[HISTORY: Adopted by the Legislature of the
Menominee Indian Tribe 5-16-2019 by Ord. No. 19-07. Amendments noted where
applicable.]
A.
Findings. The Menominee Tribal Legislature, the governing body of
the Tribe, finds that:
(1)
The Tribe desires to expedite the development of the economy of the
Tribe in order to improve the Tribe's economic self-sufficiency,
to enable the Tribe to better serve the social, economic, educational,
and health and safety needs of its members and visitors, and to provide
its members with opportunities to improve their own economic circumstances.
(2)
Tribal operation and licensing of consumer financial services businesses
and debt collection businesses is a legitimate means of generating
revenue to address the aforementioned needs and pursuing the Tribe's
goal of self-sufficiency and self-determination.
(3)
The Tribe has the legal authority to license and regulate consumer
financial services businesses and debt collection businesses within
its jurisdiction.
(4)
Properly licensed and regulated consumer financial services and debt
collection activities is consistent with announced federal policy
promoting tribal self-government and economic self-sufficiency.
(5)
Tribal regulation and control of consumer financial services businesses
and debt collection businesses within the jurisdiction of the Tribe
is essential for the protection of the public welfare.
(6)
It is essential that the Tribe regulate consumer financial services
and debt collection activities in a manner commensurate with Tribal
law and policy and applicable federal law.
(7)
It is essential that public confidence in consumer financial services
and debt collection activities that take place within the Tribe's
jurisdiction be maintained.
(8)
Adoption of a tribal consumer financial services regulatory chapter
by the Tribal Legislature is a necessary condition for the legal operation
of consumer. Financial services and debt collection activities within
the Tribe's Reservation and is in the best interest of the Tribe.
(9)
Establishment of a Tribal consumer financial services Regulatory
Authority to implement the purpose and intent of the tribal consumer
financial services regulatory chapter within the Tribe's Reservation
is in the best interest of the Tribe.
B.
Intent. The Tribal Legislature declares that the intent of this chapter
is to:
(1)
Diversify and expedite the development of the economy of the Tribe's Reservation for the purposes described in § 22-1A above.
(2)
Define general regulatory powers to be exercised by a Tribal Consumer
Financial Services Regulatory Authority in relation to the regulation,
control, and oversight of consumer financial services businesses and
debt collection businesses and their vendors.
(3)
Ensure that all consumer financial services business and debt collection
business profits are used for the benefit of the Tribe's government
and its members and are used to improve the Tribe's economic
self-sufficiency, to enable the Tribe to better serve the social,
economic, educational, health, and safety needs of its members and
visitors, and to provide its members with opportunities to improve
their own economic circumstances.
(4)
Ensure that consumer financial services and debt collection activities
are conducted appropriately by licensees and consumers and that it
remains free from corrupt, incompetent, unconscionable, unfair, and
dishonest practices.
(5)
Protect the interests of the public in the offering of consumer financial
services and debt collection activities.
(6)
Ensure the maintenance of public confidence in tribal consumer financial
services practices.
(7)
Ensure that the Tribe provides a tribal-based forum for the fair
and orderly resolution of consumer financial services and debt collection
disputes consistent with the Tribe's preservation of sovereign
immunity.
(8)
Ensure that tribal consumer financial services laws are enforced
by the Tribe upon persons involved in tribal consumer financial services
and debt collection activities.
C.
Policy.
(1)
Tribal policy of self-government. The Tribe is firmly committed to
the principle of tribal self-government. Profits from consumer financial
services and debt collection activities shall be utilized and expended
only for the following purposes:
(2)
Tribal consumer financial services policy. The establishment, promotion
and operation of consumer financial services and debt collection activities
are necessary, provided that such consumer financial services and
debt collection activities are regulated and controlled by the Tribe
pursuant to this chapter and the profits of such consumer financial
services and debt collection activities are used exclusively for the
benefit of the Tribe.
(3)
Responsibility for regulation. The Tribe shall have the sole proprietary
interest in and responsibility for the conduct of consumer financial
services and debt collection activities authorized by this chapter.
(4)
Consumer financial services and debt collection activities authorized.
Consumer financial services and debt collection activities that are
subject to licensing under this chapter are authorized and permitted
only as described in this chapter and any regulations of the Authority
adopted under this chapter.
A.
Authority. This chapter is enacted pursuant to the inherent sovereign
powers of the Menominee Indian Tribe of Wisconsin and in accordance
with the Tribe's Constitution.
B.
Applicability. This chapter applies to loans made by the lender and
to include modifications, refinancing, consolidations, deferrals consummated
within the Tribe's jurisdiction. For purposes of this chapter,
a loan is deemed consummated within the Tribe's jurisdiction
and therefore subject to this chapter when a consumer completes and
sends to the lender, either electronically or through other means
of delivery, a written agreement evidencing the consumer's signed
agreement to enter into a loan.
C.
Construction. In construing the provisions of this chapter, the following
shall apply:
(1)
The provisions of this chapter, being necessary for the benefit of
the Tribe and its members, shall be liberally construed to effectuate
its purpose and to promote substantial justice.
(2)
The findings, intentions, and policies stated in § 22-1 constitute the standards to be observed by the Authority in the exercise of its discretionary powers under this chapter, in the adoption of implementing regulations, in the issuance of orders and declaratory statements, in the examination and supervision of licensees, and in all matters of construction and application of this chapter required for any determination or action by the Authority.
(3)
No person acting, or who has acted, in good faith reliance upon a
rule, order, or declaratory statement issued by the Authority shall
be subject to any criminal, civil, or administrative liability for
such action, notwithstanding a subsequent decision by a court of competent
jurisdiction invalidating the rule, order, or declaratory statement.
In the case of an order or a declaratory statement that is not of
general application, no person other than the person to whom the order
or declaratory statement was issued is entitled to rely upon it, except
upon material facts or circumstances that are substantially the same
as those upon which the order or declaratory statement was based.
In this chapter, except where otherwise specifically provided
or unless the context otherwise requires, the following terms and
expressions shall have the following meanings:
Any person appointed by the Tribal Legislature as an officer
of the Authority, as that term is defined herein, while engaged in
or on account of the performance of official duties.
Any person who has applied for a license under the provisions
of this chapter.
A request for the issuance of a license under the provisions
of this chapter.
The Tribal Consumer Financial Services Regulatory Authority,
created and established by the Tribal Legislature, charged with the
implementation and enforcement of the tribal consumer financial services
regulatory chapter and all other regulations promulgated by the Authority
or the Tribe relating to consumer financial services activities and
associated licensing requirements.
This tribal consumer financial services regulatory authority
chapter.
A natural person who acquires goods, services, or credit
primarily for personal, family or household purposes. The term does
not include a person who acquires goods, services, or credit primarily
for business, commercial, or investment purposes.
The business of providing goods, services, or credit to consumers
in transactions subject to this chapter in exchange for interest,
finance charges, fees, rent, or other form of consideration on the
Tribe's Reservation or within the Tribe's jurisdiction,
including transactions originated from the Tribe's Reservation
or Tribe's jurisdiction. The term includes, without limitation,
short-term loans, small-dollar loans, credit sales, pawn transactions,
sale-leaseback transactions, rent-to-own transactions, guaranties,
letters of credit, or other forms of consumer financial services.
All activities associated with purchasing debt from a creditor
and collecting debt from a consumer.
A person that is licensed by the Authority to engage in debt
collection activities.
A draft or agreement for an electronic debit authorized by
a consumer and made payable to a financial services licensee or debt
collection licensee.
A person that is licensed by the Authority to be employed
by a financial services licensee or a tribal debt collection licensee.
The one-hundred-percent tribally owned and operated entity
that is licensed by the Authority to engage in the business of providing
tribal consumer financial services.
Any licensee that offers or facilitates the processing of
a loan through any method, including storefront, mail, telephone,
Internet, or any electronic means.
The official, legal and revocable financial services license,
vendor license, employee license, or debt collection license, issued
by the Authority. A license issued pursuant to this chapter is a revocable
privilege.
Any financial services licensee, vendor licensee, employee
licensee, and debt collection licensee whenever used generally in
this chapter.
