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State Laws
Kansas Consumer Credit Code
Part 1 POWERS AND FUNCTIONS OF ADMINISTRATOR
Part 2 NOTIFICATION AND FEES
Part 3 COUNCIL OF ADVISORS ON CONSUMER CREDIT
Part 4 ADMINISTRATIVE PROCEDURE AND JUDICIAL REVIEW
Part 1 POWERS AND FUNCTIONS OF ADMINISTRATOR
This article shall be known and may be cited as revised uniform consumer credit code--administration.
This part applies to persons who in this state (1) make or solicit consumer credit transactions; or
(2) directly collect payments from or enforce rights against consumers arising from consumer credit transactions, wherever they are made.
History: L. 1973, ch. 85, § 96; Repealed, L. 1988, ch. 85, § 13; July 1.
This act shall be administered by the consumer credit commissioner of Kansas who is also referred to as the administrator. (1) In addition to other powers granted by this act, the administrator within the limitations provided by law may:
(a) Receive and act on complaints, take action designed to obtain voluntary compliance with the provisions of K.S.A. 16a-1-101 to 16a-9-102, inclusive, and amendments thereto, or commence proceedings on the administrator's own initiative;
(b) counsel persons and groups on their rights and duties under K.S.A. 16a-1-101 to 16a-9-102, inclusive, and amendments thereto;
(c) establish programs for the education of consumers with respect to credit practices and problems and as a condition in settlements of investigations or examinations, the administrator may receive a payment designated for consumer education to be expended as directed by the administrator for such purpose;
(d) make studies appropriate to effectuate the purposes and policies of K.S.A. 16a-1-101 to 16a-9-102, inclusive, and amendments thereto;
(e) adopt, amend and revoke rules and regulations to carry out the specific provisions of K.S.A. 16a-1-101 to 16a-9-102, inclusive, and amendments thereto;
(f) issue, amend and revoke written administrative interpretations. Such written administrative interpretations shall be approved by the attorney general and published in the Kansas register within 15 days of issuance. The administrator shall annually publish all written administrative interpretations in effect;
(g) maintain offices within this state; and
(h) appoint any necessary attorneys, hearing examiners, clerks, and other employees and agents and fix their compensation, and authorize attorneys appointed under this section to appear for and represent the administrator in court;
(i) examine periodically at intervals the administrator deems appropriate the loans, business and records of every licensee or person filing notification pursuant to K.S.A. 16a-6-201 through 16a-6-203, and amendments thereto, except licensees which are supervised financial organizations. The official or agency responsible for the supervision of each supervised financial organization shall examine the loans, business and records of each such organization in the manner and periodically at intervals prescribed by the administrator. In addition, for the purpose of discovering violations of K.S.A. 16a-1-101 through 16a-9-102, and amendments thereto, or securing information lawfully required, the administrator or the official or agency to whose supervision the organization is subject to K.S.A. 16a-6-105, and amendments thereto, may at any time investigate the loans, business and records of any supervised lender. For examination purposes the administrator shall have free and reasonable access to the offices, places of business and records of the lender or person filing notification;
(j) refer such evidence as may be available concerning violations of this act or of any rule and regulation or order to the attorney general or the proper county or district attorney, who may in the prosecutor's discretion, with or without such a reference, institute the appropriate criminal proceedings under this act. Upon receipt of such reference, the attorney general or the county attorney or district attorney may request that a duly employed attorney of the administrator prosecute or assist in the prosecution of such violation on behalf of the state. Upon approval of the administrator, such employee shall be appointed special prosecutor for the attorney general or the county attorney or district attorney to serve without compensation from the attorney general or the county attorney or district attorney. Such special prosecutor shall have all the powers and duties prescribed by law for assistant attorneys general or assistant county or district attorneys, and such other powers and duties as are lawfully delegated to such special prosecutors by the attorney general or the county attorney or district attorney; and
(k) if deemed necessary by the administrator, require fingerprinting of any applicant, licensee, members thereof if a copartnership or association, or officers and directors thereof if a corporation, or any agent or other person acting on their behalf who is directly engaged in lending activities. The administrator, or the administrator's designee, may submit such fingerprints to the Kansas bureau of investigation, federal bureau of investigation, or other law enforcement agency for the purposes of verifying the identity of such persons and obtaining records of their criminal arrests and convictions.
