Oklahoma 2022 Regular Session

Oklahoma Senate Bill SB1743 Compare Versions

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4-An Act
5-ENROLLED SENATE
29+HOUSE OF REPRESENTATIVES - FLOOR VERSION
30+
31+STATE OF OKLAHOMA
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33+2nd Session of the 58th Legislature (2022)
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35+ENGROSSED SENATE
636 BILL NO. 1743 By: Leewright of the Senate
737
838 and
939
1040 Bashore of the House
1141
1242
1343
1444
1545 An Act relating to financial protection pr oducts;
1646 defining terms; allowing for the issuance of motor
1747 vehicle financial protection pr oducts; requiring the
1848 issuance of the protection product to be a separate
1949 charge; prohibiting the requirement of a protection
2050 product as a term for sale o r lease; allowing for the
2151 use of debt waivers; providing the conditions for a
2252 retail seller or creditor to offer debt waivers;
2353 providing the contractual liabilities of a creditor
2454 issuing a debt waiver; providing for the cancelation
2555 or termination of debt waivers under certain
2656 conditions; providing the procedures the borrower
2757 shall follow to obtain a debt waiver ben efit;
2858 authorizing refund in the event of a cancelation of a
2959 debt waiver under certain conditions; providing
3060 exemptions for certain offers of debt waivers;
3161 providing requirements for offering vehicle value
3262 protection agreements; requiring a contract holder of
3363 a vehicle value protection agreement to provide copy
3464 of agreement; requiring contract holders to follow
3565 certain fiduciary requirements to ensure faithful
3666 performance; requiring agreements to disclose certain
3767 information; providing for promulgation of rules;
3868 providing penalties for certain violations;
3969 establishing that motor vehicle financial protection
4070 products shall not be insurance ; providing for
4171 codification; and providing an effective date.
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45-SUBJECT: Financial protection products
75+BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
4676
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48-ENR. S. B. NO. 1743 Page 2
49-BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
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51103 SECTION 1. NEW LAW A new section of law to be codified
52104 in the Oklahoma Statutes as Section 140.2 of Title 15, unless there
53105 is created a duplication in numbering, reads as follows:
54-
55106 As used in this act:
56-
57107 1. "Commercial" means a transaction wherein the motor vehicle
58108 will primarily be used for business purposes rather than per sonal;
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60109 2. "Commissioner" means the Insurance Commissioner;
61-
62110 3. "Consumer" means an individual purchaser of a motor vehicle
63111 or borrower under a finan ce agreement, and includes a borrower or
64112 contract holder as herein defined as applicable;
65-
66113 4. "Finance agreement" means a loan, retail installment sales
67114 contract, or lease for the purchase, refinancing, or lease of a
68115 motor vehicle;
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70116 5. "Free look period" means the period of time from the
71117 effective date of the motor vehicle financial protection product
72118 until the date the motor vehicle financial protection product may be
73119 canceled without penalty, fees, or costs. This period of time shall
74120 not be shorter than thirty (30) days;
75-
76121 6. "Insurer" means an insurance company licensed, registered,
77122 or otherwise authorized to issue contractual liability insurance
78123 under the insurance laws of t his state;
79-
80124 7. "Motor vehicle" means self-propelled or towed vehicles
81125 designed for personal or commercial use including, but not limited
82126 to, automobiles, trucks, motorcycles, recreational ve hicles, all-
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83154 terrain vehicles, snowmobiles, campers, boards, person al watercraft,
84155 and related trailers;
85-
86156 8. "Motor vehicle financial protection product" means an
87157 agreement defined herein that protects a consumer's financial
88158 interest in his or her current or future motor vehicle and includes,
89159 but is not limited to, debt waiver and vehicle value protection
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91-ENR. S. B. NO. 1743 Page 3
92160 agreements. A motor vehicle financial protection product shall not
93161 mean a service warranty or vehicle protection product warranty ; and
94-
95162 9. "Person" means an individual, company , association,
96163 organization, partnersh ip, business trust, corporation, and every
97164 form of legal entity.
98-
99165 SECTION 2. NEW LAW A new section of law to be codified
100166 in the Oklahoma Statutes as Section 140.3 of Title 15, unless there
101167 is created a duplication in numbering, reads as follows:
102-
103168 A. Motor vehicle financial protection products may be offer ed,
104169 sold, or given to consumers in t his state in compliance with this
105170 act.