Any natural person, partnership, joint venture, association,
trust, firm, estate, club, society, receiver, assignee, trustee in
bankruptcy, political entity, company, corporation or other group,
however organized, and any owner, director, officer or employee of
any such entity or any group of individuals acting as a unit, whether
mutual, cooperative, fraternal, nonprofit, or otherwise, the government
of the Tribe, any governmental entity of the Tribe or any of the above-listed
forms of business entities that are wholly owned or operated by the
Tribe, or any other entity whatsoever, who engages or seeks to engage
in the business of consumer financial services pursuant to this chapter;
provided, that the term does not include the federal government or
any agency thereof.
All rights to payment of indebtedness and obligation (including,
without limitation, unpaid principal, accrued interest, costs, fees,
expenses and indemnity obligations) owing by a consumer in respect
of a loan or loans or other financial accommodations made or extended
for the benefit of such consumer as such rights to payment of indebtedness
and obligations have been sold and assigned to a debt collection licensee.
The Menominee Indian Reservation.
A debt collection licensee that is wholly owned by the Tribe
or a tribal business.
The Menominee Indian Tribe of Wisconsin Tribal Legislature,
the governing body of the Tribe as defined and described in the Tribe's
Constitution.
The Menominee Indian Tribe of Wisconsin.
A person or entity that provides services aiding a financial
services licensee or debt collection licensee.
A vendor that is licensed by the Authority to provide services
aiding the financial services licensee or debt collection licensee
unless otherwise exempt under this chapter.
A.
Establishment and purpose. The Tribal Legislature hereby creates
and establishes the Tribal Consumer Financial Services Regulatory
Authority ("Authority") as a governmental subdivision of the Tribe.
The Authority has charge of the implementation of the tribal consumer
financial services regulatory chapter and regulations of the Tribe
relating to business activities and associated licensing requirements.
B.
Location and place of business. The Authority may maintain its headquarters,
principal place of business and office within the Tribal offices.
The Authority may, however, with a majority vote from the Tribal Legislature,
establish other places of business in such other locations as the
Authority may from time to time determine to be in the best interest
of the Tribe.
C.
Duration. The Authority shall have perpetual existence and succession
in its own name, unless dissolved by the Tribal Legislature pursuant
to Tribal law.
D.
Attributes. As a governmental subdivision of the Tribe, the Authority
is under the direction and control of the Tribal Legislature, and
it is the purpose and intent of the Tribal Legislature that the operations
of the Authority be conducted on behalf of the Tribe for the sole
benefit and interests of the Tribe, its members, residents of, and
visitors to the Tribe's Reservation.
(1)
Arm of Tribe. In carrying out its purposes under this chapter, the
Authority shall function as an arm of the Tribe. To fund necessary
government function and regulatory oversight, the Authority may, upon
receiving any necessary approvals from the Tribal Legislature, impose
a fee or tax on any financial services licensee or tribal debt collection
licensee, and make payment of such a fee or tax subject to a financial
services licensee's or tribal debt collection licensee's
existing agreements or business relationships, as a condition of its
financial services license remaining in good standing.
(2)
Tribal actions. Notwithstanding any powers delegated to the Authority
under this chapter, the Tribe reserves to itself the right to bring
suit against any person or entity in its own right, on behalf of the
Tribe or on behalf of the Authority whenever the Tribe deems it necessary
to protect the sovereignty, rights and interests of the Tribe, the
Authority, or the licensee.
E.
Sovereign immunity of the authority.
(1)
Immunity from suit. The Authority, as an arm of the Tribe, is cloaked
by tribal and federal law with all the privileges and immunities of
the Tribe, except as specifically limited by this chapter, including
sovereign immunity from suit in any tribal, federal or state Court.
(2)
No Waiver. Nothing in this chapter shall be deemed or construed to be a waiver of sovereign immunity of the Authority from suit in state or federal Court. Any waiver shall be made pursuant to Subsection E(4), below.
(3)
No consent to jurisdiction. Nothing in this chapter shall be deemed
or construed to be a consent of the Authority to the jurisdiction
of the United States or of any state or of any other tribe with regard
to the business or affairs of the Authority.
(4)
Waiver of sovereign immunity of the Authority. The Authority is only
subject to suit pursuant to Article XVIII of the Constitution.
F.
Sovereign immunity of the Tribe. With respect to the existence and
activities of the Authority, all inherent sovereign rights of the
Tribe as a federally recognized Indian Tribe are hereby expressly
reserved, including sovereign immunity from suit in any state, federal
or tribal Court. Nothing in this chapter nor any action of the Authority
shall be deemed or construed to be a waiver of sovereign immunity
from suit or counterclaim of the Tribe, a consent of the Tribe to
the jurisdiction of the United States, any state or other tribe with
regard to the business or affairs of the Authority or the Tribe, a
consent of the Tribe to any cause of action, counterclaim, case or
controversy, or to the levy of any judgment, lien or attachment upon
any property of the Tribe, a consent to suit or counterclaim in respect
to any land within the exterior boundaries of the Tribe's reservation,
or to be a consent to the alienation, attachment or encumbrance of
any such land.
G.
Assets of the Authority. The Authority shall have only those assets
specifically assigned to it by the Tribal Legislature, acquired in
its name by the Tribe, or acquired by the Authority on its own behalf.
No activity of the Authority or any indebtedness incurred by it shall
implicate or in any way involve any assets of tribal members or the
Tribe not assigned in writing to the Authority.
H.
Regulatory agents; compensation, duties.
(1)
Regulatory agents; legislative oversight. The Authority shall be
composed of at least one but not more than three agents appointed
by the Tribal Legislature. The agents will be employees of the Tribe
and subject to the Tribe's employment policies and professional
and ethics standards. The Tribal Chairman will supervise the agents
for employment purposes.
(2)
Term of office. Agents shall serve three-year terms unless an agent
is removed or otherwise replaced by the Tribal Legislature, or the
agent's term is extended. There are no limits to the number of
terms a person may serve.
(3)
Staggered terms. The Tribal Legislature shall not replace more than one agent per calendar year unless necessitated by Subsection K based on events beyond the control of the Tribal Legislature. The Tribal Legislature may extend any agent's term as necessary to comport with this subsection.
(4)
Compensation. The compensation of the agents shall be established
from time to time by the Tribal Legislature.
(5)
Duties. The agents shall have responsibilities that include but are
not limited to:
(a)
By majority vote, the agents may elect a Chairman who will oversee
and have responsibility for the day-to-day operations of the Authority,
including supervision of Authority employees;
(b)
Accept service of process; and conduct or oversee the conduct
of any meetings or hearings held by the Authority in accordance with
this chapter or further directive of the Tribal Legislature.
(c)
The agents may identify additional duties and assign particular
duties to an agent or an Authority employee. Compensation shall be
submitted to the Tribal Legislature with the Authority's annual
budget approved by the Tribal Legislature.
(6)
Agent qualifications. Any person appointed as an agent of the Authority
shall meet the following qualifications:
(a)
The agents shall be enrolled members of the Tribe.
(b)
An agent shall have expertise, experience, education or a combination
thereof in the following areas: financial services, finance, management,
business, governmental regulation, law, and/or Tribal policy.
(c)
An agent shall be at least 21 years of age and show proof of
high school diploma or equivalent.
(d)
No person shall serve as an agent if:
[1]
His/her prior activities, criminal record, if any, or reputation,
habits or associations:
[2]
He/she has been convicted of or entered a plea of no contest
to any felony or to a misdemeanor involving breach of trust or dishonesty
in any jurisdiction; or
[3]
He/she, or any member of his or her immediate family has an
ownership, partnership or other direct monetary or financial interest
in the conduct of any licensee or is in privity with a financial services
licensee or tribal debt collection licensee, or one of its agents,
contractors, or subcontractors; or if he or she has any other personal
or legal relationship that places him/her in a conflict of interest
with any licensee. For purposes of this subsection, "immediate family"
includes spouse or significant other, parents, children, and siblings.
Ownership of a licensee by virtue of membership in the Tribe is not
a per se monetary or financial interest in the conduct of any licensee.
I.
Nonvoting agent. In addition to the agents appointed pursuant to Subsection H, the Legislature has full discretion whether to appoint a nonvoting agent to serve as a nonvoting agent of the Authority who has sufficient expertise in banking and finance, regulatory enforcement, or public policy and whose professional experience will aid the Authority with national outreach and federal and Tribal policy development. A nonvoting agent shall not be an employee or have any interest in any licensee or vendor.
J.
Meetings. Meetings of the Authority shall occur in the manner described
herein.
