To amend section 4710.01 and to enact sections 4710.20 to 4710.43 of the Revised Code to require the licensure of, and otherwise regulate, providers of debt settlement services.

Section 1. That section 4710.01 be amended and sections 4710.20, 4710.21, 4710.22, 4710.23, 4710.24, 4710.25, 4710.26, 4710.27, 4710.28, 4710.29, 4710.30, 4710.31, 4710.32, 4710.33, 4710.34, 4710.35, 4710.36, 4710.37, 4710.38, 4710.39, 4710.40, 4710.41, 4710.42, and 4710.43 of the Revised Code be enacted to read as follows:

Sec. 4710.01.  As used in this chapter:

(A) "Person" includes individuals, partnerships, associations, corporations, trusts, and other legal entities.

(B)(1) "Debt adjusting" means doing business in debt adjusting, budget counseling, debt management, or debt pooling service, or holding oneself out, by words of similar import, as providing services to debtors in the management of their debts, to do either of the following:

(1)(a) To effect the adjustment, compromise, or discharge of any account, note, or other indebtedness of the debtor;

(2)(b) To receive from the debtor and disburse to the debtor's creditors any money or other thing of value.

(2) "Debt adjusting" does not include debt settlement services as defined in section 4710.20 of the Revised Code.

(C) "Resides" means to live in a particular place on a temporary or a permanent basis.

Sec. 4710.20.  As used in sections 4710.20 to 4710.43 of the Revised Code:

(A) "Affiliate" means a person that controls, is controlled by, or is under common control with the licensee.

(B) "Agreement" means an agreement between a licensee and an individual for the provision of debt settlement services.

(C) "Business address" means the physical location of a business, including the name and number of a street.

(D) "Concessions" means assent to repayment of a debt on terms more favorable to an individual than the terms of the contract between the individual and a creditor.

(E) "Day" means a calendar day.

(F) "Debt settlement services" means the services as an intermediary between an individual and one or more unsecured creditors of the individual for the purpose of obtaining concessions under which a creditor accepts less than the balance owed as payment in full of the debt, and without receiving money from the individual for distribution of that money to the individual's creditor. The term does not include any of the following:

(1) Legal services provided in an attorney-client relationship by an attorney licensed or otherwise authorized to practice law in this state;

(2) Accounting services provided in an accountant–client relationship by a certified public accountant licensed to provide accounting services in this state;

(3) Financial planning services provided in a financial planner-client relationship by a member of a financial planning profession who holds current certification by the certified financial planner board of standards, inc.

(G) "Financial institution" means any national bank, any bank doing business under authority granted by the superintendent of financial institutions or the regulatory authority of another state of the United States, any federal savings association, any savings and loan association or savings bank doing business under authority granted by the superintendent or the regulatory authority of another state of the United States, or any credit union regulated by a state or federal regulatory authority.

(H) "Good faith" means honesty in fact and the observance of reasonable standards of fair dealing.

(I) "Licensee" means a person that has been issued a license to provide debt settlement services under sections 4710.20 to 4710.43 of the Revised Code.

(J) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, or any other legal or commercial entity. The term does not include a public corporation, government, or governmental subdivision, agency, or instrumentality.

(K) "Program" means a program or strategy in which a provider furnishes debt settlement services in contemplation that creditors will settle debts for less than the full amount of debt owed by an individual.

(L) "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in a perceivable form.

(M) "Sign" means, with present intent to authenticate or adopt a record, to do either of the following:

(1) Execute or adopt a tangible symbol;

(2) Attach to or logically associate with the record an electronic sound, symbol, or process.

(N) "State" means, except when the context indicates the term is referring to the state of Ohio, a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

(O) "Settlement" means an arrangement under which a creditor accepts concessions on an individual's account through a debt settlement services program and money is paid to the creditor.

Sec. 4710.21.  (A) No person shall provide debt settlement services for compensation without first having obtained a license from the director of commerce under sections 4710.20 to 4710.43 of the Revised Code.

