Bill Text: VA HB10 | 2020 | Regular Session | Enrolled

Virginia House Bill 10 (Prior Session Legislation)

NOTE: There are more recent revisions of this legislation. Read Latest Draft

Bill Title: Student loans; licensing of qualified education loan servicers, civil penalties, report.

Spectrum: Partisan Bill (Democrat 5-0)

Status: (Passed) 2020-04-22 - Governor: Acts of Assembly Chapter text (CHAP1198) [HB10 Detail]

Download: Virginia-2020-HB10-Enrolled.html

VIRGINIA ACTS OF ASSEMBLY -- CHAPTER An Act to amend and reenact §§19.2-389, as it is currently effective and as it shall become effective, and 59.1-200 of the Code of Virginia and to amend the Code of Virginia by adding in Title 6.2 a chapter numbered 26, consisting of sections numbered 6.2-2600 through 6.2-2622, relating to student loans; licensing of qualified education loan servicers; civil penalties. [H 10] Approved

Be it enacted by the General Assembly of Virginia:

1. That §§19.2-389, as it is currently effective and as it shall become effective, and 59.1-200 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding in Title 6.2 a chapter numbered 26, consisting of sections numbered 6.2-2600 through 6.2-2622, as follows:

CHAPTER 26. QUALIFIED EDUCATION LOAN SERVICERS.

§6.2-2600. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Licensee" means a person to whom a license has been issued under this chapter.

"Nationwide Multistate Licensing System and Registry" or "Registry" means the nationwide multistate licensing system and registry created by the Conference of State Bank Supervisors and the American Association of Residential Mortgage Regulators.

"Principal" means any person who, directly or indirectly, owns or controls (i) 10 percent or more of the outstanding stock of a stock corporation or (ii) a 10 percent or greater interest in any other type of entity.

"Qualified education loan" means any loan primarily used to finance a postsecondary education and costs of attendance at a postsecondary public or private educational institution, including tuition, fees, books and supplies, room and board, transportation, and miscellaneous personal expenses. "Qualified education loan" includes a loan made to refinance a qualified education loan. "Qualified education loan" does not include an extension of credit under an open-end credit plan, a reverse mortgage transaction, a residential mortgage transaction, or any other loan that is secured by real property or a dwelling.

"Qualified education loan borrower" or "borrower" means (i) any current resident of the Commonwealth who has received or agreed to pay a qualified education loan or (ii) any person who is contractually obligated with such resident for repaying the qualified education loan.

"Qualified education loan servicer" or "loan servicer" means any person, wherever located, that:

1. (i) Receives any scheduled periodic payments from a qualified education loan borrower or notification of such payments or (ii) applies payments to the qualified education loan borrower's account pursuant to the terms of the qualified education loan or the contract governing the servicing;

2. During a period when no payment is required on a qualified education loan, (i) maintains account records for the qualified education loan and (ii) communicates with the qualified education loan borrower regarding the qualified education loan, on behalf of the qualified education loan's holder; or

3. Interacts with a qualified education loan borrower, which includes conducting activities to help prevent default on obligations arising from qualified education loans or to facilitate any activity described in clause (i) or (ii) of subdivision 1.

"Servicing" means:

1. (i) Receiving any scheduled periodic payments from a qualified education loan borrower or notification of such payments or (ii) applying the payments of principal and interest and such other payments, with respect to the amounts received from a qualified education loan borrower, as may be required pursuant to the terms of a qualified education loan;

2. During a period when no payment is required on a qualified education loan, (i) maintaining account records for the loan and (ii) communicating with the qualified education loan borrower regarding the qualified education loan, on behalf of the qualified education loan's holder; or

3. Interacting with a qualified education loan borrower, including conducting activities to help prevent default on obligations arising from qualified education loans or to facilitate any activity described in clause (i) or (ii) of subdivision 1.

§6.2-2601. License requirement; exceptions.

A. No person shall act as a qualified education loan servicer, directly or indirectly, whether or not the person has an office or any other physical presence in the Commonwealth, except in accordance with the provisions of this chapter and without having first obtained a license under this chapter from the Commission.

B. Every qualified education loan servicer required to be licensed under this chapter shall register with the Registry and be subject to such registration and renewal requirements as may be established by the Registry, in addition to any requirements of this chapter. In adopting regulations pursuant to §6.2-2622, the Commission shall include any terms, conditions, or requirements applicable to such registration and renewal. Any fees required by the Registry shall be separate and apart from any fees imposed by this chapter. The Commission, at its discretion, may collect any registration and renewal fees on behalf of the Registry and remit such fees to the Registry or permit the Registry to collect any fees imposed by this chapter and remit such fees to the Commission.

C. In connection with its implementation and administration of this chapter, the Commission may establish agreements or contracts with the Registry or other entities designated by the Registry to collect, distribute, and maintain information and records, and process fees, related to qualified education loan servicers required to be licensed under this chapter. In establishing such agreements or contracts, the Commission shall not be subject to the Virginia Public Procurement Act (§2.2-4300 et seq.).

D. The provisions of this chapter shall not apply to:

1. Any bank, savings institution, credit union, or financial institution subject to regulation under 12 U.S.C. §2002;

2. Any wholly owned subsidiary of any bank, savings institution, or credit union, provided that such wholly owned subsidiary is subject to the general supervision or regulation of, or subject to audit or examination by, a regulatory body or agency of the United States or any state; or

3. Any public or private nonprofit institution of higher education.

§6.2-2602. Licensure of qualified education loan servicers; automatic issuance of license for federal student loan servicing contractors.

A. A person seeking to act as a qualified education loan servicer is exempt from the application procedures described in subsections A and B of §6.2-2603 upon determination by the Commissioner that the person (i) has an agreement with the U.S. Secretary of Education under 20 U.S.C. § 1078(b), solely to the extent of the person's actions as a guarantor that engages in averting defaults, or (ii) is a party to a contract awarded by the U.S. Secretary of Education under 20 U.S.C. §1087f. The Commissioner shall prescribe the procedure to document eligibility for this exemption.

