This webinar is brought to you by Community Law School (Sarnia-Lambton) Inc., a nonprofit, registered charitable organization devoted to public legal education and community advocacy training. This webinar is facilitated by Your Legal Rights, a website of legal information for community workers and advocates who work with low income and disadvantaged communities in Ontario. Your Legal Rights is a project of CLEO. Funding for this webinar was provided by the Law Foundation of Ontario as part of The Connecting Project and the Connecting Communities Consortium. www.communitylawschool.org www.yourlegalrights.ca www.lawfoundation.on.ca Community Law School (Sarnia-Lambton) Inc.
Hot Topics in Consumer Protection: Debt Settlement Services and Debt Settlement Agreements
Please note The content of this webinar is based on law that was current on the date the webinar was recorded. Your Legal Rights webinars contain general legal information. They are not intended to be used as legal advice for a specific legal problem. For more information on how to find a lawyer or to contact your local community legal clinic visit http://yourlegalrights.on.ca/find-services 2010, Community Law School (Sarnia- Lambton) Inc.
About our presenter Margaret Capes, B.A. (Hons.), LL.B., M.Ad.Ed, is Legal Education Coordinator of Community Law School (Sarnia- Lambton) Inc. She also acts as Review Counsel for Community Legal Services, as an adjunct professor in the clinical law program, and as faculty advisor for Pro Bono Students Canada and the Dispute Resolution Centre, all at the Faculty of Law, University of Western Ontario. She is the former Executive Director of Community Legal Assistance Sarnia.
Webinar Overview 1. What are Debt Settlement Services (DSS)? 2. Who is Exempt from the Collection and Debt Settlement Services Act? 3. For-Profit Debt Settlement Service Companies 4. Not-for-Profit Credit Counselling Agencies 5. Debt Service Companies: Prohibited Representations 6. DSS Agreements: Required Information About the Parties and the Term of the Agreement 7. DSS Agreements: The Creditor Repayment Plan 8. DSS Agreements: Contacting Your Creditors 9. DSS Agreements: How the Debt Service Agency Gets Paid 10. Debt Settlement Gone Wrong: Debtor Remedies
What Are Debt Settlement Services? Ontario s Collection and Debt Settlement Services Act (the Act) defines debt settlement services as: A collection agency that acts on behalf of a debtor to negotiate with creditors, or to receive money from the debtor to distribute to creditors for a fee, a commission, or some other payment made by the debtor to the collection agency. Under the Act, anyone (other than a collector*) who provides debt settlement services is classified as a collection agency. Note that this definition of collection agency is broader than what most people think of when they hear the term collection agency. The definition of collection agency when talking about debt settlement services under the Act includes both for-profit debt settlement companies, and not-for-profit (and charitable) credit counselling agencies. Not-for-profit credit counselling agencies that are also registered charities are generally subject to the Act s provisions but are not subject to the licensing requirements that apply to other types of debt settlement companies. * A collector is an individual who works for a collection agency.
Who Is Exempt From the Act? Certain parties are exempt from coverage under the Act even if they engage in collection or debt settlement services. Exempted parties include: lawyers, and their employees; an insurer or agent licensed under the Insurance Act or an insurance broker registered under the Registered Insurance Brokers Act, and their employees; persons licensed or acting under the Bankruptcy Act, the Corporations Act, the Business Corporations Act, the Courts of Justice Act or the Winding-up Act, or a person acting under the order of any court; a broker or salesperson registered under the Real Estate and Business Brokers Act, 2002, and their employees; banks and trust companies and their employees; an isolated collection made by a person whose usual business is not collecting debts for other persons; or a credit union and their employees acting in the regular course of their employment.
For-Profit Debt Settlement Service Companies Many debt settlement service companies are for-profit businesses that offer debt management planning. Some may also offer credit counselling services. These for-profit companies must be licensed by the province of Ontario under the Act. Although they must be licensed, the Act does not impose educational or ethical standards on these businesses or their employees. For-profit debt settlement service companies may also be acting as debt collectors for creditors at the same time they are offering debt settlement advice to debtors. Traditionally, these companies focus on paying one bill at a time: they will pick the bill that they think they can get paid most quickly or most easily; the debtor pays a set amount into the company every month to build up the pot ; the company accumulates the payments until they reach the amount that the creditor will agree to take to pay off the bill; the debtor then starts to replenish the pot until there are enough funds to pay off another creditor, and so on. In the past, many of these companies charged outrageous fees to debtors and failed to contact any creditors until they felt there was enough money to approach one creditor about a payoff, leaving the debtor struggling with collection agencies, telephone calls, and collection actions. It was abuses such as these that led Ontario to put the Collection and Debt Settlement Services Act in place.
Not-for-Profit Credit Counselling Agencies Credit counselling agencies are not-for-profit agencies that offer debt settlement services and financial counselling. Most Ontario credit counselling agencies are members of the Ontario Association of Credit Counselling Services (OACCS). The OACCS only accredits agencies and counsellors that meet their educational and training requirements and those who adhere to a strong code of ethics. Credit counselling agencies receive funding from United Ways, local governments, other organizations, from some creditors (such as credit card companies) who value the debt and counselling services offered to debtors, and from the modest fees that they charge for their services. Credit counsellors focus on putting together a payment plan that covers all of the debts and starts to repay all of them as quickly as the debtor can manage it: they try to negotiate with creditors for lower (or zero) interest rates, and reduced debt amounts; they contact all of the creditors to let them know that they are working with the debtor on a repayment plan; the debtor pays into the plan every month, and that money is used to start paying creditors back right away; once a plan is in place, the agency will deal with the creditors so that the debtor is not being harassed by them. These agencies also work with debtors to help them learn how to budget and to stay within a budget, how to make sound financial decisions, and generally how to build stronger money management skills.
