (NEW).]

I. Using or employing notaries public, constables, sheriffs or any other officer authorized to serve legal papers in the collection of a claim; [1985, c. 702, §2 (NEW).]

J. Exercising authority on behalf of a creditor to employ the services of lawyers, unless the creditor has specifically authorized the agency in writing to do so and the debt collector’s course of conduct is at all times consistent with the true relationship of attorney and client between the lawyer and the creditor, such that the debt collector will not demand or obtain in any manner a share of the compensation for services performed by a lawyer in collecting a claim; [1985, c. 702, §2 (NEW).]

K. Failing to return any claim or claims upon written request of the creditor, claimant or forwarder after the tender of such amounts, if any, as may be due and owing to the debt collector, or refusing or intentionally failing to account to its clients for all money collected within 30 days from the last day of the month in which the money is collected or refusing, or intentionally failing, to return to the creditor all valuable papers deposited with a claim when that claim is returned; [1985, c. 702, §2 (NEW).]

L. Commingling money collected for a creditor with the debt collector’s own funds or using any part of a creditor’s money in the conduct of the debt collector’s business; [1985, c. 702, §2 (NEW).]

M. Engaging in the business of lending money to any person or contacting any person for the purpose of securing a loan for any person with which to pay any claim left with it for collection, or recommending any person or persons as a source of funds to pay any such claim; or [1985, c. 702, §2 (NEW).]

N. Threatening to bring legal action in its own name or instituting suits on behalf of others or furnishing legal advice. [1985, c. 702, §2 (NEW).] [ 1985, c. 702, §2 (NEW) .]

4. Reporting to consumer reporting agency. A debt collector may not report solely in its own name any credit or debt information to a consumer reporting agency, as defined by Title 10, section 1312, subsection 4.

[ 1991, c. 453, §8 (NEW); 1991, c. 453, §10 (AFF) .]

5. Reporting certain unpaid medical expenses; court or administrative orders. A debt collector may not report to a consumer reporting agency any credit or debt information regarding overdue medical expenses owed by a parent for a minor child if the debt collector is notified orally or in writing of the existence of a court order or administrative order identifying another person as the party responsible for payment of medical expenses for that minor child. In addition, a report may not be made until after the debt collector has notified, or made a good faith effort to notify, the responsible party of that party’s obligation to pay the overdue medical expenses. The debt collector may request reasonable verification of the order, including requesting a certified copy of the order.

Maine Fair Debt Collection Practices Act § 11014. Validation of debts

1. Written notice. Within 5 days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing:

A. The amount of the debt; [1985, c. 702, §2 (NEW).]

B. The name of the creditor to whom the debt is owed; [1985, c. 702, §2 (NEW).]

C. A statement that unless the consumer, within 30 days after receipt of the notice, disputes the validity of the debt or any portion of the debt, the debt will be assumed to be valid by the debt collector; [1985, c. 702, §2 (NEW).]

D. A statement that if the consumer notifies the debt collector in writing within the 30-day period that the debt, or any portion of the debt, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of the verification or judgment will be mailed to the consumer by the debt collector; and [1985, c. 702, §2 (NEW).]

E. A statement that, upon the consumer’s written request within the 30-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. [1985, c. 702, §2 (NEW).]

2. Cease collection. If the consumer notifies the debt collector in writing within the 30-day period described in subsection 1 that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt or any disputed portion of the debt, until the debt collector obtains verification of the debt or a copy of the judgment, or the name and address of the original creditor, and a copy of the verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.

Maine Fair Debt Collection Practices Act § 11015. Multiple debts

If any consumer owes multiple debts and makes any single payment to any debt collector with respect to the debts, the debt collector may not apply that payment to any debt which is disputed by the consumer and, where applicable, shall apply that payment in accordance with the consumer’s directions.

Maine Fair Debt Collection Practices Act § 11016. Furnishing certain deceptive forms

1. Unlawful activity. It is unlawful to design, compile and furnish any form knowing that the form would be used to create the false belief in a consumer that a person other than the creditor of the consumer is participating in the collection of or in an attempt to collect a debt the consumer allegedly owed the creditor, when in fact that person is not so participating.

[ 1985, c. 702, §2 (NEW) .]

2. Extent of liability. Any person who violates this section shall be liable to the same extent and in the same manner as a debt collector is liable under section 11054 for failure to comply with a provision of this Act.