(2) The administrator shall enforce the provisions of this act and the rules and regulations and interpretations adopted thereunder with respect to a creditor, unless the creditor's compliance is regulated exclusively or primarily by another state or federal agency.
(3) To keep the administrator's rules and regulations in harmony with the rules of administrators in other jurisdictions which enact the revised uniform consumer credit code, the administrator, so far as is consistent with the purposes, policies and provisions of K.S.A. 16a-1-101 to 16a-9-102, inclusive, and amendments thereto, may:
(a) Before adopting, amending and revoking rules and regulations, advise and consult with administrators in other jurisdictions which enact the uniform consumer credit code; and
(b) in adopting, amending and revoking rules and regulations, take into consideration the rules of administrators in other jurisdictions which enact the revised uniform consumer credit code.
(4) Except for refund of an excess charge, no liability is imposed under K.S.A. 16a-1-101 to 16a-9-102, inclusive, and amendments thereto, for an act done or omitted in conformity with a rule and regulation or written administrative interpretation of the administrator in effect at the time of the act or omission notwithstanding that after the act or omission the rule and regulation or written administrative interpretation may be determined by judicial or other authority to be invalid for any reason.
(5) The administrator prior to December 1 of each year shall establish such fees as are authorized under the provisions of K.S.A. 16a-1-101 to 16a-9-102, inclusive, and amendments thereto, for the ensuing calendar year in such amounts as the administrator may determine to be sufficient to meet the budget requirements of the administrator for each fiscal year.
(1) With respect to supervised financial organizations, the powers of examination and investigation (K.S.A. 16a-2-305 and K.S.A. 16a-6-106, and amendments thereto) and administrative enforcement (K.S.A. 16a-6-108, and amendments thereto) shall be exercised by the official or agency to whose supervision the organization is subject. Should a supervised financial organization become licensed hereunder, a report of that portion of each examination made by the supervisory official or agency of such organization relating to compliance with the provisions of chapter 16a of the Kansas Statutes Annotated shall be filed with the administrator. All other powers of the administrator under this act may be exercised by the administrator with respect to a supervised financial organization except that compliance with truth in lending shall be governed as set forth in subsection (2) of K.S.A. 16a-6-104, and amendments thereto.
(2) If the administrator receives a complaint or other information concerning noncompliance with this act by a supervised financial organization, the administrator shall inform the official or agency having supervisory authority over the organization concerned. The administrator may request information about supervised financial organizations from the officials or agencies supervising them. If such officials or agencies have cause to believe the licensee of any supervised financial organization subject to their supervision is subject to suspension or revocation for any reason stated in K.S.A. 16a-2-303, and amendments thereto, such official or agency shall notify the administrator and assist the administrator in the enforcement of this act.
(3) The administrator and any official or agency of this state having supervisory authority over a supervised financial organization are authorized and directed to consult and assist one another in maintaining compliance with the provisions of K.S.A. 16a-1-101 through 16a-9-102, and amendments thereto. They may jointly pursue investigations, prosecute suits, and take other official action, as they deem appropriate, if either of them otherwise is empowered to take the action.
(1) The administrator may:
(a) Conduct public or private examinations or investigations within or outside of this state as necessary to determine whether any license should be granted, denied or revoked or whether any person has violated or is about to violate any provision of this act or any rule and regulation, administrative interpretation, or order hereunder, or to aid in the enforcement of this act or in the prescribing of forms or adoption of rules and regulations;
(b) require or permit any person to file a statement in writing, under oath or otherwise as the administrator determines, of all the facts and circumstances concerning any violation of this act or any rule and regulation, administrative interpretation or order hereunder.
(2) For the purpose of any examination, investigation or proceeding under this act, the administrator or any officer designated by the administrator may administer oaths and affirmations, subpoena witnesses, compel such witnesses' attendance, adduce evidence and require the production of any matter which is relevant to the examination or investigation, including the existence, description, nature, custody, condition and location of any books, documents or other tangible things and the identity and location of persons having knowledge of relevant facts, or any other matter reasonably calculated to lead to the discovery of relevant information or items.