(B) Sections 4710.20 to 4710.43 of the Revised Code do not apply to the following persons or their employees when the person or the employee is engaged in the regular course of the person's business or profession:

(1) A judicial officer, a person acting under an order of a court or an administrative agency, or an assignee for the benefit of creditors;

(2) A financial institution, bank holding company, or the subsidiary, agent, or affiliate of either;

(3) A title insurer, escrow company, or other person that provides bill-paying services if the provision of debt settlement services is incidental to the bill-paying services;

(4) An agent or employee of a licensee.

Sec. 4710.22.  (A) Application for an original or renewal license to provide debt settlement services shall be in writing, signed under oath, and in the form prescribed by the director of commerce. The application form shall contain a statement informing the applicant that a false or dishonest answer to a question may be grounds for denial or subsequent suspension or revocation of the applicant's license. The application for an original or renewal license shall be accompanied by a license fee as determined by the director by rule, and shall contain all of the following:

(1) The applicant's name, principal business address and telephone number, and all of the applicant's other business addresses in this state, electronic mail addresses, and internet web site addresses;

(2) All names under which the applicant conducts business;

(3) The address of each location in this state at which the applicant will provide debt settlement services or a statement that the applicant does not maintain a physical location in the state;

(4) The name and home address of each officer and director of the applicant and each person that owns at least ten per cent of the applicant's business;

(5) A statement describing, to the extent it is known or should be known by the applicant, any material civil or criminal judgment relating to financial fraud or misuse, any material violation of state or federal securities laws, and any material administrative or enforcement action relating to financial fraud or misuse by a governmental agency in any jurisdiction against the applicant, any of its officers, directors, owners, or agents;

(6) A copy of each form of agreement that the applicant will use with individuals who reside in this state;

(7) The schedule of fees and charges that the applicant will use with individuals who reside in this state;

(8) A copy or description of any ownership interest of at least ten per cent by a director, owner, or employee of the applicant in the applicant's debt settlement services business;

(9) A description of any ownership interest of at least ten per cent by a director, owner, or employee of the applicant in:

(a) Any affiliate of the applicant; or

(b) Any entity that provides products or services to the applicant or any individual relating to the applicant's debt settlement services business.

(10) The identity of each director who is an affiliate of the applicant;

(11) Evidence that the applicant has a resident agent in the state recorded with the secretary of state;

(12) Any other information that the director reasonably requires to perform the director's duties, which the director may require by rule.

(B) The director may, upon receipt and review of an application, request additional information that the director reasonably requires to perform the director's duties.

(C) The term of any license issued pursuant to sections 4710.20 to 4710.43 of the Revised Code shall not be more than two years. Licensees who wish to renew their license must submit an application for renewal at least thirty days, but not more than sixty days, before the license expiration date.

(D) If a person who provides debt settlement services holds a license or certificate of registration in another state authorizing it to provide debt settlement services, the person may submit a copy of that license or certificate and the application for it instead of the application described in division (A) of this section if all of the following apply:

(1) The application in the other state contains information substantially similar to or more comprehensive than that required by division (A) of this section.

(2) The applicant provides the information required by divisions (A)(1), (3), (6), and (7) of this section.

(3) The applicant certifies that the information contained in the application is current, and to the extent it is not current, supplements the application to make the information current.

Sec. 4710.23.  (A) The director of commerce shall issue an original or renewal license to the applicant unless the director finds any of the following:

(1) The applicant has not complied with the requirements of section 4710.22 of the Revised Code.

(2) The application contains information that is materially erroneous or incomplete.

(3) An officer, director, or owner of the applicant has been convicted of a crime, or suffered a civil judgment, involving dishonesty or the violation of state or federal securities laws.

(4) The application is not accompanied by the fee established by the director.

(5) There is reasonable evidence to support the director's opinion that the applicant will not provide debt settlement services in a lawful, honest, and fair manner.

(B) The director shall approve or deny an initial license within sixty days after an application is filed. If a request for additional information is made pursuant to division (B) of section 4710.22 of the Revised Code, the director may extend the sixty-day period for not more than forty-five days.

