Introduction
The Service developed its position on credit counseling agencies in the 1960s. If an agency primarily provided information, exemption under IRC 501(c)(3) was considered appropriate. The need to review this subject stems from recent concern that certain organizations, describing themselves as educational credit counseling agencies, may be engaged in activities that are not described in IRC 501(c)(3).
This article discusses both credit counseling agencies and credit repair organizations.
- A credit counseling agency educates the consumer as its principal activity. It may also assist the consumer in consolidating debt and negotiate between debtors and creditors to lower interest rates and waive late and over-limit fees.
Credit repair involves claims that the agency can restore credit in a short period of time. Certain credit repair practices are illegal. The states' attorneys general warn that restoring credit is a lengthy procedure, and claims to do it quickly may involve identity theft and other illegal practices.
The federal statutory scheme and that of many states and private certifying organizations rely on the Service's determination that an organization is exempt under IRC 501(c)(3). If an organization can demonstrate that it is exempt under IRC 501(c)(3), it usually avoids all regulatory requirements.
Because the Service's determination of exemption is central to both federal and state regulatory enforcement programs, the determination specialist must examine applications for exemption with a heightened awareness. The following discussion and the development questions are designed to review the published guidance in light of changes in the field of credit counseling and credit repair.
Federal Legislation
The Federal Trade Commission enforces at least two statutes that apply to the activities of credit counseling and credit repair organizations.
Bankruptcy reform legislation was proposed in 2002 and remains a concern of Congress. Under the proposals that were considered, the role of credit counseling organizations in the bankruptcy process would be significantly enhanced.
The Credit Repair Organizations Act
Introduction
Congress has taken steps to protect citizens against the worst of the credit repair scams in the Credit Repair Organizations Act, [15 U.S.C. §§ 1679 et seq.] The Act seeks to ensure that prospective buyers of credit repair services are provided with the information necessary to make an informed decision, and to protect the public from unfair or deceptive advertising and business practices by credit repair organizations.
Definition of a Credit Repair Organization
The Act defines a credit repair organization as:
any person who uses any instrumentality of interstate commerce or the mails to sell, provide, or perform (or represent that they will sell, provide, or perform) any service, in return for the payment of money or other valuable consideration, for the express or implied purpose of -
(i) improving any consumer's credit record, credit history, or credit rating; or
(ii) providing advice or assistance to any consumer with regard to any activity or service in clause (i).
The Act excludes from the definition of a credit repair organization:
any nonprofit organization which is exempt from taxation under IRC
501(c)(3).
This strong federal expression of consumer protection can be defeated by an erroneous determination that an organization is exempt under IRC 501(c)(3). It is crucial, therefore, that the Service make every effort to adequately develop all the facts and circumstances regarding an applicant's operations.
Full disclosure
The Act requires full disclosure regarding consumer rights before any contract for credit repair services is executed. A written statement must be provided and signed by all prospective customers, and must be retained by the credit repair organization for at least two years after the statement is signed. Consumers must be advised:
- They may dispute inaccurate information in their credit report by contacting the credit bureau directly.
There is no right to have accurate, current, and verifiable information removed from a credit report unless it is over seven years old. Bankruptcy information can be reported for ten years.
They have a right to sue a credit repair organization that violates the Credit Repair Organizations Act.
They have the right to cancel a contract with any credit repair organization for any reason within three business days from the date it was signed.
Written Contract
A written contract is also required and must:
1. specify the terms and conditions of payment, including the total amount of all payments to the credit repair organization or any other person
2. contain a full and detailed description of the services to be performed by the credit repair organization for the consumer, including:
(A) all guarantees of performance; and
(B) an estimate of the time required for the performance of the services
3. contain the credit repair organization's name and principal business address
4. contain a conspicuous statement in bold face type, in immediate proximity to the space reserved for the consumer's signature on the contract, which reads as follows: "You may cancel this contract without penalty or obligation at any time before midnight of the 3rd business day after the date on which you signed the contract. See the attached notice of cancellation form for an explanation of this right."
Prohibitions
The statutory scheme provides further protection for consumers with a list of prohibitions. The Act prohibits credit repair organizations, as well as their employees and agents, from:
- misrepresenting the organization's services
making or enticing consumers to make untrue or misleading statements either to the credit reporting agencies or to the consumer's creditors
advising consumers to attempt to change their credit identities
accepting payment or other valuable consideration for their services in advance of fully performing those services.
Civil Penalties
The Act includes civil penalties for violations and procedures for administrative enforcement by both the FTC and the states.
Waiver of Rights
A consumer cannot waive his rights under the Act.
- Any waiver of any protection afforded by the Act is treated as void, and contracts that are not in compliance with the Act's provisions may not be enforced by any federal or state court.
The Federal Trade Commission Act
The FTC Act [15 U.S.C. §§ 41 et seq.] is a statute of more general application than the Credit Repair Organizations Act. It prohibits "unfair or deceptive acts or practices in or affecting commerce." This general proscription applies to the operations of both credit repair companies and credit counseling agencies. It is not clear, however, whether IRC 501(c)(3) organizations will come under the FTC Act enforcement umbrella.