(3) In case of contumacy by, or refusal to obey a subpoena issued to any person, any court of competent jurisdiction, upon application by the administrator, may issue to that person an order requiring the person to appear before the administrator, or the officer designated by the administrator, there, to produce documentary evidence if so ordered or to give evidence touching the matter under investigation or in question. Any failure to obey the order of the court may be punished by the court as a contempt of court.
(4) No person is excused from attending and testifying or from producing any document or record before the administrator or in obedience to the subpoena of the administrator or any officer designated by the the administrator or in any proceeding instituted by the administrator, on the ground that the testimony or evidence (documentary or otherwise) required of the person may tend to incriminate the person or subject the person to a penalty or forfeiture. No individual may be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which such person is compelled, after claiming privilege against self-incrimination, to testify or produce evidence (documentary or otherwise), except that the individual so testifying shall not be exempt from prosecution and punishment for perjury committed in so testifying.
(5) The administrator may issue and apply to enforce subpoenas in this state at the request of a consumer code administrator of another state if the activities constituting an alleged violation for which the information is sought would be a violation of the Kansas consumer credit code if the activities had occurred in this state.
(6) If the person's records are located outside this state, the person shall either make them available to the administrator at a convenient location within this state or, at the administrator's discretion, pay the reasonable and necessary expenses for the administrator or such administrator's representative to examine them at the place where they are maintained. The administrator may designate representatives, including comparable officials of the state in which the records are located, to inspect the records on the administrator's behalf.
(7) The administrator may charge as costs of investigation or examination all reasonable expenses, including a per diem and actual travel and lodging expenses to be paid by the party or parties under investigation or examination. The administrator may maintain an action in any court to recover such costs.
History: L. 1973, ch. 85, § 100; Repealed, L. 1999, ch. 107, § 34; July 1.
(1) If the administrator determines after notice and opportunity for a hearing that any person has engaged, is engaging or is about to engage in any act or practice constituting a violation of any provision of this act or any rule and regulation, order or administrative interpretation hereunder, the administrator by order may require that such person cease and desist from the unlawful act or practice and take such affirmative action as in the judgment of the administrator will carry out the purposes of this act.
(2) If the administrator makes written findings of fact that the public interest will be irreparably harmed by delay in issuing an order under subsection (1), the administrator may issue an emergency cease and desist order. Such order shall be subject to the same procedures as an emergency order issued under K.S.A. 77-536, and amendments thereto. Upon the entry of such an order the administrator shall promptly notify the person subject to the order that it has been entered, of the reasons and that upon written request the matter will be set for a hearing which shall be conducted in accordance with the provisions of the Kansas administrative procedure act. If no hearing is requested and none is ordered by the administrator, the order will remain in effect until it is modified or vacated by the administrator. If a hearing is requested or ordered, the administrator, after notice of and opportunity for hearing to the person subject to the order, shall by written findings of fact and conclusion of law vacate, modify or make permanent the order.
(3) If the administrator reasonably believes that a person has violated this act or a rule and regulation, order or administrative interpretation of the administrator under this act, the administrator, in addition to any specific power granted under this act, after notice and hearing in an administrative proceeding, unless the right to notice and hearing is waived by the person against whom the sanction is imposed, may require any or all of the following:
(a) Censure the person if the person is licensed under this act;
(b) issue an order against an applicant, licensed person or other person who knowingly violates this act or a rule and regulation, order or administrative interpretation of the administrator under this act, imposing a civil penalty up to a maximum of $5,000 for each violation. If any person is found to have knowingly or willfully violated any provision of this act, and such violation is committed against elder or disabled persons, as defined in K.S.A. 50-676, and amendments thereto, in addition to any civil penalty otherwise provided by law, the administrator may impose an additional penalty not to exceed $5,000 for each such violation;
(c) revoke or suspend the person's license or bar the person from subsequently applying for a license under this act; or
(d) issue an order requiring the person to pay restitution for any loss arising from the violation or requiring the person to disgorge any profits arising from the violation. Such order may include the assessment of interest not to exceed 8% per annum from the date of the violation.
(4) Any person aggrieved by a final order of the administrator may obtain a review of the order in accordance with the provisions of the act for judicial review and civil enforcement of agency actions.