B. With regard to a person exempted from the application procedures described in subsections A and B of §6.2-2603 pursuant to subsection A, the Commissioner shall:

1. Automatically issue a license upon payment of the fee required by subsection C of §6.2-2603 and the providing of the bond required by §6.2-2604;

2. Automatically renew a license upon payment of the fees required by subsection E of §6.2-2607; and

3. Deem the person to have met all the requirements set forth in subsections A and B of §6.2-2603.

C. A person issued a license pursuant to subdivision B 1:

1. Is exempt from subsections A and B of §6.2-2603; and

2. Shall comply with the record requirements in §6.2-2608 except to the extent that the requirements are inconsistent with federal law.

D. A person issued a license pursuant to subdivision B 1 shall, within seven days after receiving notification of the expiration, revocation, or termination of (i) an agreement with the U.S. Secretary of Education under 20 U.S.C. §1078(b) or (ii) any contract awarded by the U.S. Secretary of Education under 20 U.S.C. §1087f, provide the Commissioner with written notice of such expiration, revocation, or termination. Notwithstanding any other provision of this chapter, such person's license shall automatically expire 30 days after the expiration, revocation, or termination of such person's contract. A person seeking to act as a qualified education loan servicer following the expiration of its license may apply for a new license by filing an application that meets the requirements of §§6.2-2603 and 6.2-2604 and subsection B of §6.2-2605.

E. With respect to qualified education loan servicing not conducted pursuant to (i) an agreement with the U.S. Secretary of Education under 20 U.S.C. §1078(b) or (ii) a contract awarded by the U.S. Secretary of Education under 20 U.S.C. §1087f, nothing in this section prevents the Commission from issuing an order to temporarily or permanently prohibit or bar any person from acting as a qualified education loan servicer or violating applicable law.

F. In the case of qualified education loan servicing conducted pursuant to (i) an agreement with the U.S. Secretary of Education under 20 U.S.C. §1078(b) or (ii) a contract awarded by the U.S. Secretary of Education under 20 U.S.C. §1087f, nothing in this section shall prevent the Commission from issuing a cease and desist order or injunction against any qualified education loan servicer to cease activities in violation of this act.

§6.2-2603. Application for license; form; content; fee.

A. An application for a license under this chapter shall be made in writing and on a form provided by the Commission.

B. The application shall set forth:

1. The name and address of the applicant, the name and address of each senior officer, and (i) if the applicant is a partnership, firm, or association, the name and address of each partner or member; (ii) if the applicant is a corporation or limited liability company, the name and address of each director, member, registered agent, and principal; or (iii) if the applicant is a business trust, the name and address of each trustee;

2. The address of the principal place of business to be licensed;

3. Such other information concerning the financial responsibility, background, experience, and general fitness of the applicant and its members, senior officers, directors, trustees, and principals as the Commissioner may require; and

4. Any other pertinent information that the Commissioner may require.

C. The application shall be accompanied by payment of a nonrefundable application fee as prescribed by the Commission. The fee shall not be abated by surrender, suspension, or revocation of the license.

D. If the Commissioner requests information to complete a deficient application and the information is not received within 60 days of the Commissioner's request, the application shall be deemed abandoned unless a request for an extension of time is received and approved by the Commissioner prior to the expiration of the 60-day period. However, this subsection shall not be construed to prohibit the Commission from denying a license application that does not meet the requirements of this chapter.

§6.2-2604. Bond required.

The application for a license shall be accompanied by a bond filed with the Commissioner with corporate surety authorized to execute such bond, in the principal amount as determined by the Commissioner. The amount of the bond shall be not less than $50,000 nor more than $500,000. The form of such bond shall be approved by the Commissioner. Such bond shall be continuously maintained thereafter in full force. Such bond shall be conditioned upon the applicant or licensee performing all written agreements pertaining to qualified education loans, correctly and accurately accounting for all funds received by the applicant or licensee in connection with qualified education loans, and conducting its business in conformity with this chapter and all applicable laws. The aggregate liability under the bond shall not exceed the penal sum of the bond.

§6.2-2605. Investigation of applications.

A. The Commissioner may make such investigations as he deems necessary to determine if the applicant has complied with all applicable provisions of law and regulations.

B. For the purpose of investigating individuals who are members, senior officers, directors, trustees, and principals of an applicant, such persons shall consent to a criminal history records check and submit to fingerprinting. Each member, senior officer, director, trustee, and principal shall pay for the cost of such fingerprinting and criminal history records check. Such persons shall cause their fingerprints, personal descriptive information, and records check fees to be submitted to either of the following, as prescribed by the Commissioner:

1. The Bureau, which shall forward these items to the Central Criminal Records Exchange. The Central Criminal Records Exchange shall (i) conduct a search of its own criminal history records and forward such individuals' fingerprints and personal descriptive information to the Federal Bureau of Investigation for the purpose of obtaining national criminal history record information regarding such individuals and (ii) forward the results of the state and national records searches to the Commissioner or his designee, who shall be an employee of the Commission; or

2. The Registry, provided that it is capable of processing criminal history records checks.

C. If any member, senior officer, director, trustee, or principal of an applicant fails to cause his fingerprints, personal descriptive information, or records check fees to be submitted in accordance with subsection B, the application for a qualified education loan servicer license shall be denied.

§6.2-2606. Qualifications.

A. Upon the filing and investigation of an application for a license, compliance by the applicant with the provisions of §§6.2-2603 and 6.2-2604, and compliance by the persons identified in subsection B of § 6.2-2605 with the provisions contained therein, the Commission shall issue and deliver to the applicant the license applied for to engage in business under this chapter at the location specified in the application if it finds that:

1. The financial responsibility, character, experience, and general fitness of the applicant and its members, senior officers, directors, trustees, and principals are such as to warrant belief that the business will be operated efficiently and fairly, in the public interest, and in accordance with the law;

2. The application does not contain any false statement of a material fact; and

3. The application does not omit any statement of a material fact that is required by §6.2-2603.

B. If the Commission fails to make such findings, no license shall be issued and the Commissioner shall notify the applicant of the denial and the reasons for such denial.

§6.2-2607. Licenses; place of business; changes; renewal.

A. Each license shall state the address at which the principal place of business is to be conducted and shall state fully the legal name of the licensee as well as any fictitious names by which the licensee is conducting business under this chapter. Licenses shall not be transferable or assignable, by operation of law or otherwise. No licensee shall use any names other than the legal name or fictitious names set forth on the license issued by the Commission.