(C) If a licensee has filed a timely and complete application for license renewal, the license remains in effect until the director notifies the applicant of a denial.

(D) Within seven days after issuing an order denying an application, the director shall notify the applicant of the denial, the grounds for the denial, and the applicant's opportunity for a hearing pursuant to Chapter 119. of the Revised Code. If the application is denied, the director shall return the license fee.

(E) If the director has denied an application for a renewal license, the licensee, within thirty days after receiving notice of the denial, may appeal and request a hearing in accordance with Chapter 119. of the Revised Code. While an appeal is pending, the licensee may continue to provide debt settlement services to individuals with whom the licensee has agreements. If the licensee's appeal fails, the licensee may, with the approval of the director, continue to provide debt settlement services to individuals with whom it has agreements until the licensee transfers the agreements to another licensee. The director may establish a date by which all transfers must occur and may modify the date at any time.

Sec. 4710.24.  No person licensed under sections 4710.20 to 4710.43 of the Revised Code shall conduct business in this state unless the licensee has obtained and maintains in effect at all times a corporate surety bond issued by a bonding company or insurance company authorized to do business in this state. The bond shall be in favor of the director of commerce and in a penal sum the director determines is warranted by the financial condition and business experience of the licensee, the history of the licensee in providing debt settlement services, the risk to individuals, and any other factor the director considers appropriate. The penal sum shall be at least ten thousand dollars and not more than fifty thousand dollars.

The term of the bond shall coincide with the term of the license. The licensee shall file a copy of the bond with the director. The bond shall be for the exclusive benefit of any individual injured by a violation of or failure to comply with any provision of sections 4710.20 to 4710.43 of the Revised Code by a licensee or an employee of a licensee.

Sec. 4710.25.  A licensee shall do all of the following:

(A) Act in good faith when engaging in the business of debt settlement services;

(B) Maintain a toll-free communication system, staffed at a level that reasonably permits an individual to speak to a customer service representative, as appropriate, during ordinary business hours;

(C) Provide all disclosures and documents required by sections 4710.20 to 4710.43 of the Revised Code in English and in any other language the licensee has or will use primarily to communicate with the individual.

(D) List on all written, recorded, or electronic advertisements targeted at customers in this state that the licensee is licensed by the department of commerce and maintains a surety bond as required by this chapter.

Sec. 4710.26.  (A) Before providing debt settlement services, a licensee shall give the individual an itemized list of goods and services and the charges for each. The information shall be presented in a clear and conspicuous manner.

(B) A licensee shall not provide debt settlement services unless the licensee has prepared a financial analysis with respect to the income and debts of the individual seeking the services.

(C) Before an individual assents to an agreement to engage in a program, a licensee shall do both of the following:

(1) Provide the individual with a copy of the financial analysis required by division (B) of this section in a record that identifies the licensee and that the individual may keep whether or not the individual assents to the agreement;

(2) Inform the individual of the availability, at the individual's option, of assistance by a toll-free communication system or in person to discuss the financial analysis required by division (B) of this section.

(D) Before an individual assents to an agreement to engage in a program, the licensee shall inform the individual of all of the following in writing:

(1) Programs are not suitable for all individuals.

(2) Participation in a program may adversely affect the individual's credit rating or credit scores.

(3) Nonpayment of debt may lead creditors to increase finance and other charges or undertake collection activity, including litigation.

(4) If a creditor settles for less than the full amount of the debt, the program may result in the creation of taxable income to the individual, even if the individual does not receive any money.

(5) Specific results cannot be predicted or guaranteed and the licensee cannot force negotiations or settlements with creditors but will advocate solely on behalf of the individual.

(6) Programs require that individuals meet a certain savings goal in order to maximize settlement results.

(7) The licensee does not provide accounting or legal advice to individuals, unless the licensee is professionally licensed to provide such advice.

(8) The licensee does not make payments to the individual's creditors.