If it is claimed that a person has engaged in conduct subject to an order by the administrator (section 16a-6-108) or by a court (sections 16a-6-110 through 16a-6-112), the administrator may accept an assurance in writing that the person will not engage in the conduct in the future. If a person giving an assurance of discontinuance fails to comply with its terms, the assurance is evidence that prior to the assurance he engaged in the conduct described in the assurance.
< class="name" name="110">16a-6-110. (UCCC) Injunctions against violations of act.
The administrator may bring a civil action to restrain a person from violating the provisions of K.S.A. 16a-1-101 through 16a-9-102 and for other appropriate relief.
(1) The administrator may bring a civil action to restrain a creditor or a person acting in his behalf from engaging in a course of
(a) making or enforcing unconscionable terms or provisions of consumer credit transactions;
(b) fraudulent or unconscionable conduct in inducing consumers to enter into consumer credit transactions.
(2) In an action brought pursuant to this section the court may grant relief only if the trier of the fact finds
(a) that the respondent has made unconscionable agreements or has engaged or is likely to engage in a course of fraudulent or unconscionable conduct;
(b) that the agreements or conduct of the respondent has caused or is likely to cause injury to consumers; and
(c) that the respondent has been able to cause or will be able to cause the injury primarily because the transactions involved are credit transactions.
(3) In applying this section, consideration shall be given to each of the following factors, among others:
(a) Belief by the creditor at the time consumer credit transactions are entered into that there was no reasonable probability of payment in full of the obligation by the consumer;
(b) in the case of consumer credit sales or consumer leases, knowledge by the seller or lessor at the time of the sale or lease of the inability of the buyer or lessee to receive substantial benefits from the property or services sold or leased;
(c) in the case of consumer credit sales or consumer leases, gross disparity between the price of the property or services sold or leased and the value of the property or services measured by the price at which similar property or services are readily obtainable in credit transactions by like buyers or lessees;
(d) the fact that the creditor contracted for or received separate charges for insurance with respect to consumer credit sales or consumer loans with the effect of making the sales or loans, considered as a whole, unconscionable; and
(e) the fact that the respondent has knowingly taken advantage of the inability of the consumer reasonably to protect his interests by reason of physical or mental infirmities, ignorance, illiteracy or inability to understand the language of the agreement, or similar factors.
(4) In an action brought pursuant to this section, a charge or practice expressly permitted by this act is not in itself unconscionable.
With respect to an action brought to enjoin violations of K.S.A. 16a-1-101 through 16a-9-102 (section 16a-6-110) or unconscionable agreements or fraudulent or unconscionable conduct (section 16a-6-111), the administrator may apply to the court for appropriate temporary relief against a respondent, pending final determination of proceedings. If the court finds after a hearing held upon notice to the respondent that there is reasonable cause to believe that the respondent is engaging in or is likely to engage in conduct sought to be restrained, it may grant any temporary relief or restraining order it deems appropriate.
(1) After demand, the administrator may bring a civil action against a creditor for all amounts of money, other than penalties, which a consumer or class of consumers has a right explicitly granted by the provisions of K.S.A. 16a-1-101 through 16a-9-102 to recover. The court shall order amounts recovered or recoverable under this subsection paid to each consumer or set off against his obligation. A consumer's action, other than a class action, takes precedence over a prior or subsequent action by the administrator with respect to the claim of that consumer. A consumer's class action takes precedence over a subsequent action by the administrator with respect to claims common to both actions but intervention by the administrator is authorized. An administrator's action on behalf of a class of consumers takes precedence over a consumer's subsequent class action with respect to claims common to both actions. When an action takes precedence over another action under this subsection, to the extent appropriate the other action may be stayed while the precedent action is pending and dismissed if the precedent action is dismissed with prejudice or results in a final judgment granting or denying the claim asserted in the precedent action.
(2) The administrator may bring a civil action against a creditor or a person acting in his behalf to recover a civil penalty for willfully violating this act, and if the court finds that the defendant has engaged in a course of repeated and willful violations of this act, it may assess a civil penalty of no more than five thousand dollars ($5,000). Any civil action under this subsection shall be brought within two (2) years following the violation.