Maine Fair Debt Collection Practices Act § 11017. Repossession activity

1. Right to take possession after default. A debt collector acting on behalf of a creditor may take possession of collateral only if possession can be taken without entry into a dwelling, unless that entry has been authorized after default and without the use of force or other breach of the peace.

[ 1993, c. 126, §3 (NEW) .]

2. Return of private property. A debt collector shall inventory any unsecured property taken with repossessed collateral and immediately notify the consumer that the property will be made available in a manner convenient to the consumer.

Maine Fair Debt Collection Practices Act § 11018. Privacy of consumer financial information

A collection agency or repossession company shall comply with the provisions of the federal Gramm-Leach-Bliley Act, 15 United States Code, Section 6801 et seq. (1999) and the applicable implementing federal Privacy of Consumer Information regulations, as adopted by the Office of the Comptroller of the Currency, 12 Code of Federal Regulations, Part 40 (2001); the Board of Governors of the Federal Reserve System, 12 Code of Federal Regulations, Part 216 (2001); the Federal Deposit Insurance Corporation, 12 Code of Federal Regulations, Part 332 (2001); the Office of Thrift Supervision, 12 Code of Federal Regulations, Part 573 (2001); the National Credit Union Administration, 12 Code of Federal Regulations, Part 716 (2001); the Federal Trade Commission, 16 Code of Federal Regulations, Part 313 (2001); or the Securities and Exchange Commission, 17 Code of Federal Regulations, Part 248 (2001), if the collection agency or repossession company is a financial institution as defined in those regulations. This section is not intended to permit the release of health care information except as permitted by Title 22, section 1711-C or Title 24-A, chapter 24.

Maine Fair Debt Collection Practices Act § 11031. Licenses

1. Licenses required. Except as provided in this subchapter, no person may conduct the business of a debt collector in this State without a valid license issued by the superintendent.

[ 1985, c. 702, §2 (NEW) .]

2. Licenses. Licenses granted by the superintendent under this section are for a period of 2 years and expire on July 31st or at such other times as the superintendent may designate. Each license may be renewed biennially as long as the superintendent regards the business as responsible and safe, but in all cases terminate unless renewed by the expiration date. Each license must plainly state the name and business address of the licensee and be posted in a conspicuous place in the office where the business is transacted. The fee for each biennial license is $400. When the unexpired license term of an applicant is or will be less than one year at a time of licensure, the license fee may not exceed 1/2 the biennial license fee. If a licensee desires to carry on business in more than one place, the licensee shall procure a branch office license for each additional place where the business is to be conducted. The fee for each biennial branch office license is $200.

[ 1999, c. 184, §24 (AMD) .]

3. Applications. Applications for a license shall comply with the following requirements.

A. The superintendent may require such financial statements and references of all applicants for a license as he deems necessary; and may make or cause to be made an independent investigation concerning the applicant’s reputation, integrity, competence and net worth. The investigation may cover all managerial personnel employed by or associated with the applicant. [1985, c. 702, §2 (NEW).]

B. Every application for a license shall be acted upon promptly by the superintendent. If the application complies in form and substance with this Act and the rules promulgated under this Act and the superintendent finds that the applicant is qualified under this Act, the superintendent shall issue a license forthwith. If the application is not sufficient in form or substance, the superintendent shall reject it and notify the applicant of the manner in which it is deficient. The rejection shall be without prejudice to the filing of a new application. If the superintendent finds that the applicant is not qualified under this Act, he shall reject the application and shall give the applicant written notice of the rejection and the reasons for the rejection. In addition, any foreign business, incorporated or unincorporated, before obtaining a license in order to conduct the business of a debt collector within the State shall furnish the superintendent with:

(1) A certified copy of its charter and bylaws; and

(2) A power of attorney appointing the superintendent to be the true and lawful attorney of the business in and for this State, upon whom all lawful process in an action or proceeding against the business may be served with the same effect as if the business existed in this State. The power of attorney shall stipulate and agree on the part of the business that any lawful process against the company which is served on the attorney shall be the same in legal force and validity as if served on the business itself, and that the authority shall continue in force irrevocable so long as any liability remains outstanding against the business in this State. A certificate of the appointment, duly certified and authenticated shall be filed in the office of the superintendent and a copy certified by him shall be received in evidence in all courts of this State. [1985, c. 702, §2 (NEW).] [ 1985, c. 702, §2 (NEW) .]