(9) The name and business address of the licensee.

Sec. 4710.27.  (A) As used in this section:

(1) "Federal act" means the "Electronic Signatures in Global and National Commerce Act," 114 Stat. 464, 15 U.S.C. 7001 et seq., as amended.

(2) "Consumer" means an individual who seeks or obtains goods or services that are used primarily for personal, family, or household purposes.

(B) A licensee may satisfy the requirements of sections 4710.26, 4710.28, and 4710.33 of the Revised Code by utilizing the internet or other electronic means if the licensee obtains a consumer's consent in the manner provided for in the federal act.

(C) The disclosures and materials required by sections 4710.26, 4710.28, and 4710.33 of the Revised Code shall be presented in a form that is capable of being accurately reproduced for later reference.

(D) With respect to disclosure by means of an internet web site, the disclosure of the information required by division (D) of section 4710.26 of the Revised Code must appear on one or more screens that contain no other information, and the individual must indicate that the individual has seen the information before proceeding to assent to the formation of a program.

(E) At the time of providing the materials and agreement required by divisions (C) and (D) of section 4710.26 and sections 4710.28 and 4710.33 of the Revised Code, a licensee shall inform the individual that upon electronic, telephonic, or written request, it will send the individual a written copy of the materials and will comply with a request as provided in division (F) of this section.

(F) If a licensee is requested, before the expiration of ninety days after a program is completed or terminated, to send a written copy of the materials required by divisions (C) and (D) of section 4710.26 and sections 4710.28 and 4710.33 of the Revised Code, the licensee shall send them at no charge within three business days after the request is made, but the licensee need not comply with a request more than once per calendar month or if it reasonably believes the request is made for purposes of harassment. If a request is made more than ninety days after a program is completed or terminated, the licensee shall send within a reasonable time a written copy of the materials requested.

(G) A licensee that maintains an internet web site shall disclose on the home page of its web site or on a page that is clearly and conspicuously connected to the home page by a link that clearly reveals its contents, all of the following:

(1) Its name and all names under which it does business;

(2) Its principal business address, telephone number, and electronic mail address, if any.

(H) Subject to division (I) of this section, if a consumer who has consented to electronic communication in the manner provided by section 101 of the federal act withdraws consent as provided in the federal act, a licensee may terminate its agreement with the consumer.

(I) If a licensee wishes to terminate an agreement with a consumer pursuant to division (H) of this section, it shall notify the consumer that it will terminate the agreement unless the consumer, within thirty days after receiving the notification, consents to electronic communication in the manner provided in section 101(c) of the federal act.

(J) This section modifies, limits, and supersedes the federal act, but does not modify, limit, or supersede section 101(c) of that act or authorize electronic delivery of any of the notices described in section 103(b) of that act.

Sec. 4710.28.  (A) An agreement shall meet the following requirements:

(1) Be in a record;

(2) Be dated and signed by the individual;

(3) Include the name of the individual and the address where the individual resides;

(4) Include the name, business address, and telephone number of the licensee;

(5) Be delivered to the individual immediately upon formation of the agreement;

(6) Disclose all of the following:

(a) The services to be provided;

(b) The amount or method of determining the amount of all fees, individually itemized, to be paid by the individual;

(c) How the licensee will comply with its obligations under section 4710.33 of the Revised Code;

(d) That the individual may contact the director of commerce with any questions or complaints regarding the licensee;

(e) The address, telephone number, and internet address or web site of the director.

(B) For purposes of division (A)(5) of this section, delivery of an electronic record occurs when it is made available in a format in which the individual may retrieve, save, and print the record, and the individual is notified that it is available.

(C) If the director supplies the licensee with any information required under division (A)(6)(e) of this section, the licensee may comply with that requirement only by disclosing the information supplied by the director.

(D) An agreement shall provide that the individual has a right to terminate the agreement at any time by giving the licensee written or electronic notice, in which event all powers of attorney granted by the individual to the licensee are revoked and ineffective.