B. Every licensee shall notify the Commissioner, in writing, at least 30 days prior to relocating its principal place of business and confirm the change in writing within five days after such relocation.

C. Every licensee shall within 10 days notify the Commissioner, in writing, of (i) any change to its legal name; (ii) any change to or additional fictitious name by which the licensee is conducting business under this chapter; and (iii) the name, address, and position of each new member, senior officer, director, trustee, and principal. At the direction of the Commissioner, any such individual shall be treated as a member, senior officer, director, trustee, or principal of an applicant for the purpose of being investigated pursuant to subsection B of §6.2-2605. The licensee shall provide such other information with respect to the changes and persons identified in this subsection as the Commissioner may reasonably require.

D. Every license shall remain in force until it expires or has been surrendered, revoked, or suspended. The expiration, surrender, revocation, or suspension of a license shall not affect any preexisting legal right or obligation of such licensee.

E. Notwithstanding any other provision of this chapter, a qualified education loan servicer license shall expire at the end of each calendar year unless it is renewed by a licensee prior to the expiration date. A licensee may renew its license by (i) requesting renewal through the Registry and (ii) complying with any requirements associated with such renewal request that are imposed by the Registry. If a qualified education loan servicer license has expired, the Commission may by regulation permit the former licensee to seek license reinstatement after the license expiration date by renewing its license in accordance with this subsection and paying a reinstatement fee as prescribed by the Commission.

§6.2-2608. Retention of records; responding to the Bureau.

A. Each licensee shall maintain in its principal place of business such books, accounts, and records as the Commissioner may reasonably require in order to determine whether such person is complying with the provisions of this chapter and other laws applicable to the conduct of its business. Such books, accounts, and records shall be maintained apart and separate from any other business in which the qualified education loan servicer is involved. Each licensee shall maintain adequate records of each qualified education loan transaction for at least three years after final payment is made on such loan or the assignment of such qualified education loan, whichever occurs first.

B. To safeguard the privacy of qualified education loan borrowers, records containing personal financial information shall be shredded, incinerated, or otherwise disposed of by a licensee in a secure manner. Licensees may arrange for the shredding, incineration, or other disposal of the records from a business record destruction vendor.

C. When the Bureau requests a written response, books, records, documentation, or other information from a licensee in connection with the Bureau's investigation, enforcement, or examination of compliance with applicable laws, the licensee shall deliver a written response as well as any requested books, records, documentation, or information within the time period specified in the Bureau's request. If no time period is specified, a written response as well as any requested books, records, documentation, or information shall be delivered by the licensee to the Bureau not later than 30 days from the date of such request. In determining the specified time period for responding to the Bureau and when considering a request for an extension of time to respond, the Bureau shall take into consideration the volume and complexity of the requested written response, books, records, documentation, or information and such other factors as the Bureau determines to be relevant under the circumstances.

§6.2-2609. Acquisition of control; application.

A. Except as provided in this section, no person shall acquire, directly or indirectly, 25 percent or more of the voting shares of a corporation or 25 percent or more of the ownership of any other person licensed to conduct business under this chapter unless such person first:

1. Files an application with the Commission in such form as the Commissioner may prescribe from time to time;

2. Delivers such other information to the Commissioner as the Commissioner may require concerning the financial responsibility, background, experience, and general fitness of the applicant and of any proposed new directors, senior officers, principals, trustees, or members of the licensee;

3. Submits and furnishes to the Commissioner information concerning the identity of the applicant and of any proposed new directors, senior officers, principals, trustees, or members of the licensee. Such individuals shall (i) consent to a criminal history records check, submit to fingerprinting, and pay for the cost of such fingerprinting and criminal records check and (ii) cause their fingerprints, personal descriptive information, and records check fees to be submitted to either of the following, as prescribed by the Commissioner:

a. The Bureau, who shall forward these items to the Central Criminal Records Exchange. The Central Criminal Records Exchange shall (i) conduct searches of its own criminal history records and forward such individuals' fingerprints and personal descriptive information to the Federal Bureau of Investigation for the purpose of obtaining national criminal history record information regarding such individuals and (ii) forward the results of the state and national records search to the Commissioner or his designee, who shall be an employee of the Commission; or

b. The Registry, provided that it is capable of processing criminal history records checks; and

4. Pays such application fee as the Commission may prescribe.

B. Upon the filing and investigation of an application, the Commission shall permit the applicant to acquire the interest in the licensee if it finds that the applicant and any proposed new directors, members, senior officers, trustees, and principals of the licensee have the financial responsibility, character, experience, and general fitness to warrant belief that the business will be operated efficiently and fairly, in the public interest, and in accordance with law. The Commission shall grant or deny the application within 60 days from the date a completed application accompanied by the required fee is filed unless the period is extended by order of the Commissioner giving the reasons for the extension. If the application is denied, the Commission shall notify the applicant of the denial and the reasons for the denial.

C. The provisions of this section shall not apply to the acquisition of an interest in a licensee (i) directly or indirectly, including an acquisition by merger or consolidation, by or with a person licensed or exempt from licensing under this chapter; (ii) directly or indirectly, by merger or consolidation by or with a person affiliated through common ownership with the licensee; or (iii) by bequest, descent, survivorship, or operation of law. This section shall also not apply to the acquisition of an interest in a licensee that (i) an agreement with the U.S. Secretary of Education under 20 U.S.C. §1078(b) or (ii) is a party to a contract awarded by the U.S. Secretary of Education under 20 U.S.C. §1087f. The person acquiring an interest in a licensee in a transaction that is exempt from filing an application by this subsection shall send written notice of such acquisition to the Commissioner within 30 days of its closing.

§6.2-2610. Prohibited activities; compliance with federal laws and regulations.

