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Credit Repair Laws by State
South Carolina
SC ST § 37-7-101
§ 37-7-101. Definitions. As used in this chapter: (1) "Consumer" means consumer as defined in Section 37-1-301(10). (2) "Credit counseling organization" means a person providing or offering to provide to consumers credit counseling services for a fee, compensation, or gain, or in the expectation of a fee, compensation, or gain, including debt management plans. (b) This term does not include the following when acting in the regular course of their respective businesses and professions: (3) "Credit counseling service" means: (b) improving or offering to improve a consumer's credit record, history, or rating; (4) "Credit counselor" means an employee or agent of a credit counseling organization engaging in services described in subsection (3) of this section. (5) "Creditor" means the person who grants credit in a consumer credit transaction or, except as otherwise provided, an assignee of a creditor's right to payment, but the term does not in itself impose on an assignee an obligation of his assignor. In the case of credit granted pursuant to a credit card, the 'person who grants credit' is the card issuer and not another person honoring the credit card. (6) "Debt management plan" or "DMP" means a program in which an organization agrees to engage in debt settlement or debt pooling and distribution services on behalf of a consumer with the consumer's creditors and under which the consumer gives money or control of his funds to the organization for distribution to the consumer's creditors. (7) "Debt settlement" means any action or negotiation initiated or taken by or on behalf of a consumer with a creditor of the consumer for the purpose of obtaining debt forgiveness of a portion of the credit extended by the creditor to the consumer or a reduction of payments, charges, or fees payable by the consumer. (8) "Debtor" means the person or persons for whom the credit counseling service is performed. (9) "Department" means the South Carolina Department of Consumer Affairs. (10) "Licensee" means a person licensed pursuant to this chapter. (11) "Nonprofit organization" means a person exempt from taxation pursuant to 26 U.S.C. Section 501(c)(3) of the Internal Revenue Code. (12) "Person" means any individual, corporation, partnership, association, unincorporated organization, or other form of entity, however organized, including a nonprofit organization. § 37-7-102. Licensing requirement. A person may not engage in credit counseling services in South Carolina, whether or not the person has any office, facility, agent, or other physical presence in South Carolina, unless the person obtains from the department a license issued pursuant to this chapter. § 37-7-103. Surety bonds. (A) A credit counseling organization may not offer or agree to offer credit counseling services in this State without first filing a surety bond with the department. The amount of the surety bond must equal or exceed the total amount of South Carolina clients' funds in the applicant's or licensee's trust account at the time of application for license or renewal, as determined by the department, but the surety bond must be at least twenty-five thousand dollars. The surety bond is conditioned upon the faithful accounting of all money collected upon accounts entrusted to a credit counseling organization engaged in the business of credit counseling or its employees and agents. (B) The surety bond must be: (2) executed by a surety company authorized by the laws of this State to transact business within this State; § 37-7-104. License application as credit counseling organization and credit counselor; contents; fee. (A) A person required to be licensed as a credit counseling organization must submit to the department an application for a license on forms prescribed by the department. The applicant shall file an application with the department in writing, under oath: (2) a description of the ownership interest of any officer, director, member, partner, agent, or employee of the applicant in the affiliate or subsidiary of the applicant or in another entity that provides a service to the applicant or a consumer relating to the applicant's credit counseling organization; (B) Each application for a license as a credit counseling organization must be accompanied by a nonrefundable fee of one hundred dollars for each business location, an investigation fee of fifty dollars, and the actual cost of obtaining criminal history record checks. (C)(1) The application for a license as a credit counselor must include: (b) the name of the employer credit counseling organization; § 37-7-105. Continuing professional education requirements. (A) Licensees must complete at least twelve hours of continuing professional education every two years. At least six of the twelve hours must be earned in a live instructional setting as opposed to a correspondence course or similar instructional method. If the organization is a sole proprietorship or partnership, owners and partners must complete the required twelve hours of continuing professional education every two years. If the organization is a limited liability company or corporation, any member or