(E) An agreement may not do any of the following:

(1) Provide for application of the law of any jurisdiction other than the United States and this state;

(2) Except as permitted by Section 2 of the "Federal Arbitration Act," 61 Stat. 669, 9 U.S.C. 1, et seq., as amended, contain a provision that modifies or limits otherwise available forums or procedural rights, including the right to trial by jury, that are generally available to the individual under law;

(3) Contain a provision that restricts the individual's remedies under sections 4710.20 to 4710.43 of the Revised Code, or other law;

(4) Contain a provision that does the following:

(a) Limits or releases the liability of any person for not performing the agreement or for violating any provision of sections 4710.20 to 4710.43 of the Revised Code;

(b) Indemnifies any person for liability arising under the agreement or under sections 4710.20 to 4710.43 of the Revised Code.

Sec. 4710.29.  (A) A licensee shall not impose, directly or indirectly, a fee or other charge on an individual or receive money from or on behalf of an individual for debt settlement services, except as permitted by this section.

(B) A licensee shall not impose fees or other charges or receive payment for debt settlement services unless both of the following conditions are met:

(1) The licensee and the individual have signed an agreement that substantially complies with sections 4710.28 and 4710.32 of the Revised Code.

(2) A settlement has been executed in the form required under division (C) of section 4710.33 of the Revised Code and at least one payment has been made by the individual pursuant to that settlement.

(C) The total amount of fees or other charges for debt settlement services shall be reasonable. A fee or other charge shall:

(1) Bear the same proportional relationship to the total fees or other charges for renegotiating, settling, reducing, or altering the terms of the entire debt balance as the individual debt amount bears to the entire debt balance at the time the licensee and the individual signed the agreement; or

(2) Represent a percentage of the difference between the debt owed the creditor and the amount the creditor has agreed to accept as payment in full of the debt. If the fee or other charge for an individual debt is determined in this manner, the same percentage shall be used for all of the other individual debts.

(D) A licensee may impose a reasonable charge to the individual, plus any amount passed on from a financial institution for each check, negotiable order of withdrawal, share draft, or other negotiable instrument returned or dishonored for any reason, provided that the terms and conditions upon which such insufficient funds charges will be charged to the individual are set forth in the agreement.

(E) A licensee shall not solicit or accept a voluntary contribution from an individual or on behalf of an individual.

Sec. 4710.30.  (A) If a licensee imposes a fee or other charge or receives money or other payments not authorized by section 4710.29 of the Revised Code, the individual may void the agreement and recover as provided for in section 4710.39 of the Revised Code.

(B) If a person providing debt settlement services is not licensed as required by section 4710.21 of the Revised Code when an individual assents to an agreement, the agreement is voidable by the individual.

(C) If an individual voids an agreement under this section, the licensee or person providing debt settlement services without a license does not have a claim against the individual for breach of contract or for restitution.

Sec. 4710.31.  If an individual who has entered into an agreement fails for sixty days to set aside the savings required by the agreement, a licensee may terminate the agreement.

Sec. 4710.32.  A licensee shall not do any of the following:

(A) Exercise or attempt to exercise a power of attorney after an individual has terminated an agreement;

(B) Initiate a transfer of money from an individual's account at a financial institution or with another person, unless the transfer is one of the following:

(1) A return of money to the individual;

(2) Before termination of an agreement, properly authorized by the agreement for payment of a fee;

(3) In payment of a creditor to fund a negotiated settlement authorized by an individual.

(C) Structure a settlement in a manner that would result in a negative amortization of any of an individual's debts;

(D) Settle a debt or lead an individual to believe that a payment to a creditor is in settlement of a debt to the creditor unless, at the time of settlement, the individual receives a certification or confirmation by the creditor that the payment is in full settlement of the debt, or is part of a payment plan that is in full settlement of the debt;

(E) Represent that:

(1) The licensee will furnish money to pay bills or prevent attachments;

(2) Payment of a certain amount will guarantee satisfaction of a certain amount or range of indebtedness; or

(3) Participation in a program will or may prevent litigation, garnishment, attachment, repossession, foreclosure, eviction, or loss of employment.