(1)
Regular meetings. The Authority shall meet at least twice, but no
more than four times, per month at such dates, times, and locations
as agreed upon by the majority of the agents. In no event shall meetings
of the Authority exceed 48 regular meetings per year without prior
Tribal Legislature approval.
(2)
Special meetings. In addition, two of the three agents, upon 72 hours'
written notice to each member, may call special meetings but only
for the purpose of exercising enforcement authority prescribed under
this chapter or as necessary to deal with issues involving emergency
or exigent circumstances requiring the immediate attention of the
Authority.
(3)
Meeting conduct. The Authority shall conduct meetings in the manner
described herein.
(a)
The Authority shall keep a complete and accurate record of all
its meetings.
(b)
A majority of the agents shall constitute a quorum for the transaction
of any business, for the performance of any duty, or for the exercise
of any power which this chapter requires the Authority to transact,
perform, or act.
(c)
The Authority may conduct meetings in closed session to protect
the integrity of personnel matters, background investigations or enforcement
actions.
(4)
Confidentiality. All records of the Authority are confidential records
of the Tribe and may not be released without Tribal Legislative approval.
K.
Prohibited acts. The agents and Authority employees shall not do
any of the following with respect to any licensee under the jurisdiction
of the Authority:
(1)
Be indebted, either directly or indirectly, as consumer unless such
indebtedness was contracted before becoming employed by or appointed
to the Authority and is fully disclosed to the Legislature.
(2)
Be an officer, director, or employee of any licensee or lender to
the Tribe.
(3)
Be interested in, directly or indirectly, or receive from any licensee
or any officer, director, or employee of any licensee any salary,
fee, compensation or other valuable thing by way of gift, donation,
credit, or compensation for services or otherwise; except that agents
and Authority employees are permitted to receive a pro-rata share
of revenue that has been generated by a licensee and is distributed
among all eligible tribal members by virtue of membership in the Tribe.
L.
Removal of regulatory agent/vacancy.
(1)
Cause for removal. An agent may be removed by the Tribal Legislature
for any of the following reasons: serious inefficiency, neglect of
duty, malfeasance, misfeasance, nonfeasance, misconduct in office,
or for any conduct which threatens the honesty and integrity of financial
services or the Authority or violates the intent of this chapter.
(2)
Notice; hearing; removal. If there is cause for removal, an agent
shall be given a written notice of the specific charges against him
or her. The Tribal Legislature shall schedule a hearing at least 10
days after notice was delivered to the agent. Agents subject to removal
will be given an opportunity to provide evidence rebutting the grounds
for their proposed removal before the removal is considered. A vote
of the Tribal Legislature on the validity of the removal shall be
final and not subject to further appeal.
(3)
Vacancy. In the event of a vacancy, the Tribal Legislature shall
appoint another qualified person to fill the position. The term of
office of the appointee shall be for the balance of the unexpired
term for the position.
M.
Powers of the Authority. The Authority has the power and responsibility
to discharge all duties imposed by law and this chapter, including
but not limited to:
(1)
To promulgate, adopt, and enforce regulations and rules furthering
the purpose and provisions of this chapter; provided that such regulations
shall take effect only upon approval of the Tribal Legislature.
(2)
To examine or inspect or cause to be examined or inspected each licensee
annually and more frequently if the Authority considers it necessary.
(3)
To make or cause to be made reasonable investigations of any licensee
or person as it deems necessary to ensure compliance with this chapter
or any order of the Authority, to determine whether any licensee or
person has engaged, is engaging or is about to engage in any act,
practice or transaction that constitutes an unsafe or unsound practice
or violation of this chapter or any order of the Authority; or to
aid in adopting rules or regulations pursuant to this chapter.
(4)
To establish procedures designed to permit detection of any irregularities,
fraud, or the like.
(5)
Upon prior explicit resolution and approval of the Tribal Legislature,
to employ such advisors as it may deem necessary. Advisors may include,
but are not limited to, lawyers, accountants, law enforcement specialists
and financial services professionals.
(6)
To accept, review, approve or disapprove any application, including
conducting or arranging for background investigations of all applicants.
(7)
To examine under oath, either orally or in writing, in hearings or
otherwise, any licensee or person, or agent, officer or employee of
any financial services licensee or tribal debt collection licensee,
or any other witness with respect to any matters related to this chapter
and to compel by subpoena the attendance of witnesses and the production
of any books, records, and papers with respect thereto. Upon refusal
to appear or produce, the Authority may apply to a court of competent
jurisdiction to compel appearance or production.
(8)
To make, or cause to be made by its agents or employees, an examination
or investigation of the place of business, equipment, facilities,
tangible personal property and the books, records, papers, vouchers,
accounts, documents and financial statements of any licensee or person
engaging or participating in, or suspected to be engaging or participating
in, consumer financial services.
(9)
To discipline any licensee or person engaging or participating in consumer financial services in violation of this chapter by ordering immediate compliance, issuing fines and sanctions, and suspending or revoking any license pursuant to the hearings and due process required by Subsection R.
(10)
To arbitrate, compromise, negotiate or settle any dispute to which
it is a party relating to the Authority's authorized activities,
subject to any approval that may be required by the Tribal Legislature.
(11)
To adopt a schedule of fees to be charged for the processing of applications
and issuance and renewal of licenses, including fees or charges associated
with conducting background checks; for reasonable examinations of
licensees; and, for services rendered relating to transcripts and
the furnishing or certifying of copies of proceedings, files, and
records and to impose the forgoing fees as applicable.
(12)
To establish and maintain such bank accounts as may be necessary
or convenient.
(13)
To make such findings as may be necessary to implement the Authority's
duties and powers, with such findings to be given deference as the
legally binding findings of a governmental entity.
(14)
To counsel lenders and consumers on their rights and duties under
this chapter.
(15)
Establish programs for the education of consumers with respect to
credit practices and problems.
N.
Investigations, right of entrance.
(1)
Investigations. The Authority, upon petition, complaint or upon its
own initiative or whenever it may deem it necessary in the performance
of its duties or the exercise of its powers, may investigate and examine
the operation and premises of any licensee or person engaging or suspected
to be engaging in consumer financial services within its jurisdiction.
(2)
In undertaking such investigations, the Authority may request the
assistance of federal or local law enforcement officials, legal counsel
and/or other third parties.
(3)
In conducting such investigation, the Authority shall make no order
or final decision without affording any affected party notice and
a hearing pursuant to this chapter.
(4)
Right of entrance. The Authority and duly authorized employees or
agents of the Authority, during regular business hours, may reasonably
enter upon any tribal premises of any licensee or person engaging
in or suspected to be engaging in tribal consumer financial services
for the purpose of making inspections and examining the accounts,
books, papers and documents of any such licensee or person.
(5)
Aid to entry. The staff of the licensee or person engaging in or
suspected to be engaging in tribal consumer financial services shall
facilitate such inspection or examinations by giving every reasonable
aid to the Authority and to any properly authorized officer or employee.
O.
Annual budget. The Authority shall prepare an annual operating budget
for all Authority activities and present it to the Tribal Legislature
in the time and manner established by the Tribal Legislature.
P.
Authority regulations.
(1)
Regulations necessary to carry out the implementation and orderly
performance of the Authority's duties and powers shall include,
but shall not be limited to, the following:
(a)
The making of findings or other information required by or necessary
to implement this chapter;
(b)
Interpretation and application of this chapter, as may be necessary
to enforce the Authority's duties and exercise its powers;
(c)
A regulatory system for overseeing consumer financial services,
including accounting, contracting, management and supervision;
(d)
The conduct of inspections, investigations, hearings, enforcement
actions and other powers of the Authority authorized by this chapter;
and
(e)
Specification of the amount and the schedule of application
and examination fees that shall be imposed by the Authority.
(2)
Promulgation of regulations. The Authority may promulgate regulations
as follows:
(a)
The Tribal Legislature, the Authority, or any licensee may request
the promulgation of a regulation by submitting a written request and
draft of the proposed regulation to the Authority;
(b)
Within 30 days, the Authority will review the request and proposed
regulation to ensure it does not conflict with this chapter or any
applicable law;
[1]
If the proposed regulation conflicts with this chapter or any
applicable law, the Authority may revise the proposed regulation to
conform to this chapter or other applicable law, or return the proposal
with an explanation of any nonconformity to the submitting person
for further review.