president, chief executive officer, or other officer who has ownership interest of twenty-five percent or greater and who actively participates in the organization must complete the required twelve hours of continuing professional education every two years. The continuing professional education completed must be reported to the department every two years on a form approved by its showing the date and title of the courses taken, the teacher or sponsor of the course taken, and the hours of continuing professional education claimed for the course. If the course is taught in a classroom setting, fifty minutes of classroom contact equals one hour of continuing professional education. Course sponsors must maintain records of attendees for two years after the course. (B) Documentation of attendance at the courses or correspondence courses completed must be maintained by the licensee and consists of a certificate of completion issued by the teacher or sponsor of the course showing the recommended number of hours of continuing professional education. This documentation is subject to inspection by the department for up to two years after the date of the course. (C) The department shall: (2) appoint two credit counselors and one representative of the department to a panel for two-year terms to approve courses offered by sponsors other than the department as to their qualifications as continuing professional education. The panel may conduct its meetings by way of a conference call. The department shall develop a questionnaire to ascertain the interest and background of potential members of this panel. (D) If a licensee fails to complete his continuing professional education in a timely manner, the license expires and the licensee shall pay a penalty not in excess of one hundred dollars to renew the license. (E) A licensee may request an administrative hearing to appeal the expiration of its license for failure to complete the continuing professional education requirements. A license may be renewed without penalty within thirty days after the expiration if the licensee completes the professional education requirements. § 37-7-106. Grounds for refusal to license, suspension, revocation or refusal to renew. The department may refuse to license an applicant or suspend or revoke a license or refuse to renew a license issued pursuant to this chapter if it finds, after notice and a hearing pursuant to the Administrative Procedures Act, that the applicant or his agent has: (2) violated a provision of this chapter; § 37-7-107. Issuance or denial of license; contents and posting; renewal. (A) Upon the filing of a complete application for a license, accompanied by the fee required, if the department finds that the financial responsibility and condition, character, qualifications, and general fitness of the applicant, and of the members if the applicant is a co-partnership, association, or limited liability company, and of the officers and directors if the applicant is a corporation, are such as to command the confidence of the community and to warrant belief that the business may be operated honestly, fairly, and in accordance with all applicable state and federal laws, it shall license the applicant and issue a license. If the department does not so find, it shall refuse to license the applicant and shall notify him of the denial. (B) Upon the receipt of the license, a licensee may engage in the business for which the license is issued. The issued license is nontransferable and nonassignable. (C) Each license issued to a licensee must state the address or addresses at which the business is to be conducted and must state fully the name of the licensee and the date of the license. A copy of the license must be posted prominently in each place of business of the licensee. (D) A license issued pursuant to this section expires on December thirty-first of each year. A license must be renewed by filing with the department, at least thirty days before the expiration of the license, a complete renewal application, containing the information the department requires to determine the existence and effect of any material changes from the information contained in the applicant's original application, annual reports, or previous renewal application. Each credit counseling organization renewal application must be accompanied by a nonrefundable fee of one hundred dollars for each business location. Each credit counselor renewal application must be accompanied by a nonrefundable fee of forty dollars. § 37-7-108. Requirements for engaging in credit counseling services or debt management plans; preparation and contents of budget analysis; notice regarding services. A credit counseling organization, through its credit counselors, may not engage in credit counseling services or a debt management plan unless: (2) a thorough and written budget analysis is compiled and a copy delivered to the debtor. A licensee may not accept an account unless a written and thorough budget analysis indicates that the services are suitable for the debtor and that the debtor can reasonably meet the requirements of the budget analysis. The budget analysis must contain all of the following information about the debtor: § 37-7-109. Debt management plan; fee; form