|
|
OAH
3-1005-21397-2 CA12310/KRJ |
|
|
|
STATE OF
OFFICE
OF ADMINISTRATIVE HEARINGS
FOR
THE COMMISSIONER OF COMMERCE
|
In the Matter of Five Star Group of Minnesota, Ltd., d/b/a Commercial Surveillance Bureau |
FINDINGS OF FACT, CONCLUSIONS
AND RECOMMENDATION |
The
above-entitled matter came on before Administrative Law Judge Kathleen D.
Sheehy for a prehearing conference on August 18, 2010, at the Office of
Administrative Hearings,
Michael J.
Tostengard, Assistant Attorney General,
STATEMENT
OF ISSUES
The issue presented in this case
is whether the Respondent is subject to discipline and/or civil penalties
because:
(1) The
Respondent made false and misleading representations in connection with the
collection of a purported debt that it was licensed to do business in
Minnesota, in violation of 15 U.S.C. § 1692e and Minn. Stat. § 332.37(12)
(2008);[1]
(2) The
Respondent engaged in unlicensed debt collection activity, in violation of
Minn. Stat. § 332.33, subd. 1;
(3) The
Respondent failed to respond to the Department’s administrative subpoena, in
violation of Minn. Stat. § 332.40, subd. 3;
(4) The
Respondent acted in an abusive or threatening manner and used intimidation in
the course of doing business as a debt collector, demonstrating that it is incompetent
or unqualified to act under authority or license granted by the commissioner
pursuant to Minn. Stat. § 45.027, subd. 7(a)(4), and
(5) The
Respondent has demonstrated untrustworthiness, in violation of Minn. Stat. §
45.027, subd. 7(a)(4); and
(6) The
Respondent acted in an abusive or threatening manner by threatening to contact
financial institutions or worksites to disclose debts to other parties, in
violation of Minn. Stat. § 332.37(12).
Based upon all of the files, records and proceedings herein, the Administrative Law Judge makes the following:
FINDINGS
OF FACT
1.
On June 24, 2010, the Commissioner served by first class
mail a copy of the Notice and Order for
Hearing, Order to Show Cause, Order for Prehearing Conference, and Statement of
Charges (Notice and Order for Hearing) on the Respondent at its last known
address.[2]
2.
The Notice and Order for Hearing scheduled a prehearing
conference in this matter on August 18, 2010, at the Office of Administrative
Hearings,
3.
The Notice and Order for Hearing specifically notified the
Respondent that failure to appear at the prehearing conference may result in a
finding that Respondent is in default, that the Department’s allegations in the
Statement of Charges may be accepted as true, and that its proposed
disciplinary action may be upheld.[3]
4.
The Respondent did not appear for the prehearing conference,
nor did Respondent contact the Administrative Law Judge prior to the prehearing
conference to seek a continuance or request any other relief.
5.
Because Respondent failed to appear for the prehearing
conference, it is in default.
6.
Pursuant to Minn. R. 1400.6000 (2009), the allegations
contained in the Notice and Order for Prehearing Conference are taken as true
and incorporated by reference into these Findings of Fact.
Based upon the
foregoing Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS
1.
The Administrative Law Judge and the Commissioner are
authorized to consider the charges against Respondent under Minn. Stat. §§
14.50 and 45.024, subd. 1.
2.
Respondent received due, proper and timely notice of the
charges against it and of the time and place of the prehearing conference. This matter is, therefore, properly before
the Commissioner and the Administrative Law Judge.
3.
The Department has complied with all relevant procedural
legal requirements.
4.
Under
5.
The Respondent is in default as a result of its failure to
appear at the prehearing conference.
6.
No collection
agency or collector shall violate any of the provisions of the Fair Debt
Collection Practices Act of 1977 while attempting to collect on any account,
bill or other indebtedness.[4] The Fair Debt Collection Practices Act
prohibits the making of false, deceptive, or misleading representations in
connection with the collection of any debt.[5]
7.
The Respondent
made false, deceptive, or misleading representations that he was a business
consultant, not a debt collector, and he used a false name in communications
with a debtor, in violation of Minn. Stat.
§ 332.37, subd. 12, and 15 U.S.C.
§ 1692e.[6]
8.
No person shall
conduct within this state a collection agency or engage within this state in
the business of collecting claims for others without having first applied for
and obtained a collection agency license.[7]
9.
The Respondent engaged in unlicensed debt collection
activity with regard to a
10.
The Commissioner
has authority to administer Chapter 332 of Minnesota Statutes.[8] A 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.[9]
11.
The Respondent failed to respond to an administrative
subpoena issued in January 2010, in violation of Minn. Stat. § 45.027, subd.
1a.
12.
No collection agency or collector shall publish or cause to
be published any list of debtors except for credit reporting purposes, use
shame cards or shame automobiles, advertise or threaten to advertise for sale
any claim as a means of forcing payment thereof, or use similar devices or
methods of intimidation.[10] No person subject to the duties and
responsibilities entrusted to the commissioner shall engage in an act or
practice that demonstrates the person is untrustworthy, financially
irresponsible, or otherwise incompetent or unqualified to act under the authority
granted by the commissioner.[11]
13.
The Respondent attempted to collect a debt from a Minnesota
resident in an abusive, threatening, and intimidating manner, in violation of Minn.
Stat. § 332.37(7) and Minn. R. 2870.3700.
These actions demonstrate the Respondent is incompetent or unqualified
to act under authority granted by the commissioner, as provided in Minn. Stat.
§ 45.027, subd. 7(a)(4).
14.
The Commissioner
may impose a civil penalty upon a person who violates any law, rule, or order
related to the duties and responsibilities entrusted to the commissioner.[12]
15.
Disciplinary action against the Respondent is in the public
interest.
Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:
IT IS HEREBY RECOMMENDED: that
the Commissioner take disciplinary action against the Respondent.
Dated: August 27, 2010
|
s/Kathleen D. Sheehy |
|
KATHLEEN D. SHEEHY |
|
Administrative Law Judge |
Reported: Default
This
Report is a recommendation, not a final decision. The Commissioner of Commerce will make the
final decision after reviewing the record and may adopt, reject or modify these
Findings of Fact, Conclusions, and Recommendation. Under Minn. Stat. § 14.61, the Commissioner’s
decision shall not be made until this Report has been available to the parties
to the proceeding for at least ten (10) 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 Emmanuel
Munson-Regala, Deputy Commissioner, Market Assurance Division, Minnesota
Department of Commerce,
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. 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. In order to comply with this statute, the
Commissioner must then return the record to the Administrative Law Judge within
10 working days to allow the Judge to determine the discipline to be
imposed. 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.
[1] All references are to the 2008 edition of Minnesota Statutes, unless otherwise noted.
[2] Affidavit of Service by First-Class Mail (June 24, 2010).
[3] Notice and Order for Prehearing Conference at 5.
[4]
[5] 15 U.S.C. § 1692e.
[6]
There is no allegation in the Statement of Charges that the Respondent falsely
represented that it was a licensed debt collector in
[7]
[8]
[9]
[10]
[11]
[12]