106-
107171 B. Notwithstanding any other provision of law, any amoun t
108172 charged or financed for a motor vehicle fi nancial protection product
109173 is an authorized charge that must be separately stated and not be
110174 considered a financial charge or interest.
111-
112175 C. Neither the extension of credit, the terms of credit, nor
113176 the terms of the related mo tor vehicle sale or lease shall be
114177 conditioned upon the consumer's payment for or financing of any
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115205 charge for a motor vehicle financial protection product. However,
116206 motor vehicle financial protection products may be discounted or
117207 given at no charge in connection with the purchase of other non -
118208 credit related goods or services.
119-
120209 SECTION 3. NEW LAW A new section of law to be codified
121210 in the Oklahoma Statutes as Section 140.4 of Title 15, unless there
122211 is created a duplication in numberin g, reads as follows:
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124212 A. As used in this section:
125-
126213 1. "Administrator" means a person, other than an insurer or
127214 creditor that performs administrativ e or operational functions
128215 pursuant to debt waiver programs;
129-
130216 2. "Borrower" means a debtor, retail buyer, or lessee, under a
131217 finance agreement;
132-
133218 3. "Creditor" means:
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135-ENR. S. B. NO. 1743 Page 4
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137219 a. the lender in a loan or credit transaction,
138-
139220 b. the lessor in a lease trans action,
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141221 c. any retail seller of motor vehicles,
142-
143222 d. the seller in commercial retail installment
144223 transactions, or
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146224 e. the assignees of any of the foregoing to whom the
147225 credit obligation is payable; and
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149226 4. "Debt waiver" includes, but is not limited to:
150-
151227 a. "guaranteed asset protection waivers" or "GAP waivers"
152228 means a contractual agre ement wherein a creditor
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153256 agrees, with or without a separate charge, to cancel
154257 or waive all or part of amounts due on a borrowe r's
155258 financial agreement in the event of a total physi cal
156259 damage loss or unrecovered theft of the motor vehicle,
157260 which an agreement shall be part of, or as a separate
158261 addendum to, the financial agreement. A G AP waiver
159262 may also provide, with or without a separate charge, a
160263 benefit that waives an amount or provides a borrower
161264 with a credit towards the purchase of a replacement
162265 motor vehicle,
163-
164266 b. "excess wear and use waiver" means a contractual
165267 agreement wherein a creditor agrees, with or without a
166268 separate charge, to cancel or waive all or part of
167269 amounts that may becom e due under a borrower's lease
168270 agreement as a result of excessive wear and use of a
169271 motor vehicle, which an agreement shall be part of, or
170272 as a separate addendum to, the lease agreement.
171273 Excess wear and use waivers may also cancel or waive
172274 amounts due for excess mileage, and
173-
174275 c. other products as approved by the Insurance
175276 Commissioner.
176-
177277 B. As required for offering debt waivers:
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179-ENR. S. B. NO. 1743 Page 5
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181278 1. A retail seller shall insure its debt wa iver obligations
182279 under a contractual liability or other insurance p olicy issued by an
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183307 insurer. A creditor other than retail sellers may insure its debt
184308 waiver obligations under a contractual liability policy or other
185309 such policy issued by an insurer. A ny such insurance policy may be
186310 directly obtained by a creditor or retail seller or may be obtained
187311 by an administrator to cover a creditor's or retail seller's
188312 obligations. However, retail sellers that are lessors on motor
189313 vehicles are not required to insure obligations related to debt
190314 waivers on such leased motor vehicles;
191-
192315 2. The debt waiver remains a part of the finance agreement upon
193316 the assignment, sale, or transfer of such finance agreement by the
194317 creditor;
195-
196318 3. Any creditor that offers a debt waiver shall report the sale
197319 of, and subsequently forward the funds due to, the designated party
198320 or parties; and
199-
200321 4. Funds received or held by a credito r or administrator that
201322 belong to an insurer, creditor, or administrator shall be held by
202323 such creditor or administrator in a fiduciary capacity.
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204324 C. Contractual Liability or Other I nsurance Policies.