4. Change in ownership or management. A change of 25% or more in ownership or management of any corporate licensee, or of the partners in any partnership licensee, shall require the filing of a new application under this section.

The administrator shall require each licensee to file and maintain in force a surety bond, in a form prescribed by and acceptable to the administrator and in such sum as the administrator may deem reasonably necessary, to safeguard the interests of the public. The terms of the bond must run concurrent with the period of time during which the license will be in effect. The bond may be cancelled by the surety on the bond by giving 30 days’ notice to the administrator, but the cancellation may not in any manner affect the liability of the surety as to anything occurring prior to the cancellation.

Maine Fair Debt Collection Practices Act § 11033. Prior convictions as disqualifications

In evaluating a license application, the superintendent shall consider the criminal record of any individual applicant, of any partner, if the applicant is a partnership, of any officer or director, if the applicant is a corporation, or of any employee of the foregoing, in accordance with Title 5, chapter 341. No license may be granted to any lawyer, whose license to practice law has been suspended or revoked, during the effective period of that suspension or revocation.

Maine Fair Debt Collection Practices Act § 11034. Rulemaking

The superintendent may make such reasonable rules, not inconsistent with this chapter, pertaining to the operation of the business of licensees as he deems necessary to safeguard the interest of the public. The rules shall be adopted in the manner prescribed in the Maine Administrative Procedure Act, Title 5, chapter 375, subchapter II.

Maine Fair Debt Collection Practices Act § 11035. Advisory rulings

The superintendent may issue advisory rulings pertaining to the applicability of any statutory provision or any rule adopted under this chapter and shall provide by rule for the filing and prompt disposition of requests for advisory rulings.

Maine Fair Debt Collection Practices Act § 11036. Reports and records

1. Financial statements. The administrator may at any time require a licensee to submit to the bureau such financial statements as determined necessary for examination by the administrator so that the administrator may determine whether or not the licensee is financially responsible to carry on a debt collector’s business.

[ 1997, c. 727, Pt. B, §23 (AMD) .]

2. Books and records. The superintendent shall require the licensee to keep such books and records in this State as will enable the superintendent to determine whether the provisions of this chapter are being complied with. At the superintendent’s option, a licensee may keep the books and records in a location outside this State, provided that the licensee agrees to produce the books and records in this State upon demand. Every licensee shall preserve the records of final entry used in that business for a period of 2 years after final remittance is made on any account placed with the licensee for collection or after any account has been returned to the claimant on which one or more payments have been made.

Maine Fair Debt Collection Practices Act § 11037. Voluntary termination of business

1. Procedures prior to termination. Prior to voluntarily ceasing business as a debt collector, a licensee shall:

A. Notify the superintendent of the proposed termination at least 30 days prior to its effective date; [1985, c. 702, §2 (NEW).]

B. Notify all creditor clients in writing of the proposed termination at least 30 days prior to its effective date; [1985, c. 702, §2 (NEW).]

C. Provide all creditor clients with detailed final accountings of all debt accounts; [1985, c. 702, §2 (NEW).]

D. Remit all money held in the agency trust account to each respective creditor client; [1985, c. 702, §2 (NEW).]

E. Return all papers, documents and other property of creditor clients provided to the licensee in connection with its collection efforts to those clients; and [1985, c. 702, §2 (NEW).]

F. Return its license to the superintendent for cancellation. [1985, c. 702, §2 (NEW).]

2. Transfer of accounts. No licensee, when terminating its business, may transfer an account to another debt collector without first securing the written permission of the client.

Maine Fair Debt Collection Practices Act § 11038. Insolvency and liquidation

1. Insolvency. If the superintendent determines that a licensee located in this State is insolvent or that he has collected accounts but has failed to remit money due to any claimant or forwarder within 30 days from the end of the month in which collection was made or, when the license of a debt collector has expired or terminated for any reason whatsoever, the superintendent, if he determines that action necessary to protect the public interest, may apply to the Superior Court of the county in which the main office of the debt collector is located, authorizing him to take possession of the assets and the books and records of the licensee for the purpose of liquidating its business and for such other relief as the nature of the case and the interest of the claimants or forwarders may require. The court, after citing the licensee to show cause why the superintendent should not be authorized to take possession of the assets and books of accounts and records for the purpose of liquidating the business of the licensee, and, after hearing the allegations and proofs of the parties and determining the facts, may upon the merits dismiss the application or, if it finds that action necessary for the protection of the public, issue its order authorizing the superintendent to take possession of the books and records and to liquidate the business and granting such other relief as it deems necessary under the circumstances.

