Code of Massachusetts Regulations › 209 CMR - DIVISION OF BANKS AND LOAN AGENCIES › Title 209 CMR 18.00 - Conduct of the business of debt collectors, student loan servicers, and third party loan servicers › Section 18.02 - Definitions

Current through Register 1525, July 5, 2024
Automatic Federal Student Loan
				Servicer
. A person that acts or intends to act as a student loan
				servicer solely pursuant to a contract with the United States Secretary of
				Education under
				20
				U.S.C. 1087f and shall also include
				subservicers who solely engage in student loan servicing pursuant to a
				subservicing agreement with an automatic federal student loan servicer.
Automatic Federal Student Loan Servicer
				Applicant
. Any automatic federal student loan servicer who is
				required to be licensed under the provisions of M.G.L. c. 93L, § 2(f). The
				term shall include partners or members, if the applicant is a partnership,
				association, or limited liability company, and officers, directors and
				principal employees, if the applicant is a corporation.
Commissioner
. The Commissioner of
				Banks.
Communication
or
Communicating
. Conveying information regarding a debt
				directly or indirectly to any person through any medium.
Consumer
. Any natural person obligated
				or allegedly obligated to pay any debt.
Consumer Reporting Agency
. Any person
				which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly
				engages in whole or in part in the practice of assembling or evaluating
				consumer credit information or other information on consumers for the purpose
				of furnishing consumer reports to third parties under M.G.L. c. 93,
				§§ 50 through 68.
Creditor
. Any person who offers or
				extends credit creating a debt or to whom a debt is owed, but such term does
				not include any person to the extent that he receives an assignment or transfer
				of a debt in default solely for the purpose of facilitating collection of such
				debt for another.
Debt
. Any obligation or alleged
				obligation of a consumer to pay money arising out of a transaction in which the
				money, property, insurance, or services which are the subject of the
				transaction are primarily for personal, family, or household purposes, whether
				or not the obligation has been reduced to judgment.
Debt Collector
. Any person who uses an
				instrumentality of interstate commerce or the mails in any business the
				principal purpose of which is the collection of a debt, or who regularly
				collects or attempts to collect, directly or indirectly, a debt owed or due or
				asserted to be owed or due another. Debt collector shall also include any
				person who buys or acquires debt that is in default at the time of purchase or
				acquisition and who seeks to collect such debt directly. Notwithstanding the
				exclusion provided by 209 CMR 18.02:
Debt Collector
(f), debt collector shall include a creditor who, in the process of collecting
				his or her own debt, uses any name other than his or her own which would
				indicate that a third person is collecting or attempting to collect the debt.
				Debt collector shall also include a person who uses an instrumentality of
				interstate commerce or the mails in a business the principal purpose of which
				is the enforcement of security interests. Debt collector shall not
				include:
(a) an officer or employee of a creditor while, in the name of
				the creditor, collecting debts for the creditor;
(b) a person while acting as a debt collector for another
				person, both of whom are related by common ownership or affiliated by corporate
				control, if the person acting as a debt collector does so only for a person to
				whom it is so related or affiliated and if the principal business of the person
				is not the collection of a debt;
(c) an officer or employee of the United States or a state of
				the United States to the extent that collecting or attempting to collect a debt
				is in the performance of his or her official duty;
(d) a person while serving or attempting to serve legal
				process on another person in connection with the judicial enforcement of a
				debt;
(e) a nonprofit organization which, at the request of a
				consumer, performs
bona fide
consumer credit counseling and
				assists the consumer in the liquidation of debts by receiving payments from the
				consumer and distributing the amounts to creditors;
(f) a person collecting or attempting to collect a debt owed or
				due or asserted to be owed or due another to the extent the activity:
1. is incidental to a
bona fide
fiduciary
				obligation or a
bona fide
escrow arrangement;
2. concerns a debt which was originated by the person;
3. concerns a debt which was not in default at the time it was
				obtained by the person; or
4. concerns a debt obtained by the person as a secured party in
				a commercial credit transaction involving the creditor;
(g) attorneys-at-law licensed to practice law in the
				Commonwealth who are collecting a debt on behalf of a client; and
(h) an agent or independent contractor employed for the purpose
				of collecting a charge or bill owed by a tenant to a landlord or owed by a
				customer to a corporation subject to the supervision of the Department of
				Telecommunications and Energy or the Division of Insurance insofar as the
				person collects charges or bills only for the landlord or supervised
				corporations.
(i) a student loan servicer licensed under M.G.L. c. 93L who is
				engaged solely in the activities of a student loan servicer; provided, however,
				that if a student loan servicer acts, represents, operates or holds itself out
				as a debt collector outside of the scope of M.G.L. c. 93L, the student loan
				servicer shall obtain a debt collector license.
Debt Collector Applicant
. Any debt
				collector who is required to be licensed under the provisions of M.G.L. c. 93,
				§ 24A and has applied for such license. The term shall include partners or
				members, if the applicant is a partnership, association or limited liability
				company, and officers, directors and principal employees, if the applicant is a
				corporation.