205-
206325 1. Contractual liability or other insurance policies insuring
207326 debt waivers shall state the obligation of the insurer to reimburse
208327 or pay to the creditor any sum s the creditor is legally obligated to
209328 waive under a debt waiver.
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211329 2. Coverage under a contr actual liability or other insurance
212330 policy insuring a debt waiver shall also cover any subsequent
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213358 assignee upon the assignment, sale, or transfer of the finance
214359 agreement.
215-
216360 3. Coverage under a contractua l liability or other insurance
217361 policy insuring a debt waiver shall remain in effect unless canceled
218362 or terminated in compliance with applicable insurance laws of this
219363 state.
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222-ENR. S. B. NO. 1743 Page 6
223364 4. The cancelation or termination of a contractu al liability or
224365 other insurance policy shall not reduce the insurer's responsibility
225366 for debt waivers issued by the creditor prior to the date of
226367 cancelation or termination and for which the premium has been
227368 received by the insurer.
228-
229369 D. Debt waivers shall disclose in writing and in clear,
230370 understandable language the following:
231-
232371 1. The name and add ress of the initial creditor and the
233372 borrower at the time of sa le and identity of any administrator if
234373 different from the creditor;
235-
236374 2. The purchase price , if any, and the terms of the debt waiver
237375 including without limitation, the requirements of protectio n,
238376 conditions, or exclusions associated with the debt waiver;
239-
240377 3. That the borrower may cancel the debt waive r within a free
241378 look period, as specified in the debt waiver, and will be entitled
242379 to a full refund of the purchase price paid by the borrower, if any,
243380 as long as no benefits have been provided ;
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245408 4. The procedures the borrower shall follow, if any, t o obtain
246409 debt waiver benefits under the terms and cond itions of the debt
247410 waiver including, if applicable, a telephone number or website and
248411 address where the borrower may apply for debt waiver benefits;
249-
250412 5. Whether or not the debt waiver may be canceled after the
251413 free look period and the conditions under whic h it may be canceled
252414 or terminated including the procedures for requesting any refund of
253415 amounts paid;
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255416 6. That in order to receive any refund due in the event of a
256417 borrower's cancelation of the debt waiver, the borrower, in
257418 accordance with the term of the debt waiver, shall provide a written
258419 request to cancel to the creditor, administ rator, or other such
259420 party. If the cancelation of a debt waiver is due to an early
260421 termination of the finance agreement and no benefit has been or will
261422 be provided, then the borrower, in accordance with the terms of th e
262423 debt waiver, shall provide a written request to c ancel to the
263424 creditor or administrator within ninety (90) days of t he occurrence
264425 of the event terminating the finance agreement;
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266-ENR. S. B. NO. 1743 Page 7
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268426 7. The methodology for calculating any refund of the unearned
269427 purchase price of the debt waiver, if any, shall be due in the event
270428 of cancelation of the debt waiver or early termination of a fi nance
271429 agreement; and
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273457 8. That neither the extension of credit, the terms of the
274458 credit, nor the terms of the related motor vehicle sale o r lease,
275459 may be conditioned upon the borrower 's purchase of a debt waiver.
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277460 E. Cancelation.
278-
279461 1. Debt waiver agreements may be cancelable or non-cancelable
280462 following the free look period. Debt waivers shal l provide the
281463 borrower, if a borrower cancels a deb t waiver within the free look
282464 period, a full refund of the amount the borrower paid, if any, as
283465 long as no benefits hav e been provided.
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285466 2. In the event of a borrowe r's cancelation of the debt waiver
286467 or upon the early termination of the finance agreement after the
287468 debt waiver has been in effect beyond the free look period, the
288469 borrower may be entitled to a refund of the amount the borrower paid
289470 of the unearned portion of the purchase price, if any, minus a
290471 cancelation fee not to exceed Seventy-five Dollars ($75.00), if no
291472 benefit has been or will be provided. I n order to receive any
292473 refund due in the event of a borrower 's cancellation of the debt
293474 waiver, the borrower shall provide a written request to cancel , in
294475 accordance with the terms of the debt waiver, to the creditor or
295476 administrator. If the cancelation i s due to the early termination
296477 of the finance agreement, then the borrower, in accordance with the
297478 terms of the debt waiver, shall provide a written request to ca ncel
298479 to the creditor or administrator within ninety (90) days of the
299480 occurrence of the event terminating the finance agreement.