A. No qualified education loan servicer shall:

1. Directly or indirectly employ any scheme, device, or artifice to defraud or mislead qualified education loan borrowers;

2. Engage in any unfair or deceptive act or practice toward any person or misrepresent or omit any material information in connection with the servicing of a qualified education loan, including misrepresenting (i) the amount, nature, or terms of any fee or payment due or claimed to be due on a qualified education loan; (ii) the terms and conditions of the loan agreement; or (iii) the borrower's obligations under the loan;

3. Obtain property by fraud or misrepresentation;

4. Misapply qualified education loan payments to the outstanding balance of a qualified education loan;

5. Provide inaccurate information to a nationally recognized consumer credit bureau;

6. Fail to report both the favorable and unfavorable payment history of the borrower to a nationally recognized consumer credit bureau at least annually if the loan servicer regularly reports information to such a credit bureau;

7. Fail to communicate with an authorized representative of the borrower who provides a written authorization signed by the borrower, provided that the loan servicer may adopt procedures reasonably related to verifying that the representative is in fact authorized to act on behalf of the borrower;

8. Make any false statement of a material fact or omit any material fact in connection with any information provided to the Commission or another governmental authority; or

9. Engage in any other prohibited activities identified in regulations adopted by the Commission pursuant to this chapter.

B. A qualified education loan servicer shall comply with all federal laws and regulations applicable to the conduct of its licensed business. In addition to any other remedies provided by law, a violation of any such federal law or regulation shall be deemed a violation of this chapter and a basis upon which the Commission may take enforcement action pursuant to § 6.2-2615, 6.2-2617, or 6.2-2618.

C. A qualified education loan servicer shall not engage in abusive acts or practices when servicing a qualified education loan. An act or practice is abusive in connection with the servicing of a qualified education loan if the act or practice does either of the following:

1. Materially interferes with the ability of a borrower to understand a term or condition of a qualified education loan; or

2. Takes unreasonable advantage of:

a. A lack of understanding on the part of a qualified education loan borrower of the material risks, costs, or conditions of the qualified education loan;

b. The reasonable reliance by the borrower on a person engaged in the servicing of a qualified education loan to act in the interests of the borrower; or

c. The inability of a borrower to protect the interests of the borrower when selecting (i) a qualified education loan or (ii) a feature, term, or condition of a qualified education loan.

§6.2-2611. Affirmative acts required of qualified education loan servicers.

Except to the extent that this section is inconsistent with any provision of federal law or regulation, and then only to the extent of the inconsistency, a person engaged in qualified education loan servicing shall:

1. Evaluate a qualified education loan borrower for eligibility for an income-driven repayment program prior to placing the borrower in forbearance or default, if an income-driven repayment program is available to the borrower;

2. Respond to a written inquiry from a qualified education loan borrower or the representative of a qualified education loan borrower within 10 business days after receipt of the request and, within 30 business days after receipt of the request, provide information relating to the request and, if applicable, to the action the qualified education loan servicer will take to correct the account or an explanation for the qualified education loan servicer's position that the borrower's account is correct. Such 30-day period may be extended for not more than 15 days if, before the end of the 30-day period, the qualified education loan servicer notifies the borrower, or the borrower's representative, as applicable, of the extension and the reasons for the delay in responding;

3. Not furnish to a consumer reporting agency, during 60 days following receipt of a written request related to a dispute on a borrower's payment on a qualified education loan, information regarding a payment that is the subject of the written request;

4. Except as provided in federal law or required by a qualified education loan agreement, inquire of a borrower how to apply an overpayment to a qualified education loan. A borrower's direction on how to apply an overpayment to a qualified education loan shall remain in effect for any future overpayments during the term of a qualified education loan or until the borrower provides different directions. As used in this subdivision, "overpayment" means a payment on a qualified education loan that exceeds the monthly amount due from a borrower on the qualified education loan, which payment may be referred to as a prepayment;

5. Apply partial payments in a manner that minimizes late fees and negative credit reporting. If loans on a borrower's qualified education loan account have an equal level of delinquency, a qualified education loan servicer shall apply partial payments to satisfy as many individual loan payments as possible on a borrower's account. As used in this subdivision, "partial payment" means a payment on a qualified education loan account that contains multiple individual loans in an amount less than the amount necessary to satisfy the outstanding payment due on all loans in the qualified education loan account, which payment may be referred to as an underpayment;

6. Require, as a condition of a sale, an assignment, or any other transfer of the servicing of a qualified education loan, that the new loan servicer honor all benefits originally represented as available to a qualified education loan borrower during the repayment of the qualified education loan and preserve the availability of the benefits, including any benefits for which the qualified education loan borrower has not yet qualified. If a qualified education loan servicer is not also the loan holder or is not acting on behalf of the loan holder, the loan servicer satisfies the requirement of this subsection by providing the new loan servicer with information necessary for the new loan servicer to honor all benefits originally represented as available to a qualified education loan borrower during the repayment of the qualified education loan and preserve the availability of the benefits, including any benefits for which the loan borrower has not yet qualified; and

7. In the event of a sale, assignment, or other transfer of the servicing of a qualified education loan that results in a change in the identity of the person to whom a qualified education loan borrower is required to send payments or direct any communication concerning the qualified education loan:

a. Transfer to the new loan servicer all records regarding the qualified education loan borrower, the account of the loan borrower, and the qualified education loan of the loan borrower. Such records include the repayment status of the qualified education loan borrower and any benefits associated with the qualified education loan of the loan borrower. The transfer of records shall be completed within 45 days after the sale, assignment, or other transfer of the servicing of a qualified education loan;

b. Notify affected qualified education loan borrowers of the sale, assignment, or other transfer of the servicing of a qualified education loan at least seven days before the next payment on the loan is due. The notice shall include (i) the identity of the new qualified education loan servicer; (ii) the effective date of the transfer of the borrower's qualified education loan to the new loan servicer; (iii) the date on which the existing loan servicer will no longer accept payments; and (iv) the contact information for the new loan servicer; and

c. Adopt policies and procedures to verify that the new qualified education loan servicer has received all records regarding the qualified education loan borrower, the account of the qualified education loan borrower, and the qualified education loan of the borrower, including the repayment status of the qualified education loan borrower and any benefits associated with the qualified education loan of the borrower.

§6.2-2612. Reporting requirements.