(F) Represent that the licensee is authorized or competent to furnish legal advice or perform legal services, unless such advice or services is provided by a licensed attorney working with the licensee;

(G) Represent that it is one of the following:

(1) A not-for-profit entity, unless it is organized and properly operating as a not-for-profit entity under the laws of this state;

(2) A tax-exempt entity, unless it has received certification of tax-exempt status from the federal internal revenue service.

(H) Take a confession of judgment or power of attorney to confess judgment against an individual;

(I) Employ an unfair, unconscionable, or deceptive act or practice, including the knowing omission of any material information;

(J) Purchase a debt or obligation of the individual;

(K) Obtain a mortgage or other security interest from any person in connection with the services provided to the individual;

(L) Make statements that are misleading or deceptive.

Sec. 4710.33.  (A) A licensee shall provide the accounting required by division (B) of this section upon request.

(B) For each settlement, the licensee shall document in a record an accounting of all of the following:

(1) The amount the creditor accepts as settlement in full of the debt and any other terms of the settlement;

(2) The amount of the debt when the creditor agreed to the settlement;

(3) For licensees using fee agreements that calculate any portion of the fee based on a percentage of savings the individual realizes from a settled debt, the calculation of that fee.

(C) A settlement shall be in writing, indicate the assent of the creditor through endorsement, and clearly set forth the amount of the debt, the amount the creditor has agreed to accept as payment in full of the debt, and any other material terms of the settlement. The debtor's authorization of the settlement shall be documented in a record.

(D) A licensee shall maintain records for each individual for whom it provides debt settlement services for four years after the final payment made by the individual and produce a copy of them to the individual within a reasonable time after a request is made for them. The licensee may use electronic or other means of storage of the records.

Sec. 4710.34.  (A) The director of commerce may do the following:

(1) Act on the director's own initiative or in response to complaints and may receive complaints regarding, or take action to obtain compliance with, sections 4710.20 to 4710.43 of the Revised Code;

(2) Seek or provide remedies as provided for in section 4710.36 of the Revised Code.

(B) The director may investigate and examine, by subpoena or otherwise, the activities, books, accounts, and records of a licensee, or a person to which a licensee has delegated its obligations under an agreement, to determine compliance with sections 4710.20 to 4710.43 of the Revised Code. Information that identifies individuals who have agreements with the licensee shall not be disclosed to the public. In connection with the investigation, the director may do the following:

(1) Charge the person the reasonable expenses necessarily incurred to conduct the examination;

(2) Require or permit a person to file a statement under oath as to all the facts and circumstances of a matter to be investigated.

(C) The director may adopt rules in accordance with Chapter 119. of the Revised Code to implement the provisions of sections 4710.20 to 4710.43 of the Revised Code.

(D) The director may enter into cooperative arrangements with any other federal or state agency having authority over licensees and may exchange with any of those agencies information about a licensee, including information obtained during an examination of the licensee.

Sec. 4710.35.  (A) As used in this section, "consumer price index" means the consumer price index prepared by the United States bureau of labor statistics (U.S. city average for urban wage earners and clerical workers: all items, 1982-1984=100) or, if that index is no longer published, a generally available comparable index.

(B) The director of commerce, by rule adopted in accordance with Chapter 119. of the Revised Code, shall establish reasonable fees to be paid by licensees for the expense of administering sections 4710.20 to 4710.43 of the Revised Code. All fees, charges, and penalties collected under sections 4710.20 to 4710.43 of the Revised Code shall be paid to the director and shall be deposited by the director into the state treasury to the credit of the debt settlement services fund, which is hereby created. Funds in the debt settlement services fund shall be used for administering sections 4710.20 to 4710.43 of the Revised Code.