Prohibited Representations The Act prohibits all debt settlement service companies and credit counselling agencies from making certain types of claims, such as: saying that they provide services on a charitable or not-for-profit basis if they do not; claiming that its programs or operations are approved by a provincial or the federal government if they are not approved by the government; promising results that are better than what they have actually gotten for other clients within the last year; and exaggerating their services, for example by promising that they can keep a creditor from trying to collect a debt or that using their services will stop legal action or wage garnishments. The Act also specifically prohibits debt settlement service companies and credit counselling agencies from making false, deceptive, or misleading statements in any of their advertising materials.
Debt Settlement Agreements: Required Basic Information Under the Act, all agreements for debt settlement services must include basic information such as: the name, address, and telephone number of the consumer and of the agency, and the agency's fax numbers, email address, website, and Ontario registration number; information about the sources of the agency s funding; the date of the agreement, and the proposed end date of the agreement, which may not be more than 18 months after the latest of: the date you enter into the agreement, the last day you make a payment under the agreement, or the last day that the agency settles a debt under the agreement; whether the agency will be paid by, or will try to get payment from, your creditors in exchange for entering into the agreement with you; an itemized list of all services that the agency will provide; and certain information required by the Act, such as specific informational documents from the Ontario government website. In addition, the agreement must be in writing, and must be delivered to the debtor when it is signed or otherwise entered into.
Debt Settlement Agreements: The Repayment Plan The Act requires that all debt settlement agreements contain certain information about the debts that are to covered under the agreement, and the way creditors will be treated. Information about all of the debts must be included in the agreement, including: each creditor s name; the total amount owed to each creditor; and the interest rate charged on each debt. The agreement must state the total amount that debtor owes to all creditors that are covered under the agreement. The agreement must explain how the agency will negotiate with your creditors: either by giving each creditor a proposed payment schedule that will pay the debt off over time through a series of payments, or by offering to settle each debt for a one-time payment at a reduced amount.
Debt Settlement Agreements: Contacting Creditors One of the biggest problems prior to the Act was that some debt settlement companies did not contact creditors in a timely manner, if at all. To address that, the Act mandates that the agency must: contact the creditors within 15 days after the agreement is entered into to and tell them that the agency has authority negotiate repayment of the debts; notify the debtor within that 15 days if a creditor refuses to negotiate a payment schedule or a one-time payment. In addition, a debt settlement company may not: enter into a debt settlement agreement with the debtor if it is apparent that: the debtor s creditors would not agree to settle the debt, or the debtor is not able to protect their interests because of disability, illiteracy, inability to understand the agreement, or similar factors. keep a debtor from accessing their credit report, or from communicating directly with their creditors.
Debt Settlement Agreements: How the Agency Gets Paid The Act has strict rules about how much a debt settlement agency may charge for its services. If the agency proposes to give creditors a payment schedule: it may charge a one-time fee of $50 per creditor for setting up the payment schedule for that creditor; after that it may not charge more than 15% of each payment that is made to the creditor under the schedule; for example, if your payment schedule calls for payments of $100/month to Sears for 10 months, the agency may not charge you more than $15 per payment, for each payment that is made to Sears. If the agency proposes to offer a one-time reduced payment to each of your creditors: it may not charge you more than 10% of each debt that it settles this way; for example, if you owe Sears $500 and the agency gets Sears to take $400 as full payment, the agency may not charge you more than $50 as its fee for the Sears debt (10% of the original amount of the bill). The agency may not require or accept payment or security for its services until after you have reached an agreement with the creditor and have made a payment to the creditor, except for the $50 fee mentioned above for creating a payment schedule.
Debtor Remedies: Cancellation Debtors may cancel a debt settlement services agreement, without penalty, at any time from the date of entering into it until 10 days after receiving a written copy of it (this is called a cooling-off period ). A debtor may also cancel the agreement within one year after entering into it if they do not receive a written copy of the agreement that meets all of the requirements of the Act that are discussed earlier in this webinar. This includes, for example: not including the basic required information; failing to follow the rules under the Act (and its Regulations) about what must be included in the repayment plan; violating the rules about how the agency gets paid, and how much it gets paid; and failing to contact creditors and the debtor as required under the Act and the Regulations. If the agreement or the agency does not comply with any of the these requirements, the debtor may cancel the agreement within one year. The debtor may give any type of cancellation notice, but written notice by any method that gives the debtor proof that notice was given is recommended. Cancellation operates to cancel the agreement as if it never existed. A debtor who cancels an agreement may demand a refund of all sums paid under the agreement by giving notice to the agency within one year of entering into the agreement. A demand for a refund must be made in writing. If the agency refuses to issue a refund, a consumer may complain to the Ministry of Consumer Services, or commence a civil action in the Superior Court of Justice. If the amount the debtor is seeking from the agency is less than $25,000, they may sue in Small Claims Court, which is designed to be user-friendly for persons without the service of a lawyer.
Debtor Remedies: Complaint to the Ministry A debtor who is having problems with a debt settlement services agreement or debt settlement agency may also report the problem to the Ministry of Consumer Services. Online complaint forms are available on the Ministry s website. The Ministry has broad investigative and remedial powers. The Ministry may order the seller to comply with the provisions of the Act. The Ministry may also bring charges in Provincial Offences Court. The Provincial Offences Court may, upon conviction, impose upon an individual a fine of up to $50,000, or imprisonment for a term of not more than two years less a day, or both. A corporation that is convicted may be fined up to $250,000.