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301508 3. If the cancelation of a debt waiver occurs as a result of a
302509 default under the finance agreement or the repo ssession of the motor
303510 vehicle associated with the finance agreement, or any other
304511 termination of the finance agreement, any refund due may be paid
305512 directly to the creditor or administrator, unless the borrower can
306513 show that the finance agreement has been paid in full.
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308514 F. Exempt Transactions.
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310-ENR. S. B. NO. 1743 Page 8
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312515 1. Debt waivers offered by state or federal banks or credit
313516 unions in compliance with the applicable state or federal law are
314517 exempt from this act.
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316518 2. Subsection D of this section and Section 5 of this act shall
317519 not apply to debt waivers offered in connection wi th commercial
318520 transactions.
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320521 SECTION 4. NEW LAW A new section of law to be codified
321522 in the Oklahoma Statu tes as Section 140.5 of Title 15, unless there
322523 is created a duplication in numbering, reads as foll ows:
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324524 A. As used in this section :
325-
326525 1. "Administrator" means the person who may be responsible for
327526 the administrative or operational function of vehicle value
328527 protection agreements including, but not limited to, the
329528 adjudication of claims or benefits requested by contract holders;
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331529 2. "Contract holder" means a person who is the purchase r or
332530 holder of a vehicle value protection agreement;
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333557
334558 3. "Provider" means a person that is obligated to provide a
335559 benefit under a vehicle value protection agreement. A provid er may
336560 perform as an administrator or retain the services of a third-party
337561 administrator; and
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339562 4. "Vehicle value protection agreement " means a contractual
340563 agreement that provides a benefit towards either the reduction of
341564 some or all of the contract holder 's current finance agreement
342565 deficiency balance, or towards the purchase o r lease of a
343566 replacement motor vehicle or motor vehicle services, upon the
344567 occurrence of an adverse event to the motor vehicle inc luding, but
345568 not limited to, loss, theft, damage, obsolescence, diminished value,
346569 or depreciation. These agreements do not include debt waivers.
347570 These agreements may include, but not be limited to, trade-in-credit
348571 agreements, diminished value agreements, depreciation benefit
349572 agreements, or other similarly named agreements.
350-
351573 B. Requirements for offering vehicle value protection
352574 agreements:
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354-ENR. S. B. NO. 1743 Page 9
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356575 1. A provider may utilize an administrator or other designee to
357576 be responsible for any and all of the adm inistration of vehicle
358577 value protection agreemen ts in compliance with this act;
359-
360578 2. Vehicle value protection agreements shall not be sold un less
361579 the contract holder has been or will be provided access to a copy of
362580 that vehicle value protection agreement;
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363607
364608 3. In order to assure the faithful performance o f the
365609 provider's obligations to its contract holders, each provider shall
366610 be responsible for complying with the requirements of one of the
367611 following:
368-
369612 a. insure all of its vehicle value protection agreements
370613 under an insurance policy issued by an insurer
371614 licensed, registered, or otherwise authorized to do
372615 business in this state either:
373-
374616 (1) at the time the policy is filed with the
375617 Insurance Commissioner, and con tinuously
376618 thereafter, (i) maintain surplus as to
377619 policyholders and paid-in capital no less than
378620 Fifteen Million Dollars ($15,000,000.00) and (i i)
379621 annually file copies of the insurer 's financial
380622 statements, its National Association of Insurance
381623 Commissioners (NAIC) Annual Statement, and the
382624 actuarial certification required by and filed in
383625 the insurer's state of domicile, or
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385626 (2) at the time the policy is filed with the
386627 Commissioner, and continuously thereafter, (i)
387628 maintain surplus as to policyholders and pai d-in
388629 capital of less than Fifteen Million Dollars
389630 ($15,000,000.00) but at least equal to Ten
390631 Million Dollars ($10,000,000.00), (ii)
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391659 demonstrate to the satisfaction of the
392660 Commissioner that the company maintains a ratio