[2]
If the proposed regulation does not conflict with this chapter
or any applicable law, the Authority will notify the Tribal Legislature,
the submitting person, and any licensees that may be affected by the
proposed regulation by means reasonably calculated to inform the Tribal
Legislature and all affected persons;
(c)
After notice is sent, unless exigent circumstances exist, the
Authority will allow at least 30 days for the Tribal Legislature and
any affected persons to submit written comments on the proposed regulation
that support, oppose, or suggest amendments to the proposed regulation.
When exigent circumstances exist, the Authority may promulgate a regulation
without a comment period, and any licensee or person affected may
protest the regulation by following the procedure detailed in subsection
O(2)(g). Upon promulgation of any regulation under exigent circumstances,
within seven days, the Authority will notify the Tribal Legislature
of the promulgated regulation and the exigent circumstances.
(d)
After the comment period has expired:
[1]
If the proposed regulation is unopposed, the Authority will
shall promulgate and publish the proposed regulation by majority vote
and it will be implemented;
[2]
If the proposed regulation is opposed or amendments are proposed,
the Authority may either decline to promulgate the regulation or abandon
the proposed regulation, amend the proposed regulation, or conduct
a hearing on the proposed regulation to allow interested parties to
advocate on the proposal.
(e)
The Authority will notify the Tribal Legislature and all affected persons of its decision pursuant to Subsection D above.
(f)
Tribal Legislature review. Within 30 days after the Authority
promulgates or declines to promulgate a regulation, a licensee may
request a Tribal Legislature review of the Authority's decision.
A licensee may submit a written request for a Tribal Legislature review
to the Authority. The written request must detail the basis for the
Tribal Legislature review. The Authority will forward to the Tribal
Legislature the written request for review, the proposed regulation
at issue, a written explanation of the bases for the Authority's
decision to promulgate or not to promulgate the proposed regulation,
and an agenda request to appear before the Tribal Legislature. The
Authority will send copies of this submission to the licensee requesting
the Tribal Legislature review.
(g)
The Tribal Legislature may accept or deny the request to review
the Authority's decision.
(h)
If the Tribal Legislature declines the request to review the
Authority's decision, the Authority's decision on the proposed
regulation is final.
(i)
If the Tribal Legislature grants the request to review the Authority's
decision, the Tribal Legislature may proceed to review the Authority's
decision in any manner it deems appropriate.
(j)
The Tribal Legislature may promulgate or rescind any regulation
at any time by majority vote. The Tribal Legislature is in no way
bound by this section.
(k)
Only regulations promulgated by this procedure or promulgated
by the Tribal Legislature will be enforceable.
Q.
Report to the Tribal Legislature. The Authority shall file reports
with the Tribal Legislature summarizing reports received from each
licensee, investigations undertaken, licensee violations and other
activities undertaken by the Authority to keep the Tribal Legislature
fully informed as to the status of the Authority's activities.
The Authority shall define by regulation, subject to the approval
of the Tribal Legislature, the schedule for the submission of such
reports.
R.
Notice and opportunity to cure; due process; notice; hearings; examiner.
For a violation of this chapter or denial of an application, the Authority
shall provide notice and the opportunity for a hearing comporting
with notions of due process if it is to utilize any of its enforcement
capabilities in the administration of its powers and duties hereunder.
At the discretion of the Authority, the Authority may provide a reasonable
opportunity to cure before it initiates any enforcement action. If
emergency enforcement action is taken based upon a showing of exigent
circumstances or good cause, the Authority shall provide notice and
an opportunity to be heard within 14 days of the occurrence of such
enforcement action to allow an aggrieved party an opportunity to object
to the enforcement action. Upon receipt of any notice of violation,
a licensee may request a stay of any enforcement action to allow time
to cure or to work with the Authority towards a voluntary resolution.
(1)
No hearing, voluntary resolution. Whenever it shall appear to the
satisfaction of the Authority that all of the interested parties involved
in any dispute or concern have agreed concerning the matter at hand,
the Authority may dismiss an enforcement action or approve resolution
of the issue, as appropriate, without a hearing.
(2)
Notice of hearing. A written notice shall set forth, with specificity,
the issues to be resolved and the date and time at which a hearing
shall be conducted.
(3)
Hearing.
(a)
Except as determined by the Authority, a hearing should be scheduled
between 10 and 30 business days after the notice of hearing is delivered.
(b)
At the hearing, the affected parties shall be provided the opportunity
to present oral or written evidence. An affected party shall have
an opportunity to cross-examine opposing witnesses, and to present
any other evidence as to why a denial, suspension, or revocation order
should not be issued.
(c)
Hearings shall be open to all people interested therein as determined
by the Authority.
(4)
Examiner. The Authority's agent(s) shall act as examiner for
the purpose of any hearing, or the Authority may appoint an examiner
qualified in the law or possessing knowledge or expertise in the subject
matter of the hearing for the purpose of conducting any hearing. Any
such appointment shall constitute a delegation to such examiner of
the powers of the Authority under this chapter with respect to any
such hearing.
(5)
Decision. The Authority shall issue a written decision to all affected
parties within 30 days after the hearing.
(6)
Appeals. Affected parties may appeal an Authority determination by
filing a written appeal to the Tribal Court within 20 days of receiving
the Authority's final written decision.
A.
Applicability. Unless exempt as described in § 22-6, any person or vendor seeking to engage in tribal consumer financial services or tribal debt collection activities subject to this chapter or, when applicable, be employed by a financial services licensee or tribal debt collection licensee, or vendors, shall apply for and receive all required licenses prior to engaging in tribal consumer financial services or tribal debt collection activities, or being employed by a financial services licensee or tribal debt collection licensee. A license is a revocable privilege to do business within the jurisdiction of the Tribe.
B.
Application procedure.
(1)
Submission to Authority. An applicant shall submit an application
to the Authority on such form as the Authority may require.
(2)
Application Contents. At a minimum, the application shall contain
the following information:
(a)
For applicants that are other than natural persons:
[1]
Each of the applicant's owners, officers and/or directors;
and principal management employees, including any chief executive
officer, chief financial officer, chief operating officer, and general
manager;
[2]
Each of its owners or partners, if an unincorporated business;
[3]
Each of its shareholders who own more than 10% of the shares
of the corporation;
(b)
All natural persons identified on any application shall include
his criminal and civil record, if any, an explanation of any crimes
for which he has been convicted, or to which he has entered a plea
of no contest, civil suits in which a judgment has been entered against
him, and a complete disclosure of any pending or anticipated civil
or criminal action against him in any jurisdiction. Each natural person
identified on any application shall provide written permission giving
the Authority or its designees the right to investigate his background,
including his criminal record;
(3)
An applicant for an employee license shall provide all necessary
information and written permission for the Authority or its designee
to obtain the applicant's credit history and/or credit score;
(4)
An application shall list all of the consumer financial services-related
or debt collection-related licenses the applicant has ever applied
to the Authority for, whether or not such licenses were issued;
(5)
An application shall describe the applicant's proposed business,
including the type of consumer financial services it intends to engage
in;
(6)
The applicant shall disclose whether there is a previous contractual
relationship with any Indian Tribe; and
(7)
The applicant shall execute a sworn statement that if the license
applied for is issued, the applicant will submit to the jurisdiction
of the Tribe; the applicant will abide by all applicable Tribal and
federal laws, regulations and policies; and the information contained
in the application is true and correct to the best of applicant's
knowledge.
(8)
Each consumer financial services, debt collection, and vendor application
shall be accompanied by an application fee, the amount of which shall
be set by the Authority. There is no fee for employee licensee applications.
C.
Review, issuance and denial, term.
(1)
Consumer financial services license or tribal debt collection license.
A consumer financial services license or tribal debt collection license
shall automatically issue if the following criteria are met:
(b)
The consumer financial services or debt collection activities
are authorized pursuant to this chapter;
(c)
The consumer financial services or debt collection activities
are authorized by a Tribal Legislature resolution; and
(d)
The Tribe has the sole ownership interest in the tribal enterprise
that provides the consumer financial services or debt collection activities.
(2)
Employee and vendor license. Upon compliance with Subsection B, the Authority shall review the qualifications of the applicant sufficient to make a determination of eligibility as required under this chapter.
(3)
Issuance. Upon completion of any necessary background investigation,
the Authority may issue a license on a conditional or unconditional
basis. The Authority may in its discretion grant a temporary license
after submission of a completed application and a preliminary determination
of suitability by the Authority.