(C) The director, by rule adopted in accordance with Chapter 119. of the Revised Code, shall establish the dollar amounts for the license fees under section 4710.22 of the Revised Code. Those license fees, and the penalties collected under section 4710.36 of the Revised Code, shall be adjusted to reflect inflation, as measured by the consumer price index. The director shall adopt a base year and adjust the dollar amounts, effective on July 1 of each year, if the change in the index from the base year, as of December 31 of the preceding year, is at least ten per cent. The dollar amount shall be rounded to the nearest ten dollars.

(D) The director shall notify licensees of any change in dollar amounts made pursuant to division (C) of this section and make that information available to the public.

Sec. 4710.36.  (A) The director of commerce shall enforce sections 4710.20 to 4710.43 of the Revised Code, and any rule adopted thereunder, by taking one or more of the following actions:

(1) Ordering a licensee or a director, employee, or other agent of a licensee to cease and desist from any violations;

(2) Ordering a licensee or another person that has caused a violation to correct the violation, or a licensee or another person that has failed to comply with those sections to correct the failure, including making restitution of money or property to a person aggrieved by a violation or failure to comply;

(3) Imposing on such a licensee or person a civil penalty not exceeding one thousand dollars for each violation or failure to comply;

(4) Prosecuting a civil action to do either of the following:

(a) Enforce an order;

(b) Obtain restitution or an injunction or other equitable relief, or both.

(B) If a person violates or fails to comply with, or knowingly authorizes, directs, or aids in the violation of or failure to comply with, a final order issued under division (A)(1) or (2) of this section, the director may impose an additional civil penalty not exceeding one thousand dollars for each violation or failure.

(C) The director may maintain an action to enforce sections 4710.20 to 4710.43 of the Revised Code in any county.

(D) The director may recover the reasonable costs of actions or proceedings brought pursuant to divisions (A) and (B) of this section, including attorney's fees based on the hours reasonably expended and the hourly rates for attorneys of comparable experience in the community.

(E) In determining the amount of a civil penalty to impose under division (A) or (B) of this section, the director shall consider the seriousness of the violation or failure, the good faith of the person committing the violation or failure, any previous violations or failures by the person, the deleterious effect of the violation or failure on the public, and any other factor the director considers relevant to the determination of the civil penalty.

(F) No enforcement action or adjudication order made by the director under this section shall be valid unless an opportunity for a hearing is afforded in accordance with Chapter 119. of the Revised Code. Such opportunity for a hearing shall be given before taking the enforcement action or making the adjudication order except in those situations where section 119.06 of the Revised Code provides otherwise.

Sec. 4710.37.  The director of commerce shall publish and maintain, on the department of commerce internet web site, a current list of all licensees.

Sec. 4710.38.  (A) As used in this section, "insolvent" means:

(1) Having generally ceased to pay debts in the ordinary course of business other than as a result of a good-faith dispute;

(2) Being unable to pay debts as they become due;

(3) Being insolvent within the meaning of the federal bankruptcy law.

(B) The director of commerce may suspend, revoke, or deny renewal of a license if any of the following apply:

(1) A fact or condition exists that, if it had existed when the licensee applied for a license, it would have been a reason for denial.

(2) The licensee has committed a material violation of or failure to comply with any provision of sections 4710.20 to 4710.43 of the Revised Code or a rule or order of the director.

(3) The licensee is insolvent.

(4) The licensee or an employee or affiliate of the licensee has refused to permit the director to make an examination authorized by division (B) of section 4710.34 of the Revised Code, failed to comply with an order to file a statement pursuant to division (B)(2) of section 4710.34 of the Revised Code within thirty days after the request, or made a material misrepresentation or omission with regard to that statement.

(5) The licensee has not responded within a reasonable time and in an appropriate manner to communications from the director.

(C) If the director suspends or revokes a license, the licensee may appeal and request a hearing pursuant to Chapter 119. of the Revised Code.

Sec. 4710.39.  (A) If an individual voids an agreement pursuant to section 4710.30 of the Revised Code, the individual may recover in a civil action all money paid by or on behalf of the individual pursuant to the agreement, in addition to the recovery under division (B)(3) of this section.

