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OAH 16-1003-21229-2 |
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE Department
of COMMERCE
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In the Matter of One
Source Management |
FINDINGS
OF FACT, CONCLUSIONS
AND RECOMMENDATION |
This matter came on for a prehearing conference before
Administrative Law Judge Manuel J. Cervantes (ALJ) on May 26, 2010, in a
courtroom at the Office of Administrative Hearings (OAH) in
Michael J. Tostengard, Assistant Attorney General,
appeared on behalf of the Minnesota Department Commerce (Department). There was no appearance by, or on behalf of,
Respondent One Source Management after written due notice by
ISSUES
1.
Whether the
Respondent has engaged in unregistered debt settlement services in
2.
Whether the
Respondent charged excessive fees in violation of Minn. Stat. § 332B.09, subd.
4 (2008); and
3.
Whether the
Respondent violated Minn. Stat. § 45.027,
subd. 1a (2008) by failing to respond to the Department’s investigation.
The ALJ concludes that the Respondent is in default and
recommends that the allegations in the Notice and Order for Hearing be deemed
proven and be accepted as true.
The
ALJ further concludes there is a basis to subject Respondent to disciplinary
action under Minn. Stat. § 332B and recommends that the Department impose
discipline upon Respondent.
Based upon the evidence in the hearing record, the
ALJ makes the following:
FINDINGS OF
FACT
1.
Respondent One
Source Management is not licensed in any capacity by the Department.
2.
The Department
received a complaint from
3.
Respondent told
K.H. that they would provide a faster way to pay off the credit cards and
guarantee a minimum savings of $2,000.
The very same day that Respondent contacted K.H. it charged one of her
credit cards a fee of $998.95.
4.
Notwithstanding
the charge by Respondent, no debt settlement services were provided to K.H.
5.
In February
2010, the Department attempted to contact Respondent on four separate instances
to address the complaint. No response
was received from Respondent.
6.
In addition, the
Department received a complaint from
7.
In February
2010, the Department attempted to contact the Respondent, on two separate
instances to address these complaints.
No response was received from Respondent.
8.
On April 2,
2010, a Notice and Order Hearing in this
matter was mailed to the Respondent’s last known address. The Notice indicated that a conference would
be held in this matter on May 26, 2010 before the undersigned.
9.
The Notice and Order in this matter includes
the following statement: Respondent’s failure to appear at the prehearing
conference or hearing may result in a finding that Respondent is in default,
that the Department’s allegations contained in the Statement of Charges may be
accepted as true, and its proposed disciplinary action may be upheld.[1]
10.
Respondent failed
to appear at the prehearing conference on May 26, 2010. After a short wait, the Department made an
oral motion for default judgment. No
prehearing request was made for a continuance nor was any communication
received from Respondent by the ALJ.
CONCLUSIONS
OF LAW
1.
The ALJ and the
Commissioner are authorized to consider the allegations against Respondent
under Minn. Stat. § 14.50.
2.
Respondent was
given written notice on April 2, 2010 of the scheduled prehearing conference of
May 26, 2010 mailed to its last known address. This matter is, therefore, properly before
the Commissioner and the ALJ.[2]
3.
Respondent is in
default as a result of its failure to appear at the scheduled prehearing
conference.
4.
Pursuant to
Minn. R. 1400.6000, a contested case may be decided adversely to a
party who defaults. Upon default, the
allegations and claims set forth in the original Notice and Order for Hearing may
be taken as true or deemed proved without further evidence.
5.
Minn. Stat.
§ 332B.03 (2008), states,
On or
after August 1, 2009, it is unlawful for any person, whether or not located in
this state, to operate as a debt settlement services provider or provide debt
settlement services including, but not limited to, offering, advertising, or
executing or causing to be executed any debt settlement services or debt
settlement services agreement, except as authorized by law, without first becoming
registered as provided in this chapter. Debt settlement services providers may
continue to provide debt settlement services without complying with this
chapter to those debtors who entered into a contract to participate in a debt
settlement services plan prior to August 1, 2009, but may not enter into a debt
settlement services agreement with a debtor on or after August 1, 2009, without
complying with this chapter.
6.
Respondent has
engaged in unregistered debt settlement services in
7.
Minn. Stat.
§ 332B.09, subd. 4 (2008), states,
No fees,
charges, assessments, or any other compensation may be claimed, demanded,
charged, collected, or received other than the fees allowed under this section.[3] Any fees collected in excess of
those allowed under this section must be immediately returned to the debtor.
8.
Respondent has
charged fees in excess of those allowed by law and therefore, Respondent has
violated Minn. Stat. § 332B.09, subd. 4 (2008).
9.
Minn. Stat.
§ 45.027, subd. 1a (2008), states,
An
applicant, registrant, certificate holder, licensee, or other person subject to
the jurisdiction of the commissioner shall comply with requests for
information, documents, or other requests from the department within the time
specified in the request, or, if no time is specified, within 30 days of the
mailing of the request by the department. Applicants, registrants, certificate
holders, licensees, or other persons subject to the jurisdiction of the
commissioner shall appear before the commissioner or the commissioner's
representative when requested to do so and shall bring all documents or
materials that the commissioner or the commissioner's representative has
requested.
10.
Respondent
failed respond to inquires by the Department and therefore, Respondent has
violated Minn. Stat. § 45.027, subd. 1a (2008).
11.
The allegations
contained in the Notice and Order for Hearing are deemed proven and are taken
as true.
12.
The facts set
forth in the Notice and Order for Hearing provide a basis to subject Respondent
to disciplinary action.
13.
The imposition
of discipline against Respondent is in the public interest.
Based upon these Conclusions, the ALJ makes the
following:
It is hereby respectfully recommended that
the Commissioner impose discipline against One Source Management.
Dated: June 23, 2010
s/Manuel J. Cervantes
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MANUEL J. CERVANTES Administrative Law Judge |
This report is a recommendation, not a
final decision. The Commissioner of the Minnesota Department of Commerce will
make the final decision after a review of the record. The Commissioner may adopt, reject or modify
the Findings of Fact, Conclusions, and Recommendations. Under Minn. Stat. § 14.61, the final decision
of the Commissioner shall not be made until this Report has been made available
to the parties to the proceeding for at least ten days. An opportunity must be afforded to each party
adversely affected by this Report to file exceptions and present argument to
the Commissioner, Parties should contact Glenn Wilson, Commissioner, Minnesota
Department of Commerce,
If the Commissioner fails to issue a
final decision within 90 days of the close of the record, this report will
constitute the final agency decision under Minn. Stat. § 14.62, subd. 2a. The
record closes upon the filing of exceptions to the report and the presentation
of argument to the Commissioner, or upon the expiration of the deadline for
doing so. The Commissioner must notify
the parties and the Administrative Law Judge of the date on which the record
closes.
Under Minn. Stat. § 14.62, subd. 1, the agency is
required to serve its final decision upon each party and the Administrative Law
Judge by first class mail or as otherwise provided by law.