(4)
Denial. The Authority, when it does not license an applicant shall notify the applicant in writing, provide the basis for the denial of the license, and otherwise comply with the procedural requirements of § 22-4R of this chapter.
(5)
Term. Any license issued pursuant to this section shall be effective
for a period of two years from the date of issuance. A temporary license
may be issued for such period of time as determined by the Authority,
but not to exceed sixty 60 days, with a possible sixty-day renewal
for cause.
(6)
License substance and classification. The license shall bear on its
face the name of the licensee, the tribal logo, the issue date, the
license number, and the applicable classification of the license.
Subject to this chapter, the Authority may issue licenses that authorize
a licensee to provide all types of consumer financial services under
this chapter or a limited-purpose license that only authorizes certain
types of consumer financial services under this chapter. Each license
shall specify its scope.
(7)
Record retention. The Authority shall maintain the applicant's
file, including applications, background investigation reports, and
eligibility determination reports for no less than three years from
the date of termination of employment.
(8)
License posting. A license issued pursuant to this chapter shall
be conspicuously posted at the licensee's place of business and
on each of its websites.
D.
Application denial; suspension or revocation of license.
(1)
Denial; suspension or revocation. The Authority shall not unreasonably withhold issuance or renewal of a license. The Authority shall deny an application, or suspend or revoke a license, only after notice and an opportunity for a hearing pursuant to § 22-4R herein, unless the Authority finds that an applicant or licensee:
(a)
Failed to pay application or renewal fees;
(b)
Made a material misstatement or omission on the application
or on any document required to be filed with the Authority;
(c)
Withheld or provided incomplete or insufficient pertinent information
from the Authority;
(d)
Is not a person of honesty, truthfulness or good character;
(e)
Violated or aided, abetted, or conspired or knowingly caused
any licensee or person to or otherwise participate in the violation
of this chapter or the rules and regulations of the Authority;
(f)
Participated in consumer financial services in violation of
this chapter;
(g)
Knowingly falsified books or records that relate to a transaction
connected with the operation of consumer financial services or debt
collection activities;
(h)
Failed to keep sufficient books and records to substantiate
receipts, disbursements, and expenses incurred or paid by a licensee
authorized pursuant to this chapter or to substantiate, by the Authority,
compliance with this chapter;
(i)
Failed to take reasonable measures to ensure that an agreement
with a consumer is not materially breached;
(j)
Is insolvent;
(k)
Is charged, has been convicted, or has entered a plea of no
contest in any jurisdiction with a felony or any other crime involving
breach of trust or dishonesty;
(l)
After notice and an opportunity to be heard, has been found
by an administrative agency of any jurisdiction responsible for conduct
that involved fraud, deceit or misrepresentation;
(m)
Has had a financial judgment ordered against it in a civil action
based on fraud, deceit or misrepresentation;
(n)
Employed any person in whom the licensee knew or should have
known was convicted of fraud, theft, or embezzlement;
(o)
Refused to comply with any lawful order, inquiry or directive
of the Authority, the Tribal Legislature, the Tribal Court;
(p)
Attempted to bribe or offer something of value to any person,
Tribal Legislature member, or an agent in an attempt to avoid or circumvent
the law;
(q)
Stole or attempted to steal funds or other items of value;
(r)
Poses a threat to the public interest or the effective regulation
of tribal consumer financial services or debt collection activities;
(s)
Creates or enhances the danger of unsuitable, unfair or illegal
practices and methods and activities in the conduct of tribal consumer
financial services or debt collection activities;
(t)
Has had a license suspended or revoked and not subsequently
reinstated; or
(u)
Has demonstrated an inability to manage personal or business
finances or demonstrates a sufficient indebtedness in relation to
income so as to cause concern for the ability to fulfill its responsibilities
under this chapter.
(2)
Acts of controlling persons. It is sufficient cause for denial of an application or the suspension or revocation of a license if an officer, director, partner, employee or controlling person of the licensee or applicant acted or failed to act in a manner that would be cause for denial, suspension or revocation. For purposes of this subsection, "controlling person" means a person described in Subsection B(2)(a) or who has the ability to affect one or more significant business decisions of the licensee or applicant.
E.
Renewal.
(1)
Renewals. A licensee shall apply to renew a license before the license
expires. Applicants may be required to provide updated material as
requested.
(2)
Nonrenewal. The Authority may deny renewal of a license if the Authority finds the existence of any circumstance listed in Subsection D(1) above, or that any other fact or condition exists that, if it had existed at the time of the original application for the license, would have warranted the Authority to refuse to issue the license.
F.
Voluntary surrender of license. Any licensee may voluntarily surrender
its license at any time by giving written notice of the surrender
to the Authority.
G.
Assignment or transfer. A license is not salable, lendable, transferable
or assignable, and control of a license shall not be acquired through
any stock purchase or other devise.
H.
Deposits of fees and assessments. Application fees, renewal fees,
late payment penalties, civil penalties, administrative fines and
other fees or penalties provided for in this chapter shall in all
cases be paid directly to the Authority. The Authority shall deposit
such proceeds into an account or fund designated by the Tribal Legislature.
The following persons are subject to § 22-7A and B but otherwise exempt from any other provision or application of this chapter:
A.
A person who engages in consumer financial services without charging
or collecting interest or other consideration for a transaction or
charges or collects nominal or incidental consideration.
B.
A vendor that receives less than $25,000 in any twelve-month period
from a licensee.
C.
A person who is a bank, savings bank, or savings and loan association
organized under the laws of the United States, or any other lender
to the Tribe or to a financial services licensee or debt collection
licensee.
D.
A person who provides financial services to a licensee and who is
licensed, registered, or otherwise subject to the regulatory supervision
and oversight of an agency of the United States in order to engage
in such financial services.
E.
A person licensed or otherwise authorized to engage in payment processing,
money transmission, tax preparation, or the practice of law.
F.
Any person providing solely preorigination services, including but
not limited to credit bureaus, lead generators, marketing companies,
or similar third-party service providers as identified by promulgated
regulation.
G.
Any other federal insured financial institution and any of their
subsidiaries;
H.
Menominee Indian Tribe of Wisconsin Department of Lending and Tribal
Tax;
I.
Any employee of the above.
A.
Compliance. Licensees shall at all times comply with the provisions
of this chapter, rules and regulations promulgated pursuant to this
chapter, and all other applicable Tribal, and federal laws as applicable.
B.
Federal consumer protection laws. A licensee shall conduct business
in a manner consistent with principles of federal consumer protection
law, including, without limitation, the following, as applicable:
Dodd-Frank Wall Street Reform and consumer Protection Act, 12 U.S.C.
§§ 5491-5493; Truth in Lending Act, 15 U.S.C. § 1601
et seq., and related regulations at 12 CFR Part 226; consumer Leasing
Act, 15 U.S.C. § 1667 et seq., and related regulations at
12 CFR Part 213; Fair Credit Billing Act, 15 U.S.C. § 1666a;
Equal Credit Opportunity Act, 15 U.S.C. § 1691 et seq.,
and related regulations at 15 CFR Part 202; Electronic Fund Transfer
Act, 15 U.S.C. § 1693 et seq., and related regulations at
12 CFR Part 205; Fair Credit Reporting Act, 15 U.S.C. § 1681
et seq., and related regulations at 12 CFR Part 222; privacy provisions
of Title V of the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801
et seq., and related regulations at 16 CFR Part 313 and 16 CFR Part
314; Fair Debt Collection Practices Act, 15 U.S.C. § 1692
et seq., and related regulations at 16 CFR Part 901; Talent Amendment,
10 U.S.C. § 987, and related regulations of the Department
of Defense at 32 CFR Part 232; Military Lending Act, 10 U.S.C. § 987;
and Service Members' Civil Relief Act, 50 U.S.C. App. §§ 501-596.
C.
Prohibited acts by licensees.
(1)
Unless otherwise exempt, a person shall not engage in the business
of consumer financial services or debt collection activities subject
to this chapter without first obtaining a license pursuant to this
chapter. A separate license is not required for each location that
the licensee operates and deals in person with the consumers, but
each location must be approved in advance by the Authority. The financial
services or debt collection licensee shall post its license issued
pursuant to this chapter at each location or, if the location is a
website, said license shall be posted electronically on each website.
For purposes of this section, the term "location" or "a location"
includes a website maintained for the purpose of participating in
consumer financial services or debt collection activities pursuant
to this chapter.
