STATE OF FLORIDA, OFFICE OF THB ATTORNEY GENERAL DEPAR'l'MENT OF LEGAL AFFAIRS ASSURANCE OF VOLUNTARY COMPLIANCE

Transcription

1 STATE OF FLORIDA, OFFICE OF THB ATTORNEY GENERAL DEPAR'l'MENT OF LEGAL AFFAIRS In the Investigation of: Case # L09-3-ll90 ALLIED INTERSTATE INC. Respondent. ASSURANCE OF VOLUNTARY COMPLIANCE PURSUANT to the provisions of FLA. STAT. Ch. 501, Part II, Florida's Deceptive and Unfair Trade Practices Act, and FLA. STAT. Ch. 501, STATE OF FLORIDA, OFFICE OF THE ATTORNEY GENERAL, OEPAR'l'MENT OF LEGAL AFFAIRS (hereinafter "Department"), has investigated the business practices of ALLIED INTERSTATE and their related companies (hereinafter, "Respondent") with its principal place of business located at 3000 Corporate Exchange Drive Columbus, Ohio Respondent is prepared to enter into this Assurance of Voluntary Compliance (hereinafter "AVC") for the purpose of resolution of this matter only, and without any admission that Respondent has violated the law, and the Attorney General, by and through its undersigned Assistant Attorney General, and Director of Economic Crimes, being in agreement, does accept 1 INITIALS===~='.)L_===:_ --- ~~~~~~--~~

2 this AVC in termination of this investigation, pursuant to FLA. STAT (6), and by virtue of the authority vested in the Attorney General by said statute. I. DEFINITIONS For purposes of this AVC, "reasonable investigation" shall mean an investigation in which Allied objectively evaluates and weighs the relevant information and circumstances, including but not limited to, the reliability and credibility of the information's source, the accuracy and completeness of the information it has obtained from third parties, and the methods used to collect the debt information. II. STIPULATIONS IT IS AGREED that this AVC does not constitute an admission of any kind and, specifically, Respondent denies any and all allegations of wrongdoing. This AVC does not constitute a finding of law or fact by any court or agency that Respondent has engaged in any act or practice declared unlawful by any laws, rules or regulations of the State of Florida, and neither party shall make any statement to the contrary. Respondent is prepared to enter into this AVC solely for the purpose of resolution and cooperation, and the parties, being in agreement, do accept this AVC by virtue of the authority vested in the Department by said statute ~--~ ----~ INITIALS..&

3 The Department and Respondent hereby agree and stipulate to the following: 2.1 Respondents and/or their related companies engages in debt collection from thousands of consumers both in Florida and around the country. 2.2 Beginning in October 2009, the Department became aware of several complaints from consumers who alleged, among other complaints, that they were contacted about a debt in error, that they were harassed and threatened over the phone, that they were repeatedly contacted after informing Respondent that the debt was not theirs, and that Respondent threatened to sue and/or ruin consumers' credit when the debt was not theirs The Department's investigation focused primarily, inter alia, on whether Respondent engaged in violations of 15 U.S.C.A 1692 (Fair Debt Collections Practices Act, FDCPA), Florida Statutes Sections (Florida Consumer Collection Practices Act, FCCPA), and Florida Statutes Sections {Florida Deceptive and Unfair Trade Practices Act, FDUTPA). 2.4 Respondent makes no admission that it engaged in any wrongdoing or committed any violation of Florida Statute 501, Part II. This AVC contains neither findings of fact nor conclusions of law. 3 INITIALS~

4 III. COMPLIANCE 3.1 The Department has not approved any of Respondent's past, current or proposed business practices, and therefore no portion of this AVC shall be construed as such an approval. 3.2 The parties agree that Respondent is on notice and shall comply with FLA. STAT. Ch. 501, Part II, Florida's Deceptive and Unfair Trade Practices Act. 3.3 Respondent and its representatives, agents, employees, lor any other person who acts under, by, through, or on behalf of \Respondent, directly or indirectly, or through any corporate or I \other device, shall comply with and have actual knowledge of khapter 501, Part II, Florida Statutes, the Florida Deceptive I and Unfair Trade Practices Act. \ 3.4 IT IS HEREBY AGREED by the parties: I. Respondent shall be permanently restrained and enjoined from the following: a) Making any material misrepresentation, expressly or by implication, to collect or to attempt to collect a debt or obtain information concerning a consumer. b) Making any material misrepresentation, expressly or by implication, that a consumer owes a debt or as to the amount of a debt, unless, at the time I \_ INITIALS~/U=.= ~---J I