The grant of powers to the administrator in this article does not affect remedies available to consumers under K.S.A. 16a-1-101 through 16a-9-102 or under other principles of law or equity.
The administrator may bring actions or proceedings in a court in a county in which an act on which the action or proceeding is based occurred or in a county in which respondent resides or transacts business.
The administrator shall adopt rules and regulations necessary to carry out the provisions and terms of the uniform consumer credit code which are consistent with or no less restrictive than the truth-in-lending act, which is contained in title I of the consumer credit protection act, 15 U.S.C. § 1601 et seq. and regulation Z, 12 C.F.R. § 226 et seq., as amended.
This part applies to a creditor engaged in this state in entering into consumer credit transactions and to any person who takes assignments of and undertakes direct collection of payments from or enforcement of rights against debtors arising from these transactions. This part shall not apply to supervised financial organizations (K.S.A. 16a-1-301, and amendments thereto). Nothing in this section shall be construed to require the payment of any fees required by this article by attorneys or collection agencies who receive the same for collection purposes.
(1) Persons subject to this part shall file notification with the administrator within 30 days after commencing business in this state, and, thereafter, in accordance with rules and regulations adopted by the administrator.
(2) If information in a notification becomes inaccurate after filing, the person filing the notification shall file a corrected or amended notification in such form and at such time as prescribed by rules and regulations adopted by the administrator.
(1) A person required to file notification shall on or before April 30 of each year pay to the administrator an annual fee in an amount established pursuant to subsection (5) of K.S.A. 16a-6-104, and amendments thereto, for each business location for that year.
(2) Persons required to file notification who are sellers, lessors or lenders shall pay an additional fee at the time and in the manner stated in subsection (1), in an amount established pursuant to subsection (5) of K.S.A. 16a-6-104, and amendments thereto, for each business location for each $100,000, or part thereof which exceeds $10,000 and which is above the first $100,000, of the average unpaid balances, including unpaid scheduled periodic payments under consumer leases, arising from consumer credit transactions entered into in this state and held on the last day of each calendar month during the preceding calendar year and held either by the seller, lessor or lender, or by the immediate or a remote assignee other than a supervised financial organization who has not filed notification. The unpaid balances of assigned obligations held by an assignee other than a supervised financial organization who has not filed notification are presumed to be the unpaid balances of the assigned obligations at the time of their assignment by the seller, lessor or lender.
(3) Persons required to file notification who are assignees shall pay an additional fee at the time and in the manner stated in subsection (1), in an amount established pursuant to subsection (5) of K.S.A. 16a-6-104, and amendments thereto, for each $100,000, or part thereof which exceeds $10,000, of the average unpaid balances, including unpaid scheduled periodic payments payable by lessees, arising from consumer credit transactions entered into in this state taken by assignment and held on the last day of each calendar month during the preceding calendar year.
History: L. 1973, ch. 85, § 112; Repealed, L. 1999, ch. 107, § 34; July 1.
Part 3 COUNCIL OF ADVISORS ON CONSUMER CREDIT
History: L. 1973, ch. 85, § 113; L. 1974, ch. 348, § 101; L. 1975, ch. 416, § 28; L. 1978, ch. 308, § 43; Repealed, L. 1981, ch. 299, § 64; L. 1981, ch. 96, § 1; July 1.
History: L. 1973, ch. 85, §§ 114, 115; Repealed, L. 1989, ch. 74, § 1; July 1.
Part 4 ADMINISTRATIVE PROCEDURE AND JUDICIAL REVIEW
This part applies to the administrator, prescribes the procedures to be observed by him in exercising his powers under K.S.A. 16a-1-101 through 16a-9-102, and supplements the provisions of the part on powers and functions of administrator (part 1) of this article and of the part on supervised lenders (part 3) of the article on finance charges and related provisions (article 2).
In this part:
(1) "Contested case" means a proceeding, including but not restricted to one pursuant to the provisions on administrative enforcement orders (subsection (a) of K.S.A. 16a-6-108 and amendments thereto) and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by the administrator after an opportunity for hearing.
(2) "License" means a license authorizing a person to make supervised loans pursuant to the provisions on authority to make supervised loans ( K.S.A. 16a-2-301 and amendments thereto).