(2)
A licensee shall not:
(a)
Assess any interest, fee, or charge that is greater than any
applicable limitation, if any, prescribed in this chapter.
(b)
Use or cause to be published or disseminated any advertisement
that contains false, misleading or deceptive statements or representations.
(c)
Engage in unfair, deceptive or fraudulent practices.
(d)
Tie or otherwise condition the providing of consumer financial
services or debt collection activities to the sale of any good or
service by the licensee.
D.
E.
Books, accounts and records, examinations, costs.
(1)
Every financial services and debt collection licensee shall maintain
at each location at which it conducts business all books, accounts
and records that the Authority reasonably requires. Each financial
services and debt collection licensee shall:
(a)
Ensure that the books, accounts and records are sufficiently
detailed to comply with this chapter and all applicable tribal and
federal laws.
(b)
Maintain the books, accounts and records separately from any
other business in which the licensee is engaged and shall retain the
books, accounts and records for at least three years.
(2)
The Authority may examine or cause to be examined each financial
services and tribal debt collection licensee annually. In conducting
such examination, the Authority may examine the books, accounts and
records to determine if the financial services or tribal debt collection
licensee has complied with this chapter and any implementing regulations
adopted pursuant to this chapter. The financial services or tribal
debt collection licensee shall pay the cost of the examination as
may be required by the Authority in accordance with its regulations.
(3)
The books, accounts, and records kept by a licensee are tribal records,
and the examination, publication, and dissemination of any such books,
accounts, and records are governed by the provisions of this chapter
unless otherwise preempted by applicable tribal law.
F.
Audit requirements. The Authority may promulgate regulations to require
each financial services licensee and tribal debt collection licensee
to provide internal audits as well as other third-party audits deemed
necessary for the effective regulation of consumer financial services
and debt collection activities. Any such regulation shall detail the
content of each required audit and auditing standards.
G.
Public notice. Each financial services and debt collection licensee shall have a copy of this chapter and any implementing regulations readily available for inspection by any person at each authorized consumer financial services location. For purposes of this Subsection G, the term "location" includes a website maintained for the purpose of participating in consumer financial services or debt collection activities pursuant to this chapter.
A.
General authority. Subject to this chapter, a licensee may engage
in the business of providing tribal consumer financial services as
provided in this chapter.
B.
Revolving credit.
(1)
Applicability, exempted transactions. This section applies to revolving
lines of credit. This section does not apply to the following:
(2)
CONSUMER'S ACCOUNT
CREDITOR
DEPOSIT ACCOUNT
LOAN OR LOANS
OUTSTANDING UNPAID INDEBTEDNESS OR INDEBTEDNESS
PREPAID CARD
REVOLVING CREDIT PLAN OR PLAN
(a)
(b)
(c)
(d)
(e)
Definitions. In this section, unless the context otherwise requires:
An account established by a consumer with a creditor under
a revolving credit plan.
A financial service licensee issuing a loan to a consumer
under the laws of the Tribe and pursuant to this chapter.
A demand deposit account or a savings account established
at a financial institution by a consumer, or person acting on behalf
of or with authorization from the consumer, for the purpose of receiving
deposits of funds as more fully described in the agreement governing
the plan.
Cash advances or loans to be made from time to time pursuant
to the terms of the agreement governing the plan.
On any day an amount not in excess of the total amount of
loans charged to the consumer's account under the plan which
is outstanding and unpaid at the end of the day, after adding the
aggregate amount of any new loans charged to the consumer's account
as of that day and deducting the aggregate amount of any payments
and credits applied to that indebtedness as of any day and, if the
agreement providing the plan so provides, may include the amount of
any interest and additional charges, including late or delinquency
charges, which have accrued to the consumer's account and which
are unpaid at the end of the day. Loans may be included in outstanding
unpaid indebtedness as of such time as may be specified in the agreement
governing the plan.
A debit card or other access device, upon which the proceeds
of a loan issued pursuant to the terms of a revolving credit plan
are added and which is contemplated by the agreement governing the
plan.
A plan contemplating the extension of credit under an account
governed by an agreement between a creditor and a consumer pursuant
to which:
The creditor permits the consumer and, if the agreement governing
the plan so provides, persons acting on behalf of or with authorization
from the consumer, from time to time to obtain loans to be deposited
into the consumer's deposit account or to a prepaid card issued
in connection with the plan;
The amounts of such loans are charged to the consumer's
account;
The consumer is required to pay the creditor the amounts of
all loans charged to such consumer's account under the plan but
has the privilege of paying such amounts outstanding from time to
time in full or over time and can reborrow and repay in accordance
with the agreement governing the plan;
Interest may be charged and collected by the creditor from time
to time on the outstanding unpaid indebtedness under such plan; and
Fees may be charged and collected by the creditor from time
to time for loans, services, activity on the consumer's account,
or other privileges offered under the plan.
(3)
Extension of credit. Any creditor may offer and extend credit under
a revolving credit plan to a consumer and in connection therewith
may charge and collect the interest and other charges permitted by
this section as may be acceptable to the creditor.
(4)
Interest. A creditor may charge and collect interest under a revolving
credit plan on outstanding unpaid indebtedness in the consumer's
account under the plan at such daily, weekly, monthly, annual or other
periodic percentage rate or rates as the agreement governing the plan
provides or as established in the manner provided in the agreement
governing the plan subject to the maximum interest rate prescribed
herein.
(a)
Periodic interest may be calculated using any method provided
for under the plan. Periodic billing cycles may be established in
such manner and shall have such duration as may be specified in the
agreement governing the plan.
(b)
Maximum interest rate. No creditor may charge an interest rate
under the plan in which the scheduled finance charges exceed $50 per
$100 of principal per billing cycle. The finance charge may be calculated,
earned and scheduled for payment as agreed by the parties as long
as the finance charges as originally scheduled for payment do not
exceed the maximum allowable amount set forth herein.
(5)
Additional charges.
(a)
In addition to or in lieu of interest at a periodic percentage
rate or rates as provided in this chapter, a creditor may, if the
agreement governing the revolving credit plan so provides, charge
and collect any other fees or charges, costs, points, premiums and
all other expenses which may be assessed by the creditor in connection
with the plan. All such fees must be disclosed and approved pursuant
to the requirements of this chapter to consumers before any loan may
be issued to a consumer.
(b)
A consumer may pay the outstanding unpaid indebtedness charged
to the consumer's account under a plan in full at any time. A
creditor may not impose any prepayment charges in connection with
the payment of outstanding unpaid indebtedness in full by a consumer.
(6)
Delinquent installments. If the agreement governing a revolving credit plan so provides, a creditor may impose a late or delinquency charge upon any outstanding unpaid installment payments or portions thereof under the plan which are in default; provided, however, that no more than one such late or delinquency charge may be imposed in respect of any single such installment payment or portion thereof regardless of the period during which it remains in default; and provided further, however, that for the purpose only of the preceding provision all payments by the consumer shall be deemed to be applied to satisfaction of installment payments in the order in which they become due. Nothing contained in this section shall limit, restrict or otherwise affect the right of a creditor under and pursuant to Subsections C and D of this section to change the periodic percentage rate or rates of interest applicable to the revolving credit plan between the creditor and a consumer upon the occurrence of a delinquency or default or other failure of the consumer to perform in accordance with the terms of the plan.
(7)
Omitted installments. A creditor may at any time and from time to
time unilaterally extend to a consumer under a revolving credit plan
the option of omitting monthly installments. Any and all required
disclosures must be made to a consumer upon a change to the term of
any loan or plan.
(8)
Billing error resolution. A creditor shall comply with the requirements
of this chapter, currently in effect, regarding the resolution of
billing errors.
(9)
Attorneys' fees; costs. In the event a consumer defaults under
the terms of a plan, the creditor may, if the consumer's account
is referred to an attorney (not a regularly salaried employee of the
creditor) or to a third party for collection and if the agreement
governing the revolving credit plan so provides, charge and collect
from the consumer a reasonable attorneys' fee or the fee charged
by any third party to collect the amount due. In addition, following
a consumer's default, the creditor may, if the agreement governing
the plan so provides, recover from the consumer all court, alternative
dispute resolution or other collection costs (including, without limitation,
fees and charges of collection agencies) actually incurred by the
creditor.
(10)
Application of other laws. Any federal law not applicable to Indian
tribes or state law limiting the rate or amount of interest, discount,
points, finance charges, service charges or other charges which may
be charged, taken, collected, received or reserved shall not apply
to extensions of credit under a revolving credit plan operated in
accordance with this section.
