DOB: Persels & Associates - Stipulation and Agreement

 
STATE OF CONNECTICUT
DEPARTMENT OF BANKING
 
 

IN THE MATTER OF:

PERSELS & ASSOCIATES, LLC,                               

                         Respondent.

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STIPULATION AND AGREEMENT

WHEREAS, the Banking Commissioner (“Commissioner”) is charged with the administration of Sections 36a-671 to 36a-671e, inclusive, of the Connecticut General Statutes contained in Part II of Chapter 669 of the Connecticut General Statutes, “Debt Adjusters and Debt Negotiation”

WHEREAS, Persels & Associates, LLC (“Persels”) is a law firm organized as a limited liability company, with a principal place of business at 29 Susquehanna Avenue, Suite 400, Towson, Maryland;

WHEREAS, Persels filed a petition on March 21, 2012 in accordance with Section 4-176 of the Connecticut General Statutes and Section 36a-1-64(1)(C) of the Regulations of Connecticut State Agencies, seeking a declaratory ruling from the Commissioner concerning the application of the attorney exemption to the debt negotiation statutes set forth in Section 36a-671c(1) of the Connecticut General Statutes;

WHEREAS, in a declaratory ruling dated September 11, 2012, the Commissioner rejected Persels’ position and concluded that Persels would require licensure by the Department under Sections 36a-671 to 36a-671d, inclusive, of the Connecticut General Statutes;

WHEREAS, Persels filed an appeal in the Superior Court on October 3, 2012, in accordance with Section 4-183 of the Connecticut General Statutes, seeking judicial review of the Commissioner’s September 11, 2012 declaratory ruling.  See Persels and Associates, LLC v. State of Connecticut Department of Banking, HHB-CV12-6017849-S (“Administrative Appeal”);

WHEREAS, on March 28, 2014, the trial court (Prescott, J.) ruled in favor of the Department in the Administrative Appeal.  Persels appealed the court’s decision to the Connecticut Appellate Court;

WHEREAS, on August 5, 2014, the Connecticut Supreme Court transferred the appeal to itself pursuant to Connecticut Practice Book §65-1;

WHEREAS, on November 2, 2012, the Commissioner commenced a contested case against Persels by issuing a Temporary Order to Cease and Desist, Order to Make Restitution, Notice of Intent to Issue Order to Cease and Desist, Notice of Intent to Impose Civil Penalty and Notice of Right to Hearing (“Notice”), alleging that Persels engaged in debt negotiation in this state without obtaining the required license, in violation of Section 36a-671(b) of the Connecticut General Statutes;

WHEREAS, on July 1, August 8, September 24 and December 3, 2014, the Department and Persels presented evidence and testimony in an administrative hearing concerning the allegations made in the Notice, which matter currently remains pending;

WHEREAS, on September 15, 2015, the Connecticut Supreme Court issued its final decision in Persels and Associates, LLC v. Banking Commissioner, No. S.C. 19359, holding that the attorney exemption set forth in Section 36a-671c(1) of the Connecticut General Statutes violated the constitutional separation of powers provisions;

WHEREAS, the Connecticut Supreme Court also held that “the separation of powers provision of the state constitution requires that the commissioner presume, for the purposes of § 36a-671c, that a Connecticut attorney who purports to provide debt negotiation services within the context of an attorney-client relationship is actually engaged in the practice of law,” but the “presumption may be overcome where, for example, the commissioner determines that the Connecticut attorney has failed to (1) exercise meaningful oversight over debt negotiation staff, (2) provide any genuine legal advice or other legal services, and/or (3) maintain a bona fide attorney-client relationship with the client.  In such cases, the person or persons providing debt negotiation services would not qualify for the attorney exemption” (collectively, “Practice of Law Test”);
 
WHEREAS, Persels continues to assert that it is exempt from regulation by the Commissioner because it is engaged in the practice of law and evidence presented in the administrative hearing establishes that it satisfies the Practice of Law Test set forth by the Connecticut Supreme Court;

WHEREAS, the Commissioner believes, without making any findings of fact or conclusions of law pursuant to Section 4-180 of the Connecticut General Statutes, that the evidence and testimony in the administrative hearing establishes that, on at least one occasion, Persels failed to satisfy the Practice of Law Test and, therefore, engaged in debt negotiation without a license in violation of Section 36a-671 of the Connecticut General Statutes;

WHEREAS, Persels represents that it is no longer active in the State of Connecticut, has ceased to represent any Connecticut clients and is close to winding up its affairs nationally such that it will no longer be engaged in representing consumer clients seeking relief from debt;

WHEREAS, Section 4-177(c) of the Connecticut General Statutes and Section 36a-1-55(a) of the Regulations of the Connecticut State Agencies provides that a contested case may be resolved by stipulation or agreed settlement, unless precluded by law;

WHEREAS, the Commissioner and Persels desire to settle the matters described herein and voluntarily enter into this Stipulation and Agreement without any admission by either party, acknowledging that this Stipulation and Agreement is in lieu of any court action or further administrative proceedings adjudicating any issue of fact or law alleged in the Notice;

AND WHEREAS, Persels, through its execution of this Stipulation and Agreement, voluntarily waives any rights it may have to seek judicial review or otherwise challenge or contest the terms and conditions of this Stipulation and Agreement.

NOW, THEREFORE, in consideration of the foregoing recitals, the parties hereby mutually agree as follows:

1. This Stipulation and Agreement resolves all matters alleged by the Commissioner in the Notice;
2. Concerning the contested case initiated by the Commissioner via the Notice, the parties hereby waive all further administrative proceedings provided for in the Uniform Administrative Procedure Act and the Department’s contested case regulations (Sections 36a-1-19 to 36a-1-57, inclusive, of the Regulations of Connecticut State Agencies) and judicial review by any court;
3.
Without waiving any defense or right to challenge the Commissioner’s jurisdiction, Persels agrees to notify the Commissioner, in writing, thirty (30) days prior to engaging or offering to engage in debt negotiation in Connecticut in the future;
4.
Execution of this Stipulation and Agreement is without prejudice to the right of the Commissioner to take enforcement action against Persels if any representation made by Persels and reflected herein is determined to be untrue or if Persels fails to comply with any term or condition stated herein.  Further, Persels reserves its right to challenge any such action to the full extent allowed by law; and
5.
This Stipulation and Agreement shall become binding when executed by Persels and the Commissioner.

IN WITNESS WHEREOF, the undersigned have executed this Stipulation and Agreement on the dates indicated.


STATE OF CONNECTICUT
DEPARTMENT OF BANKING


________/s/_________                                    1/4/2016
Jorge L. Perez                                                 Date
Banking Commissioner



PERSELS & ASSOCIATES, LLC


________/s/_________                                    1/2/2016
Neil Ruther, Esq.                                             Date
Managing Member

                                          


Administrative Orders and Settlements