(3) "Licensing" includes the administrator's process respecting the grant, denial, revocation, suspension, annulment, withdrawal, or amendment of a license.
(4) "Rule" means each rule specifically authorized by this act that applies generally and implements, interprets or prescribes law or policy, or each statement by the administrator that applies generally and describes the administrator's procedure or practice requirements or the organization of the administrator's office. The term includes the amendment or repeal of a prior rule but does not include:
(a) statements concerning only the internal management of the administrator's office and not affecting private rights or procedures available to the public;
(b) declaratory rulings issued pursuant to the provisions on declaratory rulings by administrator (K.S.A. 16a-6-409 and amendments thereto); or
(c) intra-office memoranda.
(1) In addition to other rule-making requirements imposed by law, the administrator may:
(a) Adopt as a rule a description of the organization of the administrator's office, stating the general course and method of the operations of the office and the methods whereby the public may obtain information or make submissions or requests;
(b) adopt rules of practice setting forth the nature and requirements of all formal and informal procedures available, including a description of all forms and instructions used by the administrator or by the office;
(c) make available for public inspection all rules and all other written statements of policy or interpretations formulated, adopted or used by the administrator;
(d) make available for public inspection all final orders, decisions and opinions.
(2) No rule, order or decision of the administrator is valid or effective against any person or party, nor may it be invoked by the administrator for any purpose, until it has been made available for public inspection as herein required. This provision is not applicable in favor of any person or party who has actual knowledge thereof.
(1) Prior to the adoption, amendment, or repeal of any rule, the administrator shall submit such proposed rule, amendment or revocation to the attorney general for his examination and approval and shall give notice and hold a hearing thereon in the manner required by article 4 of chapter 77 of the Kansas Statutes Annotated and amendments thereto.
(1) Every rule and regulation or amendment or revocation thereof shall be filed by the administrator in the office of the secretary of state in the manner provided by article 4 of chapter 77 of the Kansas Statutes Annotated and amendments thereto.
(2) Each rule and regulation or amendment or revocation thereof shall take effect at times prescribed under the provisions of article 4 of chapter 77 of the Kansas Statutes Annotated and amendments thereto.
The secretary of state shall publish all rules and regulations filed under the provisions of this act subject to and in the manner provided for the publication of rules and regulations under the provisions of article 4 of chapter 77 of the Kansas Statutes Annotated and amendments thereto.
An interested person may petition the administrator requesting the promulgation, amendment or repeal of a rule. The administrator may prescribe by rule the form for petitions and the procedure for their submission, consideration and disposition. Within 30 days after submission of a petition the administrator either shall deny the petition in writing (stating the reasons for the denials) or shall initiate rule-making proceedings in accordance with the provisions on procedure for adoption of rules set forth in K.S.A 16a-6-404.
The validity or applicability of a rule may be determined in an action for declaratory judgment in the manner prescribed by K.S.A. 77-434 and amendments thereto.
The administrator shall provide by rule for the filing and prompt disposition of petitions or declaratory rulings as to the applicability of any statutory provision or of any rule of the administrator. Rulings disposing of petitions have the same status as decisions or orders in contested cases.
(1) In a contested case, all parties shall be afforded an opportunity for hearing after reasonable notice. Orders in contested cases, and proceedings thereon, shall be subject to the provisions of the Kansas administrative procedure act.
(2) Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, or consent order.
History: L. 1973, ch. 85, §§ 126, 127; Repealed, L. 1988, ch. 356, § 361; July 1, 1989.
(1) When the grant or denial of a license is required to be preceded by notice and opportunity for hearing, the provisions of this part concerning contested cases apply.
(2) No revocation, suspension, annulment, or withdrawal of a license is lawful unless, prior to the institution of proceedings by the administrator, he gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license.
Any action of the administrator pursuant to the uniform consumer credit code is subject to review in accordance with the act for judicial review and civil enforcement of agency actions. This section does not limit utilization of or the scope of judicial review available under other means of review, redress, relief or trial de novo provided by law. A preliminary, procedural or intermediate action or ruling of the administrator is immediately reviewable if review of the final decision of the administrator would not provide an adequate remedy.
KS Kansas Official State Statutes
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