A. Within 15 days following the occurrence of any of the following events, a licensee shall file a written report with the Commission describing such event and its expected impact upon the business of the licensee:

1. The filing of bankruptcy, reorganization, or receivership proceedings by or against the licensee;

2. The institution of administrative or regulatory proceedings against the licensee by any governmental authority;

3. Any felony indictment of the licensee or any of its members, directors, senior officers, trustees, or principals;

4. Any felony conviction of the licensee or any of its members, directors, senior officers, trustees, or principals; and

5. Such other events as the Commission may prescribe by regulation.

B. Each licensee shall file periodic written reports with the Commissioner or the Registry containing such information as the Commissioner may require concerning the licensee's business and operations. Reports shall be in the form and be submitted with such frequency and by such dates as may be prescribed by the Commissioner.

§6.2-2613. Investigations; examinations.

A. The Commission may, as often as it deems necessary, investigate and examine the affairs, business, premises, and records of any person licensed or required to be licensed under this chapter insofar as they pertain to any business for which a license is required by this chapter. Examinations of licensees shall be conducted at least once in each three-year period. In the course of such investigations and examinations, the owners, members, officers, directors, partners, trustees, and employees of the person being investigated or examined shall, upon demand of the person making such investigation or examination, afford full access to all premises, books, records, and information that the person making such investigation or examination deems necessary.

B. Examinations under this section may be conducted in conjunction with examinations to be performed by representatives of agencies of the federal government or another state. In lieu of conducting an examination, the Commission may accept the examination report of the federal government or another state.

§6.2-2614. Annual fees.

A. In order to defray the costs of their examination, supervision, and regulation, every licensee under this chapter shall pay an annual fee calculated in accordance with a schedule set by the Commission. All such fees shall be assessed on or before April 1 for every calendar year. All such fees shall be paid by the licensee to the State Treasurer on or before May 1 following each assessment.

B. In addition to the annual fee prescribed in subsection A, when it becomes necessary to examine or investigate the books and records of a licensee under this chapter at a location outside the Commonwealth, the licensee shall be liable for and shall pay to the Commission within 30 days of the presentation of an itemized statement the actual travel and reasonable living expenses incurred on account of its examination, supervision, and regulation or shall pay a reasonable per diem rate approved by the Commission.

§6.2-2615. Suspension or revocation of license.

A. The Commission may suspend or revoke any license issued under this chapter upon any of the following grounds:

1. Any ground for denial of a license under this chapter;

2. Any violation of the provisions of this chapter or regulations adopted by the Commission pursuant thereto, or a violation of any other law or regulation applicable to the conduct of the licensee's business;

3. A course of conduct consisting of the failure to perform written agreements with qualified education loan borrowers;

4. Failure to account for funds received or disbursed to the satisfaction of the person supplying or receiving qualified education loan funds;

5. Conviction of any felony or of a misdemeanor involving fraud, misrepresentation, or deceit;

6. Entry of a judgment against the licensee involving fraud, misrepresentation, or deceit;

7. Entry of a federal or state administrative order against the licensee for violation of any law or regulation applicable to the conduct of the licensee's business;

8. Refusal to permit an investigation or examination by the Commission;

9. Failure to pay any fee or assessment imposed by this chapter; or

10. Failure to comply with any order of the Commission.

B. For the purposes of this section, acts of any senior officer, director, member, partner, trustee, or principal shall be deemed acts of the licensee.

§6.2-2616. Notice of proposed suspension or revocation.

The Commission shall not revoke or suspend the license of any licensee upon any of the grounds set forth in §6.2-2615 until it has given the licensee (i) 21 days' notice in writing of the reasons for the proposed revocation or suspension and (ii) an opportunity to introduce evidence and be heard. The notice shall be sent by certified mail to the principal place of business of such licensee and shall state with particularity the grounds for the contemplated action. Within 14 days of mailing the notice, the licensee named therein may file with the Clerk of the Commission a written request for a hearing. If a hearing is requested, the Commission shall not suspend or revoke the license except based upon findings made at such hearing. The hearing shall be conducted in accordance with the Commission's Rules.

§6.2-2617. Cease and desist orders.

A. If the Commission determines that any person has violated any provision of this chapter or any regulation adopted by the Commission pursuant thereto, or violated any other law or regulation applicable to the conduct of a licensee's business, the Commission may, upon 21 days' notice in writing, order such person to cease and desist from such practices and to comply with the provisions of this chapter and other applicable laws and regulations. The notice shall be sent by certified mail to the principal place of business of such person or other address authorized under §12.1-19.1 and shall state the grounds for the contemplated action.

B. Within 14 days of mailing the notice, the person named therein may file with the clerk of the Commission a written request for a hearing. If a hearing is requested, the Commission shall not issue a cease and desist order except on the basis of findings made at the hearing. The hearing shall be conducted in accordance with the Commission's Rules. The Commission may enforce compliance with any order issued under this section by imposition and collection of such fines and penalties as may be prescribed by law.

§6.2-2618. Civil penalties.

The Commission may impose a civil penalty not exceeding $2,500 upon any person who it determines, in proceedings commenced in accordance with the Commission's Rules, has violated any of the provisions of this chapter or regulations adopted by the Commission pursuant thereto or violated any other law or regulation applicable to conduct of the person's business. For the purposes of this section, each separate violation shall be subject to the civil penalty prescribed in this section, and each day that an unlicensed person engages in the business of a qualified education loan servicer shall constitute a separate violation.

§6.2-2619. Private cause of action.

A. A qualified education loan servicer shall:

1. Comply with this chapter.

2. Comply with all applicable federal laws related to qualified education loan servicing, as from time to time amended, and the regulations promulgated thereunder.

B. Any person who suffers damage as a result of the failure of a qualified education loan servicer to comply with the requirements of subdivisions A 1 and 2 may bring an action against that qualified education loan servicer to recover or obtain any of the following:

1. Actual damages, but in no case shall the total award of damages be less than $500 per violation;

2. An order enjoining the methods, acts, or practices;

3. Restitution of property;

4. Punitive damages;

5. Attorney fees; and

6. Any other relief the court deems proper.

C. In addition to any other remedies provided by this section or otherwise provided by law, whenever it is proven by a preponderance of the evidence that a qualified education loan servicer has engaged in conduct that substantially interferes with a borrower's right to (i) an alternative payment arrangement; (ii) loan forgiveness, cancellation, or discharge; or (iii) any other financial benefit as established under the terms of a borrower's promissory note or under the Higher Education Act of 1965, 20 U.S.C. §1070a et seq., as amended from time to time, and regulations promulgated thereunder, the court shall award treble actual damages to the plaintiff, but in no case shall the award of damages be less than $1,500 per violation.

