Debt Settlement October 2010
Amendments to Telemarketing Sales Rule Prohibiting Debt Relief Companies From Collecting Advance Fees Will Take Effect in October 2010Starting on October 27, 2010, for-profit companies that sell debt relief services over the telephone may no longer charge a fee before they settle or reduce a customer's credit card or other unsecured debt. Three other Telemarketing Sales Rule provisions to take effect on September 27, 2010, will:* require debt relief companies to make specific disclosures to consumers; * prohibit them from making misrepresentations; an * extend the Telemarketing Sales Rule to cover calls consumers make to these firms in response to debt relief advertising. The Final Rule covers telemarketers of for-profit debt relief services, including credit counseling, debt settlement, and debt negotiation services. The Final Rule does not cover nonprofit firms, but does cover companies that falsely claim nonprofit status. Over the past decade, the FTC and state enforcers have brought a combined 259 cases to stop deceptive and abusive practices by debt relief providers that have targeted consumers in financial distress.Advance Fee BanThe Final Rule contains specific requirements for debt relief providers related to charging an advance fee before providing any services. It specifies that fees for debt relief services may not be collected until:* the debt relief service successfully renegotiates, settles, reduces, or otherwise changes the terms of at least one of the consumer's debts; * there is a written settlement agreement, debt management plan, or other agreement between the consumer and the creditor, and the consumer has agreed to it; and * the consumer has made at least one payment to the creditor as a result of the agreement negotiated by the debt relief provider. To ensure that debt relief providers do not front-load their fees if a consumer has enrolled multiple debts in one debt relief program, the Final Rule specifies how debt relief providers can collect their fee for each settled debt. First, the provider's fee for a single debt must be in proportion to the total fee that would be charged if all of the debts had been settled. Alternatively, if the provider bases its fee on the percentage of what the consumer saves as result of using its services, the percentage charged must be the same for each of the consumer's debts.Dedicated Account for Fees and SavingsAnother new provision of the Final Rule will allow debt relief companies to require that consumers set aside their fees and savings for payment to creditors in a "dedicated account." However, providers may only require a dedicated account as long as five conditions are met:* the dedicated account is maintained at an insured financial institution; * the consumer owns the funds (including any interest accrued); * the consumer can withdraw the funds at any time without penalty; * the provider does not own or control or have any affiliation with the company administering the account; and * the provider does not exchange any referral fees with the company administering the account. Disclosures and Prohibited MisrepresentationsUnder the Final Rule, providers will have to make several disclosures when telemarketing their services to consumers. Before the consumer signs up for any debt relief service, providers must disclose fundamental aspects of their services, including how long it will take for consumers to see results, how much it will cost, the negative consequences that could result from using debt relief services, and key information about dedicated accounts if they choose to require them. The Final Rule also prohibits misrepresentations about any debt relief service, including success rates and whether the provider is a nonprofit entity. The FTC's Statement of Basis and Purpose, which accompanies the Final Rule, provides extensive guidance about the evidence providers must have to make advertising claims commonly used in selling debt relief services.Information for BusinessesThe FTC staff issued a compliance guide to help businesses comply with the new debt relief rules. The compliance guide describes the key changes to the Telemarketing Sales Rule affecting debt relief services, helps businesses determine if they are covered by the new rules, details information that covered entities must disclose to customers, and discusses how fees may now be collected. It can be found at http://www.ftc.gov/bcp/edu/pubs/business/marketing/bus72.pdf on the agency's website and is linked to this press release.The notice will be published in the Federal Register shortly, and is available now on the FTC's website at http://www.ftc.gov/os/2010/07/R411001finalrule.pdf. The provisions of the Final Rule will take effect on September 27, with the exception of the advance fee ban provision, which will take effect on October 27.