C.
Consumer small-dollar loans.
(1)
Applicability, exempted transactions. This subsection applies to
small-dollar loans which are not secured by real property or a dwelling.
This subsection does not apply to the following:
(2)
BUSINESS DAY
CONSPICUOUSLY DISPLAYED
CREDITOR
EXTENSION OF CREDIT
LOAN
RIGHT OF RESCISSION
ROLLOVER
SHORT-TERM CONSUMER LOAN
SMALL DOLLAR CONSUMER LOAN
WORKOUT AGREEMENT
Definitions.
With respect to rescission as used in this Subsection C, all calendar days except Sundays and legal public holidays.
Highlighted through the use of capitalization, bold print,
underlining or some combination thereof.
A financial services licensee lending money under the laws
of the Tribe through this chapter.
Any creditor may, subject to any limitations imposed by this
chapter, offer and extend closed-end credit to a consumer and, in
connection therewith, may charge and collect the interest and other
charges permitted by this section.
Any single extension of credit, including short-term consumer
loans and Small Dollar consumer loans.
With respect to any short-term consumer loan, the right to
return any amount borrowed, in full, on or before the close of business
of the business day following the day on which such sum has been disbursed
or advanced without the incursion of any fee or other charges.
With respect to any short-term consumer loan, the extension
of an outstanding and unpaid indebtedness beyond the stated repayment
period solely on the basis of the payment of a fee without approval
of a new loan application.
A small-dollar loan for which the stated repayment period
is less than 60 days.
An unsecured loan in the amount of at least $50 but not more
than $5,000, excluding finance charges, fees and other charges permitted
in this chapter.
An agreement between an individual consumer and a creditor
for the repayment of an outstanding and unpaid indebtedness which
requires a net reduction of not less than 10% of such indebtedness
per payment period.
(3)
Interest. A creditor may charge and collect interest in respect of
a loan at such daily, weekly, monthly, annual or other periodic percentage
rate or rates as the agreement governing the loan provides subject
to the maximum allowable interest rate required by this chapter.
(4)
Maximum allowable interest rate. A creditor may not enter into a
loan transaction with a consumer in which the scheduled finance charges
exceed $50 per $100 of principal per installment period. The finance
charge may be calculated, earned and scheduled for payment as agreed
by the parties as long as the finance charges as originally scheduled
for payment do not exceed the maximum allowable amount set forth herein.
(5)
Variable rates. If the agreement governing the loan so provides,
the periodic percentage rate or rates of interest charged and collected
in respect of the loan may, if the interest is not precomputed and
taken in advance, vary in accordance with a schedule or formula. Such
periodic percentage rate or rates may vary from time to time as the
rate determined in accordance with such schedule or formula varies
and such periodic percentage rate or rates, as so varied, may be made
applicable to all or any part of outstanding unpaid amounts of such
loan on and after the effective date of such variation. This section
shall not be construed to limit the authority of a creditor to charge
and collect interest in respect of a loan in the manner and at the
rate or rates authorized in any other subsection of this section.
Without limitation, a permissible schedule or formula hereunder may
include provisions in the agreement governing the loan for a change
in the periodic percentage rate or rates of interest applicable to
all or any part of outstanding unpaid amounts whether by variation
of the then-applicable periodic percentage rate or rates of interest,
variation of an index or margin or otherwise, contingent upon the
happening of any event or circumstance specified in the loan agreement,
which event or circumstance may include the failure of the consumer
to perform in accordance with the terms of the loan agreement.
(6)
Additional charges. In addition to or in lieu of interest at a periodic
percentage rate or rates permitted by this section, the creditor may
charge and collect:
(a)
If the agreement governing the loan so provides, charge and
collect any other fees or charges, costs, points, premiums and all
other expenses which may be assessed by the creditor in connection
with the loan.
(b)
If the agreement governing a loan so provides, a creditor may
impose, as interest, a late or delinquency charge upon any outstanding
unpaid installment payments or portions thereof under the loan agreement
which are in default; provided, however, that no more than one such
delinquency charge may be imposed in respect of any single such installment
payment or portion thereof regardless of the period during which it
remains in default. Nothing contained in this section shall limit,
restrict or otherwise affect the right of a creditor under and pursuant
to this section to change the periodic percentage rate or rates of
interest applicable to the loan agreement between the creditor and
a consumer upon the occurrence of a delinquency or default or other
failure of the consumer to perform in accordance with the terms of
the loan agreement, provided that such changes and variances are disclosed
to and approved by the consumer;
(c)
Such other charges as are set forth in the agreement governing
the loan, including, but not limited to, costs, fees, services, points,
premiums and all other reasonable expenses which may be incurred by
such applicant in connection with a loan. No creditor shall demand,
collect or receive from any applicant for a loan, directly or indirectly,
any other charges, or any greater amounts for any authorized charges
than those permitted by this section.
(7)
Deferred installments. A creditor may at any time or from time to
time permit a consumer to defer installment payments of a loan and
may, in connection with such deferral, charge and collect deferral
charges and may also require payment by such consumer of the additional
cost to the creditor of premiums for continuing in force, until the
end of such period of deferral, any insurance coverage provided in
connection with the loan pursuant to this section.
(8)
Refinancing.
(a)
A consumer may, with the consent of the creditor, refinance
the entire outstanding and unpaid amount of a loan, and the creditor
may charge and collect a refinancing charge in connection with any
such refinancing.
(b)
For the purposes of this section, the entire outstanding and
unpaid amount of a loan shall be deemed to be the total of the unpaid
balance and the accrued and unpaid interest and charges on the date
of refinancing.
(c)
Number of loan transactions at one time. A creditor may enter
into no more than three loans with any consumer at any time.
(9)
Duration. A creditor may not provide loan transactions, whether short-term
consumer loans or Small Dollar consumer loans for a term of less than
three days or more than 48 months.
D.
Short-term consumer loans.
(1)
In addition to such other limitations and requirements as are imposed
pursuant to other provisions of this section, short-term consumer
loans shall be subject to the following:
(a)
No creditor shall make more than four rollovers of an existing
short-term consumer loan. After the fourth rollover, the creditor
must enter into a workout agreement with the consumer that allows
for the pay down of at least 5% of the principal of the loan per month
over a maximum forty-eight-month period or take such other actions
as are lawful to collect any outstanding and unpaid indebtedness.
(b)
No creditor shall make a short-term consumer loan unless such
loan is subject to a right of rescission on the part of the individual
consumer.
(c)
No creditor shall pursue or threaten to pursue criminal action
against an individual consumer in connection with the nonpayment of
any amount due, including the unpaid return of any check or automated
clearing-house transaction.
(d)
In addition to such other disclosure requirements as are imposed
pursuant to other provisions of this section, loans shall be subject
to the following: No creditor shall make a loan unless the application
for such loan contains a written disclosure, conspicuously displayed,
that:
(2)
Nothing in this section prohibits a creditor from refinancing the
principal amount of a loan, subject to the limitations and requirements
imposed herein.
(3)
Every loan provider must post, in plain view on all of its websites,
a schedule of fees and rates applicable to their loans, and a prominent
statement that: "A small-dollar consumer loan is not intended to meet
long-term financial needs."
(4)
Attorneys' fees; costs. In the event a consumer defaults under
the terms of a loan, the creditor may, if the consumer's account
is referred to an attorney (not a regularly salaried employee of the
creditor) or to a third party for collection and if the agreement
governing, or the bond, note or other evidence of, the loan so provides,
charge and collect from the consumer a reasonable attorneys'
fee. In addition, following a consumer's default, the creditor
may, if the agreement governing, or the bond, note or other evidence
of, the loan so provides, recover from the consumer all court, alternative
dispute resolution or other collection costs (including, without limitation,
fees and charges of collection agencies) actually incurred by the
creditor.
(5)
Application of other laws. Any federal law not applicable to Indian
tribes or state law limiting the rate or amount of interest, discount,
points, finance charges, service charges or other charges which may
be charged, taken, collected, received or reserved shall not apply
to extensions of credit under a loan operated in accordance with this
section.
(6)
No oral agreements. A consumer financial services transaction may
provide that it represents the entire agreement of the parties and
may not be contradicted by evidence of prior, contemporaneous, or
subsequent oral agreements of the parties. Such provisions are enforceable
and disallow evidence of oral agreements.