5 of making the representation, Allied has a reasonable basis for making such representation, and, if and to the extent Allied is required to conduct a reasonable investigation under the terms of this AVC, Allied has done so and has reasonably concluded that the information on which Allied relies to collect or to attempt to collect the debt is accurate and complete c) Communicating more than once with persons other than the consumer in violation of 804(3) of the FDCPA, 15 u.s.c 1692b(3) for the purpose of obtaining location information about the consumer without the person's consent or a reasonable belief that the earlier response of the person was erroneous or incomplete and that the person now has correct or complete location information. d) Engaging in conduct which is meant to harass, oppress, or abuse, including but not limited to: i. using obscene, profane or abusive language; or ii. causing a telephone to ring, or engaging a person in telephone conversation, repeatedly 5!NITIALS_M_

6 or continuously to annoy, abuse or harass the person at the called number. e) Using false, deceptive or misleading representations or means in connection with the collection of a debt, including, but not limited to, representing or implying that 1) any action will be taken, unless at the time of the representation, such action is lawful and Respondent or the creditor intends to actually take such action; or 2) that any action may be taken when Respondent cannot show that, at the time of the representation, there is a reasonable likelihood that such action will be taken. f) Selling the debt or providing it to any other corporate entity, other than the client from which Respondent obtained the debt, if Respondent is unable to substantiate that the consumer owes the debt and/or Respondent has decided to permanently terminate collection efforts. g) Engage in any other act or practice that would violate 15 U.S.C.A 1692 (Fair Debt Collections Practices Act, FDCPA), Florida Statutes Section (Florida Consumer Collection Practices 6 INITIALSA_

7 Act, FCCPA), and Florida Statutes Section (Florida Deceptive and Unfair Trade Practices Act, FDUTPA). II. Upon the execution of this AVC, Respondent shall: a) Have a duty to conduct a reasonable investigation in the following circumstances: i. When a consumer, at any time, questions, disputes, or challenges the accuracy or completeness of the information on which Respondent is relying to make any representation that the consumer owes a debt or as to the amount of the debt; OR ii. When the information on which Respondent is relying to make any representation regarding either the existence of or the amount of a debt is implausible, facially unreliable, or missing essential information, as determined from the perspective of a consumer acting reasonably. 7

8 b) Provide responsive information or pose reasonable question(s) to the consumer, in a manner that complies with applicable law, in an effort to resolve disputes raised by the consumer. c) Make no further attempt to collect the debt or report it to a consumer reporting agency, after the consumer disputes, challenges or questions the debt, unless and until Respondent has completed a reasonable investigation and has reasonably concluded that the debt information is accurate and complete. III. Respondent shall provide the Department with information regarding its resolution of complaints previously forwarded to Respondent. Respondent has represented that it has resolved all previous consumer complaints received from the Department dealing with the allegations in this AVC. As part of this AVC, Respondent shall provide a notarized affidavit and spreadsheet along with this AVC on behalf of Respondent, containing proof that Respondent has resolved all 8

9 the complaints received from the Department since 2007, which will be attached to this AVC as Exhibit A. IV. MONETARY TERMS 4.1 Respondent agrees to pay a total of NINETY-FOUR THOUSAND DOLLARS ($94,000.00) in attorneys' fees, investigative fees and costs of future investigation ("Fundsn). 4.2 The Funds shall be due and payable in their entirety upon execution of this AVC by Respondent, and delivered along with the partially executed AVC signed and notarized by Respondents and signed by Respondents' attorney to Assistant Attorney General Samantha Schosberg Feuer, Office of the Attorney General, 1515 North Flagler Drive, Suite 900, West Palm Beach, Florida The Funds will be paid by certified funds payable to the DEPARTMBNT OF LEGAL AFFAIRS REVOLVING TRUST FUND. 4.3 In addition, Respondent is directed to pay to the Department simultaneous with execution of this AVC by Respondents the sum of FIVE THOUSAND DOLLARS ($5,000.00) ("Escrow Funds") to satisfy future consumer restitution for a period of sixty (60) days from the date of execution of this AVC. In the event actual restitution for future complainants exceeds the amount of the Escrow Funds, then the Escrow Funds will be distributed pro-rata to the complainants who have 9 INITIALS hl