D. The remedies provided in this section are not intended to be the exclusive remedies available to the qualified education loan borrower, and a qualified education loan borrower shall not be required to exhaust any administrative remedies established pursuant to this chapter or any other applicable law prior to proceeding under this section.

§6.2-2620. Investigating and restraining prohibited acts.

A. Notwithstanding the provisions of §59.1-199, whenever the Attorney General has reasonable cause to believe that any person has engaged in, or is engaging in, or is about to engage in any violation of this chapter, the Attorney General is empowered to issue a civil investigative demand. The provisions of §59.1-9.10 shall apply mutatis mutandis to civil investigative demands issued pursuant to this section.

B. Notwithstanding any other provisions of law to the contrary, the Attorney General may cause an action to be brought in the appropriate circuit court in the name of the Commonwealth to enjoin any violation of this chapter. The circuit court having jurisdiction may enjoin such violations notwithstanding the existence of an adequate remedy at law. In any action under this section, it shall not be necessary that damages be proved.

C. The circuit courts are authorized to issue temporary or permanent injunctions to restrain and prevent violations of this chapter.

§6.2-2621. Violation of the Virginia Consumer Protection Act.

Notwithstanding the provisions of §59.1-199, any violation of the provisions of this chapter shall constitute a prohibited practice in accordance with §59.1-200 and shall be subject to any and all of the enforcement provisions of the Virginia Consumer Protection Act (§59.1-196 et seq.).

§6.2-2622. Regulations.

The Commission shall adopt such regulations as it deems appropriate to effect the purposes of this chapter. Before adopting any such regulation, the Commission shall give reasonable notice of its content and shall afford interested parties an opportunity to be heard, in accordance with the Commission's Rules.

§19.2-389. (Effective until January 1, 2021) Dissemination of criminal history record information.

A. Criminal history record information shall be disseminated, whether directly or through an intermediary, only to:

1. Authorized officers or employees of criminal justice agencies, as defined by §9.1-101, for purposes of the administration of criminal justice and the screening of an employment application or review of employment by a criminal justice agency with respect to its own employees or applicants, and dissemination to the Virginia Parole Board, pursuant to this subdivision, of such information on all state-responsible inmates for the purpose of making parole determinations pursuant to subdivisions 1, 2, 3, and 5 of §53.1-136 shall include collective dissemination by electronic means every 30 days. For purposes of this subdivision, criminal history record information includes information sent to the Central Criminal Records Exchange pursuant to §§37.2-819 and 64.2-2014 when disseminated to any full-time or part-time employee of the State Police, a police department or sheriff's office that is a part of or administered by the Commonwealth or any political subdivision thereof, and who is responsible for the prevention and detection of crime and the enforcement of the penal, traffic or highway laws of the Commonwealth for the purposes of the administration of criminal justice;

2. Such other individuals and agencies that require criminal history record information to implement a state or federal statute or executive order of the President of the United States or Governor that expressly refers to criminal conduct and contains requirements or exclusions expressly based upon such conduct, except that information concerning the arrest of an individual may not be disseminated to a noncriminal justice agency or individual if an interval of one year has elapsed from the date of the arrest and no disposition of the charge has been recorded and no active prosecution of the charge is pending;

3. Individuals and agencies pursuant to a specific agreement with a criminal justice agency to provide services required for the administration of criminal justice pursuant to that agreement which shall specifically authorize access to data, limit the use of data to purposes for which given, and ensure the security and confidentiality of the data;

4. Individuals and agencies for the express purpose of research, evaluative, or statistical activities pursuant to an agreement with a criminal justice agency that shall specifically authorize access to data, limit the use of data to research, evaluative, or statistical purposes, and ensure the confidentiality and security of the data;

5. Agencies of state or federal government that are authorized by state or federal statute or executive order of the President of the United States or Governor to conduct investigations determining employment suitability or eligibility for security clearances allowing access to classified information;

6. Individuals and agencies where authorized by court order or court rule;

7. Agencies of any political subdivision of the Commonwealth, public transportation companies owned, operated or controlled by any political subdivision, and any public service corporation that operates a public transit system owned by a local government for the conduct of investigations of applicants for employment, permit, or license whenever, in the interest of public welfare or safety, it is necessary to determine under a duly enacted ordinance if the past criminal conduct of a person with a conviction record would be compatible with the nature of the employment, permit, or license under consideration;

7a. Commissions created pursuant to the Transportation District Act of 1964 (§33.2-1900 et seq.) of Title 33.2 and their contractors, for the conduct of investigations of individuals who have been offered a position of employment whenever, in the interest of public welfare or safety and as authorized in the Transportation District Act of 1964, it is necessary to determine if the past criminal conduct of a person with a conviction record would be compatible with the nature of the employment under consideration;

8. Public or private agencies when authorized or required by federal or state law or interstate compact to investigate (i) applicants for foster or adoptive parenthood or (ii) any individual, and the adult members of that individual's household, with whom the agency is considering placing a child or from whom the agency is considering removing a child due to abuse or neglect, on an emergency, temporary, or permanent basis pursuant to §§ 63.2-901.1 and 63.2-1505, subject to the restriction that the data shall not be further disseminated to any party other than a federal or state authority or court as may be required to comply with an express requirement of law;

9. To the extent permitted by federal law or regulation, public service companies as defined in §56-1, for the conduct of investigations of applicants for employment when such employment involves personal contact with the public or when past criminal conduct of an applicant would be incompatible with the nature of the employment under consideration;

10. The appropriate authority for purposes of granting citizenship and for purposes of international travel, including, but not limited to, issuing visas and passports;

11. A person requesting a copy of his own criminal history record information as defined in §9.1-101 at his cost, except that criminal history record information shall be supplied at no charge to a person who has applied to be a volunteer with (i) a Virginia affiliate of Big Brothers/Big Sisters of America; (ii) a volunteer fire company; (iii) the Volunteer Emergency Families for Children; (iv) any affiliate of Prevent Child Abuse, Virginia; (v) any Virginia affiliate of Compeer; or (vi) any board member or any individual who has been offered membership on the board of a Crime Stoppers, Crime Solvers or Crime Line program as defined in §15.2-1713.1;