[ 1985, c. 702, §2 (NEW) .]

2. Powers and duties. In every case where the court issues an order authorizing the superintendent to take possession of the books and records and to liquidate the business of a licensee, the superintendent shall be vested with all of the powers, duties, authority and responsibility of a receiver, and without limiting the generality of this subsection and subject to the approval of the court.

A. The liquidation of the business shall be made by and under the supervision of the superintendent, either in the name of the superintendent or in the name of the licensee, and the superintendent or his successor shall be vested with title to all of the assets, including the proceeds of the financial security which has been filed with the superintendent and the proceeds of any and all money paid directly to the claimant or forwarder by any debtor prior to the date of the order. Money paid to the licensee or to the superintendent after the date of the order shall be disposed of by the superintendent. [1985, c. 702, §2 (NEW).]

B. The superintendent for the purpose of collection or liquidation may sell, assign, convey and transfer or approve the sale, assignment, conveyance and transfer of the assets of the debt collector under such terms and conditions as the superintendent deems best for the best interests of the claimants of the debt collector. [1985, c. 702, §2 (NEW).]

C. The superintendent shall cause notice to be given by advertisement in such newspapers as he may direct weekly for 4 consecutive weeks after the issue of the order authorizing him to take possession of the assets of the debt collector, calling on all persons who may have claims against the licensee to bring the claims to the superintendent and make legal proof of the claims at a place and time to be specified. The superintendent shall mail a similar notice to all persons whose names appear as claimants or forwarders upon the books and records of the licensee or as may appear in the records of the superintendent. Any claimant or forwarder whose portion of the collections has not been properly remitted shall file a claim, which shall be allowed for the amount actually due the claimant or forwarder after deduction of a commission or fee that may be due and owing the licensee. If the superintendent doubts the justice and validity of any claim, he may reject the claim and serve notice of that rejection upon the claimant, either by mail or personally. An affidavit of service of notice, which shall be prima facie evidence of service, shall be filed with the superintendent. The claimant may, within 30 days after receipt of notice of rejection, file a petition in the court in which the proceedings are pending to establish his claim or claims. Claims presented after the expiration of the time fixed in the notice to the claimants or forwarders shall be entitled to receive only liquidating dividends declared after presentation, unless otherwise ordered by the court. The court may fix a date after which all claimants may be barred. [1985, c. 702, §2 (NEW).]

D. The assets of the licensee in liquidation, exclusive of any bond proceeds, shall be disbursed in the following order:

(1) Expenses of liquidation;

(2) The full amount of claims of each claimant or forwarder of the licensee whose claim against the licensee has been approved by the superintendent;

(3) Reserves for unclaimed and unpaid collections;

(4) General creditors; and

(5) Residue to licensee. [1985, c. 702, §2 (NEW).]

E. All accounts and valuable papers given to the licensee by the claimant or forwarders in possession of the superintendent pertaining to accounts placed with the licensee for collection shall be returned to the claimant or forwarder by the superintendent within 30 days after verification has been made. [1985, c. 702, §2 (NEW).]

F. Nothing contained in this subsection may preclude a creditor of a debt collector from prosecuting any and all legal actions and pursuing any and all remedies afforded him by the laws of this State for collection of debts until such time as the superintendent takes possession of the debt collector’s agency under this section.

Maine Fair Debt Collection Practices Act § 11039. Fees

The aggregate of license fees provided for by this chapter is appropriated for the use of the Bureau of Consumer Credit Protection. Any balance of these funds shall not lapse, but shall be carried forward to be expended for the same purposes in the following fiscal year.

Maine Fair Debt Collection Practices Act § 11040. Penalty

Any person who carries on business as a debt collector without first obtaining a license pursuant to this subchapter, or who carries on that business after the revocation, suspension or expiration of any license, or who performs duties relating to the conduct of a debt collector on behalf of another person as an officer, director, employee, agent or in any other capacity, unless the other person has first obtained a license which has not expired, but been revoked nor suspended is guilty of a Class E crime.

