Code of Massachusetts Regulations › 940 CMR - OFFICE OF THE ATTORNEY GENERAL › Title 940 CMR 18.00 - Viatical Settlements And Viatical Loans › Section 18.07 - Prohibited Practices

Current through Register 1525, July 5, 2024
(1) It is an
			 unfair or deceptive act or practice for a Viatical Settlement Provider, Broker
			 or Representative, or a Viatical Loan Provider, Broker or Representative to
			 make any representation or statement of fact if the representation or statement
			 is false or misleading or has the tendency or capacity to be misleading, or if
			 the Viatical Settlement Provider, Broker or Representative, or Viatical Loan
			 Provider, Broker or Representative does not have sufficient information upon
			 which a reasonable belief in the truth of the representation or statement could
			 be based. Such claims or representations include, but are not limited to, the
			 availability, terms, conditions, or charges, incident to the Viatical
			 Settlement or Viatical Loan Agreement. In addition, other such claims and
			 representations by the Viatical Settlement Provider, or Broker or
			 Representative, or the Viatical Loan Provider, or Broker or Representative may
			 include the amount of the brokerage fee, if any, the services which will be
			 provided or performed for the brokerage fee, whether the Viator or Viatical
			 Loan Applicant /Borrower has the right to cancel any agreement with the
			 Viatical Settlement Provider or Broker or Viatical Loan Provider or Broker, the
			 Viator's or Viatical Loan Applicant's or Borrower's right to refund of the
			 brokerage fee, and the identity of the Viatical Settlement Provider or Viatical
			 Loan Provider that will provide the Settlement or Loan.
(2) It is an unfair or deceptive act or
			 practice for a Viatical Settlement Provider, Broker or Representative, or
			 Viatical Loan Provider, Broker or Representative to fail to comply with all
			 applicable federal and state laws, including licensing requirements.
(3) It is an unfair or deceptive act or
			 practice for a Viatical Settlement Provider, Broker or Representative or
			 Viatical Loan Provider, Broker or Representative to include false, misleading
			 or deceptive representations in advertising, promotional, or informational
			 publications regarding Viatical Settlements or Viatical Loans.
(4) It is an unfair or deceptive act or
			 practice for a Viatical Settlement Provider, Broker or Representative, or
			 Viatical Loan Provider, Broker or Representative to mass produce and/or
			 distribute brochures or advertisements containing Patient Identifying
			 Information.
(5) It is an unfair or
			 deceptive act or practice for a Viatical Settlement Provider, Broker or
			 Representative, or Viatical Loan Provider, Broker or Representative to fail to
			 mail to the last known address of, or to provide in person to, a prospective
			 Viator or Borrower, a written offer of a Viatical Settlement Contract or
			 Viatical Loan Agreement, respectively, containing all terms of the offer
			 detailed therein in accordance with the terms contained in
			 940 CMR
			 18.05 and
			 18.06.
(6) It is an unfair or deceptive act or
			 practice for a Viatical Settlement Provider, Broker or Representative, or
			 Viatical Loan Provider, Broker or Representative to provide Patient Identifying
			 Information to any Person who is not the owner of the policy, unless the
			 Insured has provided informed, written consent to the release of such
			 information.
(7) It is an unfair or
			 deceptive act or practice for a Viatical Settlement Provider, Broker,
			 Representative, or Viatical Loan Provider, Broker, or Representative to fail to
			 obtain from any Person or entity who is provided with Patient Identifying
			 Information a signed affirmation that such Person or entity shall not further
			 divulge such information without procuring the express, written consent of the
			 Insured in each instance in which the information is to be divulged.
			 Notwithstanding the foregoing, if a Viatical Settlement Provider, Broker or
			 Representative or Viatical Loan Provider, Broker or Representative is served
			 with a subpoena and, therefore, compelled to produce records containing Patient
			 Identifying Information, it shall notify the Viator or Viatical Loan Applicant/
			 Borrower and the Insured within five business days after receiving notice of
			 such subpoena.
(8) It is an unfair
			 or deceptive act or practice for a Viatical Settlement Provider to fail to
			 maintain the funds for the purchase of the insurance policy death benefit in an
			 escrow account controlled by a third party escrow agent prior to the final
			 payment, whether by lump sum or by installments, and transfer of ownership of
			 the policy.
(9) It is an unfair or
			 deceptive act or practice for a Viatical Settlement Provider, Broker, or
			 Representative, or Viatical Loan Provider, Broker, or Representative to pay a
			 finder's fee to any Person who is providing, or has previously provided, care
			 or services to the Insured, including, but not limited to, any medical or
			 mental health provider, social services provider, attorney, accountant,
			 financial advisor or planner, investment advisor or planner or any other Person
			 who has a demonstrable conflict of interest in collecting a finder's
			 fee.
(10) It is an unfair or
			 deceptive act or practice for a Viatical Settlement Provider, Broker or
			 Representative, or Viatical Loan Provider, Broker or Representative to charge
			 an application and/or brokerage fee which significantly deviates from
			 industry-wide standards or is otherwise unconscionable.
(11) It is an unfair or deceptive act or
			 practice for a Viatical Settlement Provider, Broker or Representative, or
			 Viatical Loan Provider, Broker or Representative to accept any brokerage fee,
			 application fee or other fee, prior to the Viator's receipt of the applicable
			 disclosure forms mandated by
			 940 CMR 18.05(1)
			  or
			 18.06(1)
			  at the times specified in
			 940 CMR 18.05(7)
			  or
			 18.06(6).
			 Notwithstanding the foregoing, an application or brokerage fee may be accepted
			 if the Viatical Settlement Provider, Broker or Representative, or Viatical Loan
			 Provider, Broker or Representative provides written notice, prior to the
			 receipt of such fee, as to whether the fee is refundable.
(12) It is an unfair or deceptive act or
			 practice for a Viatical Loan Provider, Broker or Representative to procure or
			 negotiate for a Borrower a Viatical Loan with rates or other terms which
			 significantly deviate from industry-wide standards or which are otherwise
			 unconscionable.
(13) It is an
			 unfair or deceptive act or practice for a Viatical Settlement Provider or
			 Viatical Loan Provider to act also as a Broker, whether entitled to collect a
			 fee directly or indirectly, in the same Viatical Settlement or Viatical Loan
			 Agreement.
(14) It is an unfair or
			 deceptive act or practice for a Viatical Settlement or Viatical Loan Provider
			 to fail to disburse funds in accordance with any commitment or agreement with
			 the Viator.
(15) It is an unfair or
			 deceptive act or practice for a Viatical Settlement Provider, Broker or
			 Representative, or Viatical Loan Provider, Broker or Representative to accept
			 any fees which were not disclosed in accordance with
			 940 CMR 18.00 or applicable
			 law.
(16) It is an unfair or
			 deceptive act or practice for a Viatical Settlement Provider or Broker to fail
			 to mail to the last known address of, or to provide in person to, the Viator,
			 written notice of the names of any Brokers or Representatives who shall be paid
			 a fee, commission or any other valuable consideration by the Viatical
			 Settlement Provider as a result of the settlement and the amounts which shall
			 be paid prior to execution of the settlement.