12. Administrators and board presidents of and applicants for licensure or registration as a child welfare agency as defined in §63.2-100 for dissemination to the Commissioner of Social Services' representative pursuant to §63.2-1702 for the conduct of investigations with respect to employees of and volunteers at such facilities, caretakers, and other adults living in family day homes or homes approved by family day systems, and foster and adoptive parent applicants of private child-placing agencies, pursuant to §§63.2-1719, 63.2-1720, 63.2-1720.1, 63.2-1721, and 63.2-1721.1, subject to the restriction that the data shall not be further disseminated by the facility or agency to any party other than the data subject, the Commissioner of Social Services' representative or a federal or state authority or court as may be required to comply with an express requirement of law for such further dissemination;

13. The school boards of the Commonwealth for the purpose of screening individuals who are offered or who accept public school employment and those current school board employees for whom a report of arrest has been made pursuant to §19.2-83.1;

14. The Virginia Lottery for the conduct of investigations as set forth in the Virginia Lottery Law (§58.1-4000 et seq.), and the Department of Agriculture and Consumer Services for the conduct of investigations as set forth in Article 1.1:1 (§18.2-340.15 et seq.) of Chapter 8 of Title 18.2;

15. Licensed nursing homes, hospitals and home care organizations for the conduct of investigations of applicants for compensated employment in licensed nursing homes pursuant to §32.1-126.01, hospital pharmacies pursuant to §32.1-126.02, and home care organizations pursuant to § 32.1-162.9:1, subject to the limitations set out in subsection E;

16. Licensed assisted living facilities and licensed adult day care centers for the conduct of investigations of applicants for compensated employment in licensed assisted living facilities and licensed adult day care centers pursuant to §63.2-1720, subject to the limitations set out in subsection F;

17. The Virginia Alcoholic Beverage Control Authority for the conduct of investigations as set forth in §4.1-103.1;

18. The State Board of Elections and authorized officers and employees thereof and general registrars appointed pursuant to §24.2-110 in the course of conducting necessary investigations with respect to voter registration, limited to any record of felony convictions;

19. The Commissioner of Behavioral Health and Developmental Services for those individuals who are committed to the custody of the Commissioner pursuant to §§19.2-169.2, 19.2-169.6, 19.2-182.2, 19.2-182.3, 19.2-182.8, and 19.2-182.9 for the purpose of placement, evaluation, and treatment planning;

20. Any alcohol safety action program certified by the Commission on the Virginia Alcohol Safety Action Program for (i) assessments of habitual offenders under §46.2-360, (ii) interventions with first offenders under §18.2-251, or (iii) services to offenders under §18.2-51.4, 18.2-266, or 18.2-266.1;

21. Residential facilities for juveniles regulated or operated by the Department of Social Services, the Department of Education, or the Department of Behavioral Health and Developmental Services for the purpose of determining applicants' fitness for employment or for providing volunteer or contractual services;

22. The Department of Behavioral Health and Developmental Services and facilities operated by the Department for the purpose of determining an individual's fitness for employment pursuant to departmental instructions;

23. Pursuant to §22.1-296.3, the governing boards or administrators of private elementary or secondary schools which are accredited pursuant to §22.1-19 or a private organization coordinating such records information on behalf of such governing boards or administrators pursuant to a written agreement with the Department of State Police;

24. Public institutions of higher education and nonprofit private institutions of higher education for the purpose of screening individuals who are offered or accept employment;

25. Members of a threat assessment team established by a local school board pursuant to §22.1-79.4, by a public institution of higher education pursuant to §23.1-805, or by a private nonprofit institution of higher education, for the purpose of assessing or intervening with an individual whose behavior may present a threat to safety; however, no member of a threat assessment team shall redisclose any criminal history record information obtained pursuant to this section or otherwise use any record of an individual beyond the purpose that such disclosure was made to the threat assessment team;

26. Executive directors of community services boards or the personnel director serving the community services board for the purpose of determining an individual's fitness for employment, approval as a sponsored residential service provider, or permission to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver pursuant to §§37.2-506 and 37.2-607;

27. Executive directors of behavioral health authorities as defined in §37.2-600 for the purpose of determining an individual's fitness for employment, approval as a sponsored residential service provider, or permission to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver pursuant to §§37.2-506 and 37.2-607;

28. The Commissioner of Social Services for the purpose of locating persons who owe child support or who are alleged in a pending paternity proceeding to be a putative father, provided that only the name, address, demographics and social security number of the data subject shall be released;

29. Authorized officers or directors of agencies licensed pursuant to Article 2 (§37.2-403 et seq.) of Chapter 4 of Title 37.2 by the Department of Behavioral Health and Developmental Services for the purpose of determining if any applicant who accepts employment in any direct care position or requests approval as a sponsored residential service provider or permission to enter into a shared living arrangement with a person receiving medical assistance services pursuant to a waiver has been convicted of a crime that affects his fitness to have responsibility for the safety and well-being of individuals with mental illness, intellectual disability, or substance abuse pursuant to §§37.2-416, 37.2-506, and 37.2-607;

30. The Commissioner of the Department of Motor Vehicles, for the purpose of evaluating applicants for and holders of a motor carrier certificate or license subject to the provisions of Chapters 20 (§46.2-2000 et seq.) and 21 (§46.2-2100 et seq.) of Title 46.2;

31. The chairmen of the Committees for Courts of Justice of the Senate or the House of Delegates for the purpose of determining if any person being considered for election to any judgeship has been convicted of a crime;

32. Heads of state agencies in which positions have been identified as sensitive for the purpose of determining an individual's fitness for employment in positions designated as sensitive under Department of Human Resource Management policies developed pursuant to §2.2-1201.1;

33. The Office of the Attorney General, for all criminal justice activities otherwise permitted under subdivision A 1 and for purposes of performing duties required by the Civil Commitment of Sexually Violent Predators Act (§37.2-900 et seq.);