Maine Fair Debt Collection Practices Act § 11051. Investigation, suspension and revocation of licenses

The Bureau of Consumer Credit Protection may investigate the records and practices of a licensee in accordance with Title 9-A, section 6-106, and may charge for expenses incurred pursuant to Title 9-A, section 6-106, subsection 6. The superintendent may file a complaint with the District Court to suspend or revoke a license issued pursuant to this chapter, if, after investigation or hearing, or both, the superintendent has reason to believe that the licensee has violated any provisions of this chapter or any administrative rules issued pursuant to this chapter, or has failed to maintain its financial condition sufficient to qualify for a license on an original application.

Maine Fair Debt Collection Practices Act § 11051-A. Enforcement; financial institutions

When a supervised financial organization is the creditor, the Superintendent of Financial Institutions has concurrent examination authority under section 11051. The administrator and the Superintendent of Financial Institutions shall cooperate in enforcing this chapter.

Maine Fair Debt Collection Practices Act § 11052. Appeals

Any appeal from the decision of the superintendent may be taken in accordance with Title 5, chapter 375, subchapter VII.

Maine Fair Debt Collection Practices Act § 11053. Civil penalty

The superintendent may, through the Attorney General, bring a civil action for a penalty not to exceed $5,000 against any person who willfully violates this chapter. No civil penalty pursuant to this section may be imposed for violations of this chapter occurring more than 2 years before the civil action is brought.

Maine Fair Debt Collection Practices Act § 11054. Civil liability

1. Failure to comply with this Act. Except as otherwise provided by this section, any debt collector who fails to comply with any provisions of this Act with respect to any person is liable to that person in an amount equal to the sum of:

A. Any actual damage sustained by that person as a result of such failure; [1985, c. 702, §2 (NEW).]

B. In the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000; [1985, c. 702, §2 (NEW).]

C. In the case of a class action:

(1) Such amount for each named plaintiff as may be recovered under paragraph A; and

(2) Such amount as the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of $500,000 or 1% of the net worth of the debt collector; and [1985, c. 702, §2 (NEW).]

D. In the case of any successful action to enforce the liability set out in this subsection, the costs of the action, together with a reasonable attorney’s fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees, reasonable in relation to the work expended and costs. [1985, c. 702, §2 (NEW).]

2. Considerations affecting liability. In determining the amount of liability in any action under subsection 1, the court shall consider, among other relevant factors:

A. In any individual action, the frequency and persistence of noncompliance by the debt collector, the nature of that noncompliance and the extent to which that noncompliance was intentional; or [1985, c. 702, §2 (NEW).]

B. In any class action, the frequency and persistence of noncompliance by the debt collector, the nature of that noncompliance, the resources of the debt collector, the number of persons adversely affected and the extent to which the debt collector’s noncompliance was intentional. [1985, c. 702, §2 (NEW).]

3. Defenses. A debt collector may not be held liable in any action brought under this chapter if the debt collector shows, by a preponderance of evidence, that the violation was not intentional and resulted from a bona fide error, notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.

[ 1985, c. 702, §2 (NEW) .]

4. Action to enforce liability. An action to enforce liability under this section shall be brought within one year from the date on which the violation occurs.

[ 1985, c. 702, §2 (NEW) .]

5. Action in good faith. No provision of this section imposing any liability may apply to any act done or omitted in good faith in conformity with any rule or advisory ruling of the superintendent, notwithstanding that, after the act or omission has occurred, the rule or advisory ruling is amended, rescinded, repealed or determined by judicial or other authority to be invalid for any reason.

Title 9-A: MAINE CONSUMER CREDIT CODE

Article 5: Remedies and Penalties

Maine Fair Debt Collection Practices Act § 5-107. Extortionate extensions of credit

1. If it is the understanding of the creditor and the consumer at the time an extension of credit is made that delay in making repayment or failure to make repayment could result in the use of violence or other criminal means to cause harm to the person, reputation or property of any person, the repayment of the extension of credit is unenforceable through civil judicial processes against the consumer.

[ 1973, c. 762, §1 (NEW) .]