Licensee
. Any person who is licensed
				by the Commissioner as a debt collector under M.G.L. c. 93, §§ 24
				through 28, and
				209 CMR 18.00; or any person
				who is licensed as a student loan servicer or automatic federal student loan
				servicer under M.G.L. c. 93L.
Location Information
. A consumer's
				place of abode and his or her telephone number at such place, or his or her
				place of employment.
Net Worth
. The applicant's or
				licensee's total assets less total liabilities, omitting the following
				assets:
(a) that portion of an applicant's assets pledged to secure
				obligations of any person or entity other than that of the applicant;
(b) any asset due from officers or stockholders of the
				applicant or persons in which the applicant's officers or stockholders have an
				interest;
(c) an amount in excess of the lower of the cost or fair market
				value of mortgage loans in foreclosure, or real property acquired through
				foreclosure;
(d) an investment shown on the balance sheet in joint ventures,
				subsidiaries, or affiliates, which is greater than the fair market value of the
				assets;
(e) goodwill or value placed on insurance renewals or other
				similar intangible value;
(f) organization costs;
(g) the value of servicing contracts not determined in
				accordance with the Financial Accounting Standards Codification Topic 860
				"Transfers and Servicing"; and
(h) any other intangible asset, as may be determined by the
				Commissioner.
NMLS
. The Nationwide Multi-State
				Licensing System & Registry, a multistate licensing system owned and
				operated by the State Regulatory Registry LLC (SRR), a wholly owned subsidiary
				of the Conference of State Bank Supervisors (CSBS), an association of state
				financial services regulators.
Person
. A natural person or an
				organization, including a corporation, limited or general partnership, limited
				liability partnership, limited liability company, joint stock company, trust,
				business trust, profit and not-for-profit incorporated or unincorporated
				associations, and any other entity authorized under the laws of any state of
				the United States or any country.
Principal Employee
. Any person with
				the power to exercise, directly or indirectly, managerial, supervisory, or
				policy-making authority or such other controlling influence over the
				management, policies, or operation of the Licensee.
Register
. Filing a notice with the
				Commissioner on a form prescribed by the Commissioner that notifies the
				Commissioner of the intent to engage in the activities of a third party loan
				servicer in this state and the payment of a fee required under M.G.L. c. 93,
				§ 24C, along with the other documents, proofs, and fees required by the
				Commissioner.
Student Loan
. A loan primarily used to
				finance postsecondary education or other school-related expenses.
Student Loan Borrower
. A resident of
				the Commonwealth who has received or agreed to repay a student loan or a person
				who shares responsibility with that resident for repaying the student loan,
				including cosigners.
Student Loan Servicer
. A person
				responsible for servicing a student loan to a student loan borrower. Unless
				otherwise indicated, this term shall include an automatic federal student loan
				servicer.
Student Loan Servicer Applicant
. Any
				student loan servicer who is required to be licensed under the provisions of
				M.G.L. c. 93L, § 2(c). The term shall include partners or members, if the
				applicant is a partnership, association or limited liability company, and
				officers, directors and principal employees, if the applicant is a
				corporation.
Student Loan Servicing
.
(a) Receiving or soliciting a scheduled periodic payment from a
				student loan borrower pursuant to the terms of a student loan and making the
				principal, interest and other payments to the owner of the loan or other
				third-party with respect to the amounts received from the student loan borrower
				as may be required pursuant to the terms of the servicing loan document or
				servicing contract;
(b) Maintaining account records for a loan and communicating
				with the student loan borrower regarding the loan on behalf of the owner of the
				loan during a period in which no payment is required on the loan; or
(c) Interacting with a student loan borrower, including
				activities to help prevent default on obligations arising from a loan, to
				facilitate the activities described in clause (a) or clause (b); provided,
				however, that the actions of the student loan ombudsman under section 35 of
				chapter 12 and the actions of the Division of Banks consumer assistance unit
				under section 3A of chapter 26 shall not constitute servicing.
Third Party Loan Servicing
. Receiving
				a scheduled periodic payment from a consumer pursuant to the terms of a loan,
				including amounts for escrow accounts, and making the payments to the owner of
				the loan or other third-party of principal and interest and other payments with
				respect to the amounts received from the borrower as may be required pursuant
				to the terms of the servicing loan document or servicing contract. In the case
				of a home equity conversion mortgage or reverse mortgage, servicing includes
				making payments to the borrower.
Third Party Loan Servicer
. A person
				who uses an instrumentality of interstate commerce or the mails in any business
				the principal purpose of which is servicing a loan directly or indirectly, owed
				or due or asserted to be owed or due another. Third party loan servicer shall
				not include a student loan servicer licensed under M.G.L. c. 93L who is engaged
				solely in the activities of a student loan servicer; provided, however, that if
				a student loan servicer acts, represents, operates or holds itself out as a
				third party loan servicer outside of the scope of said chapter 93L, the student
				loan servicer shall register as a third party loan servicer.