(B) Subject to division (C) of this section, an individual with respect to whom a licensee or a person providing debt settlement services without a license violates or fails to comply with any provision of sections 4710.20 to 4710.43 of the Revised Code may recover in a civil action all of the following from the licensee or person that caused the violation or failure:

(1) Compensatory damages for economic injury caused by the violation or failure;

(2) Except as otherwise provided in division (C) of this section, with respect to a failure to comply with division (C) of section 4710.25 of the Revised Code, a violation of section 4710.32 of the Revised Code, and a violation of or failure to comply with sections 4710.26, 4710.28, and 4710.29 of the Revised Code, the greater of the amount recovered under division (B)(1) of this section or one thousand dollars;

(3) For violations of section 4710.21 or 4710.29 of the Revised Code, reasonable attorney's fees and costs.

(C) In a class action, the minimum damages provided in division (B) of this section do not apply.

(D) A licensee is not liable under this section for a violation or failure to comply with any provision of sections 4710.20 to 4710.43 of the Revised Code if the licensee proves that the violation or failure was not intentional and resulted from a good-faith error notwithstanding the maintenance of procedures reasonably adapted to avoid the error. If, in connection with a violation or failure, the licensee has received more money than authorized by an agreement or by sections 4710.20 to 4710.43 of the Revised Code, the defense provided by this division is not available unless the licensee refunds the excess within three business days after learning of the violation or failure.

(E)(1) If a licensee violates or fails to comply with any provision of sections 4710.20 to 4710.43 of the Revised Code, an individual may recover under this section or, if the violation or failure by the licensee violates section 1345.02 of the Revised Code, under section 1345.09 of the Revised Code, but not both for the same act or practice.

(2) If a person providing debt settlement services without a license violates or fails to comply with any provision of sections 4710.20 to 4710.43 of the Revised Code, an individual may recover under this section and section 4710.41 of the Revised Code.

Sec. 4710.40.  (A) An action or proceeding brought pursuant to division (A) or (B) of section 4710.36 of the Revised Code must be commenced within two years after the conduct that is the basis of the director of commerce's complaint occurs.

(B) An action brought pursuant to section 4710.41 of the Revised Code must be commenced within two years after the latest of the following:

(1) The individual's last transmission of money to the licensee;

(2) The date on which the individual discovered or reasonably should have discovered the facts giving rise to the individual's claim;

(3) Termination of actions or proceedings by the director with respect to a violation of or failure to comply with any provision of sections 4710.20 to 4710.43 of the Revised Code.

(C) The period prescribed in division (B)(2) of this section is tolled during any period during which the licensee or, if different, the defendant, has materially and willfully misrepresented information required by sections 4710.20 to 4710.43 of the Revised Code to be disclosed to the individual, if the information so misrepresented is material to the establishment of the liability of the defendant under sections 4710.20 to 4710.43 of the Revised Code.

Sec. 4710.41. Any violation of or failure to comply with any provision of sections 4710.20 to 4710.43 of the Revised Code by a person providing debt settlement services without a license is deemed an unfair or deceptive act or practice in violation of section 1345.02 of the Revised Code. A person injured by such a violation has a cause of action and is entitled to the same relief available to a consumer under section 1345.09 of the Revised Code.

Sec. 4710.42.  All the powers and remedies available to the attorney general to enforce sections 1345.01 to 1345.13 of the Revised Code are available to the attorney general to enforce sections 4710.25 to 4710.33 of the Revised Code, to the extent those sections address a violation of section 1345.02 of the Revised Code.

Sec. 4710.43.  If a licensee act or practice violates sections 4710.25 to 4710.33 of the Revised Code and section 1345.02 of the Revised Code, one of the following, but not both, may occur regarding the act or practice:

(A) Recovery of civil penalties, damages, or reimbursement under section 1345.07 of the Revised Code;

(B) Recovery of civil penalties, damages, or restitution under section 4710.36 of the Revised Code.

Section 2.  That existing section 4710.01 of the Revised Code is hereby repealed.