(7)
Enforcement of creditor's rights and remedies. In any proceeding
in which a licensee is a party in interest with respect to any transactions
with a consumer, the licensee's rights and remedies shall be
granted based upon prima facie proof and entitlement based upon the
terms of the written transaction documents and the payment and business
records maintained by the licensee in the ordinary course of business.
E.
Debt collection activities authorized; certain acts prohibited.
(1)
The Tribe hereby authorizes debt collection activities conducted
by any tribal debt collection licensee that is a duly formed, tribally
owned entity or instrumentality or any debt collection licensee, provided
such debt collection activities are, at all times, conducted within
the bounds of applicable tribal and federal law.
(2)
Collection efforts. This chapter allows for debt collection activities
as such pertain to consumer lending, both lending by the Tribe, its
economic arms and instrumentalities, and others who issue debt available
for purchase. The Tribe, through its duly formed, tribally owned entity
or instrumentation may endeavor to engage in debt collection activities.
The following activities are expressly prohibited:
(3)
Prohibited acts. In addition to other civil and criminal acts that
may be regulated or prohibited by this chapter, other tribal law or
applicable federal law, the following shall constitute prohibited
activities and unauthorized debt collection under this chapter and
shall subject any perpetrator to action, including, but not limited
to, the imposition of civil penalties and referral to appropriate
law enforcement authorities for criminal proceedings:
(a)
Altering or misrepresenting debt collection documents;
(b)
Defrauding the Tribe, any duly formed, tribally owned entity
or instrumentality, or consumer;
(c)
Participating in any debt collection activities not authorized
by this chapter;
(d)
Knowingly providing false or misleading information, making
any false or misleading statement, or failing to disclose a material
fact to the Tribe, any duly formed, tribally owned entity or instrumentality,
or its agents in connection with any contract for services or property
related to debt collection activities;
(e)
Falsifying, destroying, erasing or altering any books, computer
data, records, or any other information related to debt collection
activities; and
(f)
Misappropriating confidential information.
A.
Jurisdiction. Except as provided otherwise in this chapter, the Authority
shall have jurisdiction over all violations of this chapter.
B.
Civil violations. Any licensee or person who violates or fails to comply with any provision of this chapter or who fails or neglects to comply with any final order of the Authority may be charged with a violation and given due process pursuant to § 22-4R.
C.
Civil fines. Any licensee or person who is found to have committed
a violation may be required to pay a civil fine to the Authority not
to exceed $5,000 for each violation. Each day during which any such
violation or failure to comply continues may be treated as a separate
violation of this chapter; however, the penalty shall not exceed $100,000.
A violation or series of violations related to the same act or omission
may be treated as one violation.
D.
Cumulative fines. All civil fines accruing under this chapter shall
be cumulative, and a suit for the recovery of one fine shall not bar
or affect the recovery of any other fine, or judgment, penalty, forfeiture
or damages nor bar the power of a court of competent jurisdiction
to enter an order of contempt, nor bar any criminal prosecution against
any officer, director, agent, or employee of any licensee, or any
other person.
E.
Purpose of civil penalties. The civil fines imposed under this chapter
are intended to be remedial and not punitive and are designed to compensate
the Tribe for the damage done to the peace, security, economy and
general welfare of the Tribe, and to compensate the Tribe for costs
incurred by the Tribe in enforcing this chapter. The civil fines under
this chapter are also intended to coerce all people into complying
with this chapter and Authority regulations and not to punish such
people for violation of such laws and regulations.
F.
Guidelines. In imposing any administrative remedy or civil penalty
provided for in this chapter, the Authority shall take into account
the appropriateness of the remedy or penalty with respect to the size
of the financial resources and good faith of the financial services
licensee or debt collection licensee charged, the extent to which
the violation was intentional, the gravity of the violation, the history
or previous violations, and such other matters as justice may require.
G.
Civil action for penalties. In enforcing the civil infraction provisions
of this chapter, the Authority may proceed, in the name of the Tribe,
against a person for violation of such provision by civil complaint
in a court of competent jurisdiction pursuant to the provisions of
this chapter.
H.
Seizure and forfeiture of property. Property utilized in violation
of this chapter shall be subject to seizure and forfeiture by order
of the Authority pursuant to such implementing regulations as the
Authority shall promulgate.
A.
General principles. The Tribe values its customers and intends, at
all times, to see that questions, concerns, issues, and/or disputes
raised by consumers are addressed in a fair and orderly manner. However,
nothing in this section shall be construed as a waiver of the Tribe's
or the financial services licensee's or tribal debt collection
licensee's sovereign immunity or any of the rights and privileges
attendant thereto.
B.
Initial dispute resolution procedure.
(1)
Consumers who, in the course of their otherwise lawful and proper
use of a licensee's business, have concerns about the operation
of any part of the licensee's operation that pertain to the consumer
or who otherwise believe themselves to be aggrieved by some aspect
of the operation of any part of the licensee's business, shall
direct their concerns or dispute in the first instance to the management
of the licensee, either orally or in writing.
(2)
The licensee shall also expediently gather sufficient facts to make a determination about the dispute. The licensee shall inform the complainant, either orally or in writing, about its initial determination as soon as is reasonably practicable. If the consumer concern or dispute is unresolved through the initial dispute resolution procedure, then a licensee shall notify the consumer in writing of his or her right to contact the Authority about the dispute and his or her rights to pursue formal dispute resolution under Subsection C of this section.
C.
Formal dispute resolution procedure.
(1)
In the event of a consumer dispute, complainants who have followed the initial dispute resolution procedure described in Subsection B and who are dissatisfied with a licensee's initial determination, may request review of the initial determination by the licensee by submitting a request to the Authority in writing no later than 90 days after being informed about the initial determination by the licensee. The consumer's written request must include the following information:
(a)
The consumer's full name, as it appears on the consumer's
loan contract, as well as the consumer's address, email address,
and phone number.
(b)
A copy of the consumer's loan agreement, or otherwise identify
the loan agreement.
(c)
A copy of the licensee's determination.
(d)
A written request that summarizes with specificity the events
and circumstances giving rise to the alleged wrongful action or inaction
of the financial services licensee or tribal debt collection licensee
and the relief requested.
(e)
A statement requesting a review hearing before the Authority.
If a hearing is requested, the consumer must indicate whether he will
appear personally or if he would prefer to appear by telephone. The
consumer must also indicate whether he will be represented by an attorney
or if he will represent himself.
(f)
Any other information the consumer feels may be relevant to
the complaint or that may assist the Authority evaluate the complaint.
(2)
The Authority shall investigate the dispute in any manner it chooses.
The Authority may offer the complainant a fair opportunity to be heard
regarding the dispute, in person or through telephonic conference,
either before or after the Authority makes its own inquiries.
(3)
A complainant may be represented by legal counsel at the consumer's
own expense. The complainant's opportunity to be heard, if granted,
shall take place, except as determined by the Authority, no less than
10 days and no more than 60 days after the Authority receives the
complainant's written request.
(4)
In connection with a dispute, the Authority may conduct and issue
such review, interviews, sworn statements, depositions, and other
discovery as the Authority requests. In each instance, the licensee,
complainant and other interested persons must cooperate with the Authority
and provide such information and documents as the Authority deems
necessary or advisable to make a determination.
(5)
After reviewing and/or investigating (if the Authority chooses),
and within 30 days after affording the complainant an opportunity
to be heard, the Authority shall issue a written opinion on the complainant's
written request for review, and shall mail a copy of the opinion to
the complainant at his or her last known address.
(6)
The Authority shall consider all applicable tribal and federal law
in its opinion.
(7)
The Authority may grant or deny a consumer complaint and grant or
deny such relief, if any, as the Authority determines in its sovereign
discretion. The opinion shall inform the complainant that he or she
may appeal the Authority's decision as set forth in this section.
(8)
A complainant may appeal an Authority opinion by filing a written
appeal to the Tribal Court within 20 days of receiving the Authority's
final written decision in accordance with current rules of court and
procedure of the Menominee Tribal Court. A Tribal Court review of
any Authority opinion shall consider any applicable tribal and federal
law and regulation.
(9)
The tribal dispute resolution process authorized under this chapter
is considered by the Tribe to constitute a petition for redress submitted
to a sovereign government, without waiver of sovereign immunity or
exclusive jurisdiction, and does not create any binding procedural
or substantive rights for a complainant.