10 submitted complaints to the Department within the sixty (60) day period. However, no individual consumer will receive more than the amount of damages actually sustained. Upon the conclusion of this sixty day period of time, any remaining monies shall revert back to the Department of Legal Affairs Revolving Trust Fund. 4.4 The Escrow Funds amount above shall be made by certified or cashier's checks, payable to the Department of Legal Affairs Escrow Fund, and shall be sent to: Samantha Schosberg Feuer, Assistant Attorney General, Office of the Attorney General, 1515 North Flagler Drive, gtn Floor, West Palm Beach, Florida Upon receipt, the check shall be deposited into the Department of Legal Affairs Escrow Fund, accordance with Section (1), Florida Statute (2009). in If any restitution monies remain after the distribution of restitution the Attorney General's office will deposit the remaining monies into the "Department of Legal. Affairs Revolvinq Trust Fund" and shall be used to defray the cost of restitution distribution and any attorneys' fees and costs incurred in enforcing this Judgment, or as fee and costs associated with ongoing and future enforcements initiatives pursuant to Chapter 501, Part II, Florida Statutes. 10 INITIALS fil

11 4.5 After the sixty (60) day time period is complete, Respondent is entitled to request a list of those indi victuals who were sent funds in conjunction with this investigation 4.6 Complaints that the Department receives regarding Respondent's after the above sixty (60) day period and after the Escrow Funds are distributed will be sent directly to Respondent's "VP, Compliance." These complaints sent by the Department will be answered by Respondent within seventy-two (72) business hours of receipt and the resolution of each of these complaints shall be communicated to the Department, in writing. personnel Respondent will maintain adequate customer service to examine, address and resolve all consumer complaints. Complainants may telephone Respondent at between 9:00 a.m. and 5:00 pm Central Time, Monday through Friday to lodge any and all complaints or to speak to a customer service representative. 4.7 Upon receipt of the partially executed AVC and accompanying checks, Samantha Schosberg Feuer will sign the AVC and then forward the AVC to the Division Director, together with the aforementioned funds. The Division Director has the final authority to approve or disapprove the entry of the AVC. Should the Division Director or his authorized designee decline to authorize and execute this AVC, then any monies paid by 11 INITIALS~

12 Respondent under this AVC would be promptly returned to Respondent. 4.8 Respondent's interest in funds paid in conjunction with this AVC shall fully and completely divest when the AVC is fully executed by all parties. Notwithstanding any other provision of this AVC, no portion of the Funds or Escrow Funds shall in any event be returned to Respondent provided that the AVC has been fully executed. 4.9 Upon receipt of the partially executed AVC and accompanying Funds and Escrow Funds checks, Samantha Schosberg Feuer will sign the AVC and then forward the AVC to the Director of Economic Crimes, together with the aforementioned funds. The Director of Economic Crimes has the final authority to approve or disapprove the entry of the AVC. Should the Director of Economic Crimes or his authorized designee decline to authorize and execute this AVC, then all monies received under this AVC would be promptly returned to Respondent. V. EFFECTIVE DATE The Effective Date of this AVC is the date on which the AVC is fully executed by the parties. This will be the date that the AVC is signed by the Deputy Attorney General or Division Director. The receipt of or deposit by the Department of any monies pursuant to this AVC does not constitute acceptance by 12 INITIALS /ij,