for consent of creditors; notice of plan to creditors; presumed consent. (A) Upon establishing a debt management plan for a debtor, a licensee may charge and receive a setup fee as established by the department by regulation. If, within forty-five days of establishing the debt management plan, the lack of consent from the debtor's creditors causes the DMP to be no longer suitable for the debtor, the fee must be returned to the debtor and the debtor's account closed. (B) Consent from the debtor's creditors must be recorded on a separate form to be kept in the debtor's file. The form must contain: (2) the manner in which consent was sought; (C) The consent of a creditor may be sought by sending a notice of a debt management plan to a creditor by appropriate means, including by telephone, facsimile, electronic mail, or first class mail. If the creditor does not respond within fourteen days after the sending of the notice, it is presumed that the creditor has given consent. (D) If a payment under the debt management plan is sent to a creditor, acceptance of the payment or plan is presumed seven days after sending the payment. § 37-7-110. Written contract; contents; required disclosures; cancellation of plan. (A) A written contract is required. A service that requires any payment, fee, or other consideration may not be provided by a credit counseling organization for a consumer unless a written and dated contract for the purchase of those services, which meets the requirements of subsections (B) and (C), has been signed by the consumer. This section does not apply to the setup fee described in Section 37-7-109(A). (B) A contract referred to in subsection (A) does not meet the requirements of this subsection unless it includes in writing: (2) a reasonable estimate of all payments and fees to be made by the consumer to the credit counseling organization over the term of the contract, including a maximum amount; (C) The written contract must also contain a disclosure that the: (2) licensee may not require, as a condition of entering into a DMP, a consumer to purchase any other product or service, or solicit or offer to sell any other product or service to the consumer during the term of the DMP; (D) The licensee must cancel a debt management agreement upon consumer request at any time for any reason. A consumer must give at least ten days' notice to the licensee of a request to cancel. A consumer who cancels a debt management agreement is entitled to a full refund of all unexpended funds that the consumer has paid to the licensee. § 37-7-111. Funds paid to licensee for distribution to creditors; trust accounts; duties and responsibilities. (A) Funds paid to the licensee by or on behalf of a consumer for disbursement to the consumer's creditors must be deposited in a trust account established by the licensee for the benefit of debtors. (B) A credit counseling organization shall: (2) deposit a payment from a debtor not later than one business day after receipt of the payment; § 37-7-112. Fees. A licensee may not charge a consumer a fee except as established by the department by regulation. § 37-7-113. Individualized counseling and education session. A licensee shall provide the consumer with an individualized counseling and education session that at a minimum addresses the following topics: managing household finances, managing credit and debt, budgeting, and personal savings strategies. § 37-7-114. Records; maintenance and preservation. (A) Each credit counseling organization shall maintain and preserve in its licensed offices complete and accurate books, accounts, and records as the department may reasonably require to determine if the credit counseling organization is complying with the provisions of this chapter and rules and regulations adopted in furtherance of the provisions of this chapter. The books, accounts, and records must be maintained apart and separate from another business in which the organization is involved and must be retained for at least three years after the DMP is terminated. (B) The records must contain all consumer information including, but not limited to, the debt management plan and extensions to it, payments, disbursements, charges, and correspondence. (C) If the credit counseling organization's records are located outside the State, it shall provide the records to the department within three business days or, at the department's discretion, pay reasonable and necessary expenses for the department to examine them at the place where they are maintained. § 37-7-115. Annual reports; occurrences triggering other reports. (A) Each credit counseling organization licensed pursuant to this chapter annually, on or before April fifteenth, shall file a written report with the department relating to the credit counseling organization business conducted during the preceding calendar year. The report shall be made under oath and shall be on a form prescribed by the department. (B) Within ten business days after the occurrence of any of the following events a licensee shall file a written report with the department describing the event and its expected impact upon the licensee's business: (2) the institution of a revocation, suspension, or other proceeding against the licensee