393661 of net written premiums, wherever written, to
394662 surplus as to policyholders and paid-in capital
395663 of not greater than 3 to 1, and (iii) annually
396664 file copies of the insurer's audited financial
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398-ENR. S. B. NO. 1743 Page 10
399665 statements, its NAIC Annual Statement, and the
400666 actuarial certification required by and filed in
401667 the insurer's state of domicile,
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403668 b. (1) maintain a funded reserve account for its
404669 obligations under its contracts issu ed and
405670 outstanding in this state. The reserves shall
406671 not be less than forty p ercent (40%) of gross
407672 considerations received, less claims paid, on t he
408673 sale of the vehicle value protection agreement
409674 for all in-force contracts. The rese rve account
410675 shall be subject to examination and review by the
411676 Commissioner,
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413677 (2) place in trust with the Commissioner a financial
414678 security deposit, having a value not less than
415679 five percent (5%) of the gross consideration
416680 received, less claims paid, on the sale of the
417681 vehicle value protection agreements for all
418682 vehicle value protection agreements issued and in
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419710 force, but not less than Twenty-five Thousand
420711 Dollars ($25,000.00), consisting of the
421712 following:
422-
423713 (a) a surety bond issued by an authorized
424714 surety,
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426715 (b) securities of the ty pe eligible for deposit
427716 by authorized insurers in this state,
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429717 (c) cash,
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431718 (d) a letter of credit issued by a qualified
432719 financial institution, or
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434720 (e) another form of security prescribed by
435721 regulations issued by the Commissioner, or
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437722 c. (1) maintain, or together with its parent company
438723 maintain, a net worth or stockholders' equity of
439724 One Hundred Million Dollars ($100,000,000.00), or
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442-ENR. S. B. NO. 1743 Page 11
443725 (2) upon request, provide the Commissioner with a
444726 copy of the provider's or the provider's parent
445727 company's most recent Form 10-K or Form 20-F
446728 filed with the Securities and Exchange Commission
447729 (SEC) within the last calendar year , or if the
448730 company does not file with the SEC, a copy of the
449731 company's audited financial statements, which
450732 shows a net worth of the provider or its parent
451733 company of at least One Hundred Million Dollars
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452761 ($100,000,000.00). If the provider's parent
453762 company's Form 10-K, Form 20-F, or financial
454763 statements are filed to meet the provider's
455764 financial security requirement, t hen the parent
456765 company shall agree to guaran tee the obligations
457766 of the provider relating to the vehicle value
458767 protection agreements sold by t he provider in
459768 this state; and
460-
461769 4. Except for the requirements in paragraph 3 of subsection B
462770 of this section, no o ther financial security requirements shall be
463771 required for vehicle value protection agreement providers.
464-
465772 C. Vehicle value protection agreeme nts shall disclose in
466773 writing and in clear, understandable language the following:
467-
468774 1. The name and address of the provider, contract holder, and
469775 administrator, if any;
470-
471776 2. The terms of the vehicle value protection agreement
472777 including without limitation, the purchase price to be paid by the
473778 contract holder, the requirements for eligibility, conditions of
474779 coverage, or exclusions;
475-
476780 3. That the vehicle value protection agreement may be canceled
477781 by the contract holder within a free look period as specified in the
478782 vehicle value protection agreement, and in such an event, the
479783 contract holder shall be entitled to a full refund of the purchase
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480811 price paid by the contract holder, if any, as long as no benefits
481812 have been provided;
482-
483813 4. The procedure the contract holder shall follow, if any, to
484814 obtain a benefit under the terms and conditions of the vehicle value
485-
486-ENR. S. B. NO. 1743 Page 12
487815 protection agreement including, if applicable, a telephone number or
488816 website and address where the contract holder may apply for a
489817 benefit;
490-
491818 5. Whether or not the vehicle value protection agreement is
492819 cancelable after the free look period and the conditions under which
493820 it may be canceled including the procedures for req uesting any
494821 refund of the unearned purchase price paid by the contract holder;
495-