34. Shipyards, to the extent permitted by federal law or regulation, engaged in the design, construction, overhaul, or repair of nuclear vessels for the United States Navy, including their subsidiary companies, for the conduct of investigations of applications for employment or for access to facilities, by contractors, leased laborers, and other visitors;

35. Any employer of individuals whose employment requires that they enter the homes of others, for the purpose of screening individuals who apply for, are offered, or have accepted such employment;

36. Public agencies when and as required by federal or state law to investigate (i) applicants as providers of adult foster care and home-based services or (ii) any individual with whom the agency is considering placing an adult on an emergency, temporary, or permanent basis pursuant to § 63.2-1601.1, subject to the restriction that the data shall not be further disseminated by the agency to any party other than a federal or state authority or court as may be required to comply with an express requirement of law for such further dissemination, subject to limitations set out in subsection G;

37. The Department of Medical Assistance Services, or its designee, for the purpose of screening individuals who, through contracts, subcontracts, or direct employment, volunteer, apply for, are offered, or have accepted a position related to the provision of transportation services to enrollees in the Medicaid Program or the Family Access to Medical Insurance Security (FAMIS) Program, or any other program administered by the Department of Medical Assistance Services;

38. The State Corporation Commission for the purpose of investigating individuals who are current or proposed members, senior officers, directors, and principals of an applicant or person licensed under Chapter 16 (§6.2-1600 et seq.) or, Chapter 19 (§6.2-1900 et seq.), or Chapter 26 (§6.2-2600 et seq.) of Title 6.2. Notwithstanding any other provision of law, if an application is denied based in whole or in part on information obtained from the Central Criminal Records Exchange pursuant to Chapter 16 or, 19, or 26 of Title 6.2, the Commissioner of Financial Institutions or his designee may disclose such information to the applicant or its designee;

39. The Department of Professional and Occupational Regulation for the purpose of investigating individuals for initial licensure pursuant to §54.1-2106.1;

40. The Department for Aging and Rehabilitative Services and the Department for the Blind and Vision Impaired for the purpose of evaluating an individual's fitness for various types of employment and for the purpose of delivering comprehensive vocational rehabilitation services pursuant to Article 11 (§51.5-170 et seq.) of Chapter 14 of Title 51.5 that will assist the individual in obtaining employment;

41. Bail bondsmen, in accordance with the provisions of § 19.2-120;

42. The State Treasurer for the purpose of determining whether a person receiving compensation for wrongful incarceration meets the conditions for continued compensation under §8.01-195.12;

43. The Department of Social Services and directors of local departments of social services for the purpose of screening individuals seeking to enter into a contract with the Department of Social Services or a local department of social services for the provision of child care services for which child care subsidy payments may be provided;

44. The Department of Juvenile Justice to investigate any parent, guardian, or other adult members of a juvenile's household when completing a predispositional or postdispositional report required by § 16.1-273 or a Board of Juvenile Justice regulation promulgated pursuant to § 16.1-233; and

45. Other entities as otherwise provided by law.

Upon an ex parte motion of a defendant in a felony case and upon the showing that the records requested may be relevant to such case, the court shall enter an order requiring the Central Criminal Records Exchange to furnish the defendant, as soon as practicable, copies of any records of persons designated in the order on whom a report has been made under the provisions of this chapter.

Notwithstanding any other provision of this chapter to the contrary, upon a written request sworn to before an officer authorized to take acknowledgments, the Central Criminal Records Exchange, or the criminal justice agency in cases of offenses not required to be reported to the Exchange, shall furnish a copy of conviction data covering the person named in the request to the person making the request; however, such person on whom the data is being obtained shall consent in writing, under oath, to the making of such request. A person receiving a copy of his own conviction data may utilize or further disseminate that data as he deems appropriate. In the event no conviction data is maintained on the data subject, the person making the request shall be furnished at his cost a certification to that effect.

B. Use of criminal history record information disseminated to noncriminal justice agencies under this section shall be limited to the purposes for which it was given and may not be disseminated further.

C. No criminal justice agency or person shall confirm the existence or nonexistence of criminal history record information for employment or licensing inquiries except as provided by law.

D. Criminal justice agencies shall establish procedures to query the Central Criminal Records Exchange prior to dissemination of any criminal history record information on offenses required to be reported to the Central Criminal Records Exchange to ensure that the most up-to-date disposition data is being used. Inquiries of the Exchange shall be made prior to any dissemination except in those cases where time is of the essence and the normal response time of the Exchange would exceed the necessary time period. A criminal justice agency to whom a request has been made for the dissemination of criminal history record information that is required to be reported to the Central Criminal Records Exchange may direct the inquirer to the Central Criminal Records Exchange for such dissemination. Dissemination of information regarding offenses not required to be reported to the Exchange shall be made by the criminal justice agency maintaining the record as required by §15.2-1722.

E. Criminal history information provided to licensed nursing homes, hospitals and to home care organizations pursuant to subdivision A 15 shall be limited to the convictions on file with the Exchange for any offense specified in §§32.1-126.01, 32.1-126.02, and 32.1-162.9:1.

F. Criminal history information provided to licensed assisted living facilities and licensed adult day care centers pursuant to subdivision A 16 shall be limited to the convictions on file with the Exchange for any offense specified in §63.2-1720.

G. Criminal history information provided to public agencies pursuant to subdivision A 36 shall be limited to the convictions on file with the Exchange for any offense set forth in clause (i) of the definition of barrier crime in §19.2-392.02.

H. Upon receipt of a written request from an employer or prospective employer, the Central Criminal Records Exchange, or the criminal justice agency in cases of offenses not required to be reported to the Exchange, shall furnish at the employer's cost a copy of conviction data covering the person named in the request to the employer or prospective employer making the request, provided that the person on whom the data is being obtained has consented in writing to the making of such request and has presented a photo-identification to the employer or prospective employer. In the event no conviction data is maintained on the person named in the request, the requesting employer or prospective employer shall be furnished at his cost a certification to that effect. The criminal history record search shall be conducted on forms provided by the Exchange.

I. Nothing in this section shall preclude the dissemination of a person's criminal history record information pursuant to the rules of court for obtaining discovery or for review by the court.

§19.2-389. (Effective January 1, 2021) Dissemination of criminal history record information.