by a governmental authority which is related to the licensee's credit counseling organization in any state; (C) A credit counselor licensed pursuant to this chapter shall file a report with the department within ten days of the occurrence of: (2) other events the department may prescribe by regulation. (D) Within thirty days of judgment against the licensee in a civil action relating to the DMP of a consumer who is a resident of South Carolina , a licensee shall file a written report with the department describing the event and its expected impact upon the licensee's business. The licensee shall advise the department within thirty days of any settlement or the result of any judgment entered. (E) If a licensee fails to make a report required by this section, the department may require the licensee to pay a late penalty of fifty dollars for each day the report is overdue. § 37-7-116. Prohibited acts. (A) A licensee may not: (2) charge a fee to a consumer if the consumer enters into a debt management plan with the licensee to rescind a DMP contract; (B) A violation of this section renders an agreement between the licensee and the consumer void. § 37-7-117. Violations and penalties; civil action by consumer; limitations. (A) A person who violates this chapter is guilty of a misdemeanor and, upon conviction, must be fined not more than five hundred dollars or imprisoned not more than six months, or both. If it is determined by a court of competent jurisdiction that a violation is wilful, the court may impose a fine of not less than five hundred fifty dollars for each violation. (B) A consumer injured or damaged by an act in violation of this chapter or regulation promulgated pursuant to it, whether or not there is a criminal conviction for the violation, may file a civil action to recover damages based on the violation with the following available remedies: (2) punitive damages; and (C) An action brought pursuant to this chapter must be commenced within three years from the latest of the: (2) credit counseling organization's last disbursement to the consumer's creditors; § 37-7-118. Violation of Unfair Trade Practices Act. A violation of a provision of this chapter is considered a violation of Section 39-5-20 of the South Carolina Unfair Trade Practices Act. A remedy pursuant to Section 39-5-20 of the South Carolina Unfair Trade Practices Act is cumulative of and in addition to those available pursuant to this chapter. § 37-7-119. Cease and desist orders; penalties for noncompliance; revocation of license; increase of bond. (A) Upon the finding that an action of a licensee may be in violation of this chapter, or of a law or regulation of this State or of the federal government or an agency of them, the department, after reasonable notice to the licensee and an opportunity for the licensee to be heard, shall order it to cease and desist from the action. (B) If the licensee fails to appeal the cease and desist order of the department in accordance with Section 37-7-120 and continues to engage in the action in violation of the department's order, he is subject to a penalty of not less than one thousand nor more than two thousand five hundred dollars, in the discretion of the department, for each action he takes in violation of the department's order. The penalty provision of this section is in addition to and not instead of other provisions of law applicable to a licensee for the licensee's failure to comply with an order of the department. (C) The department, upon the finding that a credit counseling organization has engaged intentionally or repeatedly in a course of conduct in violation of this chapter, may revoke the license temporarily or permanently, in its discretion, after reasonable notice to the organization and an opportunity for it to be heard and may increase a credit counseling organization's bond by a maximum of twenty-five thousand dollars to ensure that the public is protected adequately. The department also may impose upon persons violating the provisions of this chapter administrative fines of not more than five hundred dollars for each offense or not more than five thousand dollars for the same set of transactions or occurrences. Each violation constitutes a separate offense. The department, if it determines that the required bond must be increased, shall state in writing the reasons for the increase and immediately serve it upon the licensee. The credit counseling organization shall provide the new bond within thirty days or the department shall revoke the license of the credit counseling organization. § 37-7-120. Appeals. Within thirty days after the final decision of the department and by written notice to the department, an aggrieved party may appeal the decision pursuant to Article 3, Chapter 23 of Title 1, the Administrative Procedures Act. § 37-7-121. Regulations. The department may promulgate regulations necessary to effectuate the purposes of this chapter. § 37-7-122. Use of application and renewal fees. All application and renewal fees collected by the department may be retained by the department and used to implement the provision of this chapter.
Case Law I identified no significant cases construing the Act.
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