496822 6. In the event of cancelation, the methodology for calculating
497823 any refund of the unearned purchase price of the vehicle value
498824 protection agreement due;
499-
500825 7. That neither the extension of credit, the terms of the
501826 credit, nor the terms of the related motor vehicle sale or lease may
502827 be conditioned upon the purchase of the vehicle value protection
503828 agreement; and
504-
505829 8. Vehicle value protectio n agreements shall state the terms
506830 and restrictions, or conditions governing cancelation of the vehicle
507831 value protection agreement prior to the termination or expiration
508832 date of the vehicle va lue protection agreement by either the
509833 provider or the contract holder. The provider of the vehicle value
510834 protection agreement shall mail a written notice to the contract
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511862 holder at the last known address of the contract holder contained in
512863 the records of the provider at least five (5) days prior to
513864 cancelation by the provider. Prior notice shall not be required if
514865 the reason for cancelation is nonpayment of the provider fee, a
515866 material misrepresentation by the contract holder to the provider or
516867 administrator, or a substantial breach of duties by the contract
517868 holder relating to the covered product or its use. The n otice shall
518869 state the effective date of cancelation and the reason for the
519870 cancelation. If a vehicle value protection agreement is canceled by
520871 the provider for a reason other than nonpayment of the provider fee,
521872 the provider shall refund the contract hold er one hundred percent
522873 (100%) of the unearned pro rata provider fee paid by the contract
523874 holder, if any. If coverage under the vehicle value pr otection
524875 agreement continues after a claim, then any refund may deduct claims
525876 paid. A reasonable administrative fee may be charged by the
526877 provider not to exceed Seventy-five Dollars ($75.00).
527-
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529-ENR. S. B. NO. 1743 Page 13
530878 D. Subsection C of this section and Section 5 of this act shal l
531879 not apply to vehicle value protection agreements offered in
532880 connection with a commercial transaction.
533-
534881 SECTION 5. NEW LAW A new section of law to be codified
535882 in the Oklahoma Statutes a s Section 140.6 of Title 15, unless there
536883 is created a duplication in numbering, reads as follows:
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538911 The Insurance Commissioner shall promulgate rules necessary to
539912 enforce the provisions of this act. After proper notice and
540913 opportunity for hearing the Commissioner may:
541-
542914 1. Order the creditor, provider, administrator, or any other
543915 person not in compliance with this act to cease and desist from
544916 product related operations which are in violation of this act; and
545-
546917 2. Impose a penalty not to exceed Five Hundred Dollars
547918 ($500.00) per violation and no more than Ten Thousand Dollars
548919 ($10,000.00) for aggregated violations of a similar nature. For
549920 purposes of this section, "violations of a similar nature" means the
550921 violation consisted of the same or similar course of conduct,
551922 action, or practice, irrespecti ve of the number of times the action,
552923 conduct, or practice which is determined to be a violation of this
553924 act occurred.
554-
555925 SECTION 6. NEW LAW A new section of law to be codified
556926 in the Oklahoma Statutes as Section 140.7 of Title 15, unless there
557927 is created a duplication in numbering, reads as follows:
558-
559928 The Legislature finds that motor vehicle financi al protection
560929 products shall not be insurance. All motor vehicle financial
561930 protection products issued prior to and after the effective date of
562931 this act shall not be construed as insurance.
563-
564932 SECTION 7. This act shall become effective Novemb er 1, 2022.
565933
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567-ENR. S. B. NO. 1743 Page 14
568-Passed the Senate the 8th day of March, 2022.
569-
570-
571-
572- Presiding Officer of the Senate
573-
574-
575-Passed the House of Representatives the 13th day of April, 2022.
576-
577-
578-
579- Presiding Officer of the House
580- of Representatives
581-
582-OFFICE OF THE GOVERNOR
583-Received by the Office of the Governor this _______ _____________
584-day of _________________ __, 20_______, at _______ o'clock _______ M.
585-By: _______________________________ __
586-Approved by the Governor of the State of Oklahoma this _____ ____
587-day of ___________________, 20_______, at _____ __ o'clock _______ M.
588-
589- _________________________________
590- Governor of the State of Oklahoma
591-
592-
593-OFFICE OF THE SECRETARY OF STATE
594-Received by the Office of the Secretary of State this _______ ___
595-day of __________________, 20 _______, at _______ o'clock _____ __ M.
596-By: _______________________________ __
934+COMMITTEE REPORT BY: COMMITTEE ON BANKING, FINANCIAL SERVICES AND
935+PENSIONS, dated 04/04/2022 - DO PASS.