2. If it is shown that an extension of credit was made at an annual rate exceeding 33% calculated according to the actuarial method and that the creditor then had a reputation for the use or threat of use of violence or other criminal means to cause harm to the person, reputation or property of any person to collect extensions of credit or to punish the nonrepayment thereof, there is prima facie evidence that the extension of credit was unenforceable under subsection 1.

Maine Fair Debt Collection Practices Act § 5-116. Illegal, fraudulent or unconscionable conduct in attempted collection of debts

1. In attempting to collect an alleged debt arising from a consumer credit sale, consumer lease or consumer loan, a person shall not:

A. Use or threaten force or violence; [1973, c. 762, §1 (NEW).]

B. Threaten criminal prosecution; [1973, c. 762, §1 (NEW).]

C. Disclose or threaten to disclose information affecting the debtor’s reputation for credit worthiness with knowledge or reason to know that the information is false; [1973, c. 762, §1 (NEW).]

D. Communicate more than twice or threaten to communicate more than twice to the debtor’s employer information concerning the existence of a debt before or after obtaining final judgment against the debtor except as permitted by statute; [1973, c. 762, §1 (NEW).]

E. Disclose or threaten to disclose to a person other than the debtor or his spouse information affecting the debtor’s reputation, whether or not for credit worthiness, with knowledge or reason to know that the other person does not have a legitimate business need for the information, but this subsection does not prohibit the disclosure to another person of information permitted to be disclosed to him by statute; [1973, c. 762, §1 (NEW).]

F. Disclose or threaten to disclose information concerning the existence of a debt known to be disputed by the debtor without disclosing that fact; [1973, c. 762, §1 (NEW).]

G. Claim, or attempt or threaten to enforce a right that has been barred by statute or a final order of the Supreme Judicial Court or a court of the United States; [1973, c. 762, §1 (NEW).]

H. Use a communication which simulates legal or judicial process or which gives the appearance of being authorized, issued or approved by a government, government agency, or attorney-at-law when it is not; or [1973, c. 762, §1 (NEW).]

I. Engage in conduct in violation of a rule adopted and published by the administrator after like conduct has been restrained or enjoined by a final order of a court in a civil action by the administrator against any person pursuant to the provisions or injunctions against fraudulent or unconscionable agreements or conduct, section 6-111.

Maine Fair Debt Collection Practices Act § 5-117. Prohibited practices

A seller may not: [1991, c. 524, §1 (NEW).]

1. Misrepresentations. Misrepresent any material fact relating to the terms or conditions of sale;

[ 1991, c. 524, §1 (NEW) .]

2. False impressions. Create an impression that is false or the seller does not believe to be true; and

[ 1991, c. 524, §1 (NEW) .]

3. False promises. Promise performance that the seller does not intend to perform or knows will not be performed.

[ 1991, c. 524, §1 (NEW) .]

Maine Fair Debt Collection Practices Act § 5-201. Effect of violations on rights of parties

1. If a creditor has violated the provisions of this Act applying to collection of excess charges or enforcement of rights, section 1-201, subsection 5, waiver clauses, section 1-107, use of multiple agreements, section 3-304, certain negotiable instruments, section 3-307, assignee subject to defenses, sections 3-403 and 3-404, restrictions on liability in consumer leases, section 3-401, balloon payment, section 3-308, security in sales or leases, section 3-301, cross-collateral, sections 3-302 and 3-303, assignments of earnings, section 3-305, attorney’s fees, section 2-507, limitations on default charges, section 3-402, authorizations to confess judgment, section 3-306, restrictions on interests in land as security, section 2-307, limitations on the schedule of payments or loan term for regulated loans, section 2-308, for credit insurance, section 4-104, separate charges for excess charge for property insurance, section 4-301, restrictions on deficiency judgments, section 5-103, garnishment before judgment, section 5-104, or limitations on garnishment, section 5-105, cure of default, section 5-111, misrepresentation, section 5-115, illegal, fraudulent or unconscionable conduct in an attempted collection of debts, section 5-116, any aggrieved consumer has a right to recover actual damages from a person violating this Act, or in lieu thereof any consumer named as a plaintiff in the complaint as originally filed has a right to recover from a person violating this Act an amount determined by the court not less than $250 nor more than $1,000. With respect to violations from open-end credit, no action pursuant to this subsection may be brought more than 2 years after the violations occurred. With respect to violations arising from other consumer credit transactions, no action pursuant to this subsection may be brought more than 2 years after the due date of the last scheduled payment of the agreement.