13 said Department, and monies received will be returned if this AVC is not accepted. Upon entry and full execution of this AVC and upon full payment of the Funds and Escrow Funds, the Attorney General agrees to close this investigation into the above-described activities of Respondent and Respondent shall be released from liability arising from or relating to solely the allegations referenced in this AVC on or before the effective date of this AVC. VI. AVAILABILITY OF RECORDS Respondent shall retain for a minimum of two (2) years and maintain and make available to the Department, upon its written request, all books, records website archives and other documents which reflect the implementation of the terms of this AVC and compliance with its terms. Any such records requested by the Department shall be made available for inspection within twenty (20) business days after receipt of such request. Respondent shall honor any request from the Department to make such records available without further legal process. VII. FUTURE VIOLATIONS 7.1 Notwithstanding any other provision of this AVC, the parties further recognize that violations of this AVC or violations of FLA. STAT. Ch. 501, Part II, on or after the date of the execution of this AVC may subject Respondent or its 13 INITIALS~

14 officers, directors and employees to any and all civil penalties and sanctions provided by law. 7.2 The Department shall provide written notice to Respondent if the Department becomes aware of circumstances which could result in a determination by the Department that Respondent is in violation of its obligations under this AVC. 7.3 IT IS FURTHER AGREED by the parties that any violations of this AVC that occur are by statute prima f acie evidence of a violation of FLA. STAT. Ch. 501, Part II, and will subject Respondent to any and all civil penalties and sanctions provided by law, attorneys' fees and costs. Notwithstanding anything to the contrary, Respondent will have the right to challenge the facts underlying any such alleged violation of the AVC and to present evidence in rebuttal of the Department's prima facie case in a court of law. 7.4 IT IS HEREBY AGREED by the parties that Respondent shall be responsible for making the substantive terms and conditions of this AVC known to the officers, directors, partners, employees, agents, representatives, licensees, franchisees, independent contractors, successors and assigns, engaged in Respondent's business, projects, and activities that are related to the terms and conditions of this AVC. VIII. MISCELLANEOUS PROVISIONS 14 INITIALS /1l_

15 8.1 Nothing herein shall be construed as a waiver of any private rights, causes of action, or remedies of any private person, business, corporation, government or legal entity against the Respondent's directors or employees. Similarly, nothing contained herein shall waive the right of the Respondent to assert any lawful defenses in response to a claim of a consumer. 8.2 In consideration for the fulfillment and acceptance of the various obligations set forth herein, no penalties are imposed under this AVC. However, the Department reserves the right to seek Chapter 501 penalties for any future violation(s) of Chapter 501 Part II Florida Statutes. The Attorney General also reserves the right to seek attorneys' fees and costs upon any noncompliance with this AVC. 8.3 The parties jointly participated in the negotiation of the terms articulated in this AVC. No provision of this AVC shall be construed for or against either party on the ground that one party or another was more heavily involved in the preparation. IN WITNESS WHEREOF, Respondent has caused this AVC to be executed by an authorized representative, as a true act and deed, in the County and State listed below, as of the date affixed thereon. 15

16 Agreed to and Signed this day of _111~~~ MY SIGNATURE I hereby affirm that I am acting in my capacity and within my authority as Vice President and in my individual capacity, and that by my signature I am binding myself and the Respondent to the terms and conditions of this AVC. State of STATE OF ~~-"-"-'-"---'-"Th~f=K~~~- COUNTY 0 F """'~,.,.,..i.=--."1... 0f;.~K BEFORE ME, a notary public of the State of rlf'w jor..k appeared G e'.?ior:'1 t. +-\1\&t!\~ who swore under he has the authority to bind Respondents to this AVC either (Check One) known to me or who i/" the following identification: oath that and who is produced WELMY A VALERIO Notary Publle Stat of New York NO. 01VA Quollflect In Bronx Co ty ~ ~ Comm..,.nlllp J By: ~- GREGORY E.H RMER Attorney for Respondents 16 INITIALS~

17 ACCEPTANCE BY ATTORNEY GENERAL'S OFFICE Signed this ld_ctay of 4-}1._._fr..._j~----' r~ Assistant rney General Florida Bar North Flagler Drive, Suite 900 West Palm Beach, Florida, (FAX)~. I d Accepte t is ON ECTOR, ECON IC CRIMES FFICE OF THE ATTORNEY GENERAL The Capitol, PL 01 Tallahassee, FL (850) INITIALS /jl_