[ 1979, c. 660, §9 (AMD) .]

2. If a creditor has violated the provisions of this Act applying to authority to make supervised loans, section 2-301, the debtor is not obligated to pay any application fee, prepaid finance charge or closing cost, nor the loan finance charge owed for the first 12 months of the loan. If the debtor has paid any part of the application fee, prepaid finance charge, closing cost or loan finance charge owed for the first 12 months of the loan, the debtor has a right to recover the payment from the person violating this Act or from an assignee of that person’s rights who undertakes direct collection of payments or enforcement of rights arising from the debt. With respect to violations arising from loans made pursuant to open-end credit, no action pursuant to this subsection may be brought more than 2 years after the violation occurred. With respect to violations arising from other loans, no action pursuant to this subsection may be brought more than one year after the due date of the last scheduled payment of the agreement pursuant to which the charge was paid.

[ 1993, c. 496, §1 (AMD) .]

3. A debtor is not obligated to pay a charge in excess of that allowed by this Act, and if he has paid an excess charge he has a right to a refund. A refund may be made by reducing the debtor’s obligation by the amount of the excess charge. If the debtor has paid an amount in excess of the lawful obligation under the agreement, the debtor may recover the excess amount from the person who made the excess charge or from an assignee of that person’s rights who undertakes direct collection of payments from or enforcement of rights against debtors arising from the debt.

[ 1973, c. 762, §1 (NEW) .]

4. If a creditor has contracted for or received a charge in excess of that allowed by this Act, or if a debtor is entitled to a refund and a person liable to the debtor refuses to make a refund within a reasonable time after demand, the debtor may recover from the creditor or the person liable an amount determined by the court not less than $250 nor more than $1,000. With respect to excess charges arising from open-end credit, no action pursuant to this subsection may be brought more than 2 years after the time the excess charge was made. With respect to excess charges arising from other consumer credit transactions, no action pursuant to this subsection may be brought more than one year after the due date of the last scheduled payment of the agreement pursuant to which the charge was made, or the date the agreement was paid in full, whichever was earlier.

[ 1987, c. 129, §65 (AMD) .]

5. Except as otherwise provided, no violation of this Act impairs rights on a debt.

[ 1973, c. 762, §1 (NEW) .]

6. If an employer discharges an employee in violation of the provisions prohibiting discharge, section 5-106, the employee may within one year bring a civil action for recovery of wages lost as a result of the violation and for an order requiring the reinstatement of the employee. Damages recoverable shall not exceed lost wages for 6 weeks.

[ 1973, c. 762, §1 (NEW) .]

7. A creditor has no liability under subsection 1 or subsection 4 if, within 60 days after discovering an error, and prior to the institution of an action under this section or the receipt of written notice of the error, the creditor notifies the person concerned of the error and corrects the error. If the violation consists of a prohibited agreement, giving the debtor a corrected copy of the writing containing the error is sufficient notification and correction. If the violation consists of an excess charge, correction shall be made by an adjustment or refund.

[ 1985, c. 763, Pt. A, §47 (AMD) .]

8. If the creditor establishes by a preponderance of evidence that a violation is unintentional and the result of a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such violation or error, no liability is imposed under subsections 1 and 3, the validity of the transaction is not affected, and no liability is imposed under subsection 4, except for refusal to make a refund.

[ 1993, c. 496, §2 (AMD) .]

9. In an action in which it is found that a creditor has violated this Act, the court shall award the debtor the costs of the action together with reasonable attorney’s fees. Reasonable attorney’s fees shall be determined by the value of the time reasonably expended by the attorney and not by the amount of the recovery on behalf of the debtor.

[ 1973, c. 762, §1 (NEW) .]

10. A creditor has no liability under subsection 1 or subsection 4, or under subsection 2 of section 6-113, for any act done or omitted in good faith in conformity with any rule, regulation or interpretation thereof by the administrator, notwithstanding that after such act or omission has occurred, such rule, regulation or interpretation is amended, rescinded or determined by judicial or other authority to be invalid for any reason.

confidential informationThere may be instances where discussing your situation over a public forum could potentially compromise your interests. On these occasions we will contact you directly via email in order to answer your inquiry in a confidential manner.

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