TITLE 29

State Government

State Offices Created by Constitution

CHAPTER 25. STATE DEPARTMENT OF JUSTICE

Subchapter II. Consumer Protection


(a) There is established within the Department of Justice a Division of Consumer Protection.

(b) The Division of Consumer Protection shall protect the public against consumer fraud and deceptive trade practices through enforcement of statutes, consumer education, consumer advocacy, and coordinated governmental action.

(c) The Attorney General may appoint a Deputy Attorney General to be designated as the Director of Consumer Protection, who will be charged with the furtherance of the programs and functions thereof.

(d) The term "Director" as used in this chapter refers to the Director of the Division of Consumer Protection and includes any designee.

68 Del. Laws, c. 149, § 10; 68 Del. Laws, c. 314, § 1; 69 Del. Laws, c. 203, §§ 1-5; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 138, § 6; 74 Del. Laws, c. 151, § 2; 76 Del. Laws, c. 419, § 2; 77 Del. Laws, c. 282, § 1.;

(a) The Office of Foreclosure Prevention and Financial Education is hereby established within the Division of Consumer Protection under the direction and control of the Director.

(b) The Office of Foreclosure Prevention and Financial Education is established for the following purposes:

(1) To develop and implement programs to educate the public about foreclosure prevention and financial literacy;

(2) To identify mortgage foreclosure fraud or other deceptive practices;

(3) To provide for opportunities for borrowers to meet with lenders through outreach events or mediation programs;

(4) To establish a toll-free telephone number to receive complaints from homeowners at risk of default for appropriate referral or intervention;

(5) To serve as a liaison between borrowers and lenders when complex issues may be impeding loss mitigation efforts; and

(6) To promote coordination among government and private programs and lenders including, but not limited to, HUD approved housing counseling agencies, legal aid providers, and other nonprofit consumer advocates.

(c) The structure of the Office of Foreclosure Prevention and Financial Education will be determined by the Attorney General and include a Foreclosure Outreach Coordinator and 2 administrative specialists.

78 Del. Laws, c. 198, § 1; 79 Del. Laws, c. 27, § 12.;

78 Del. Laws, c. 198, § 1; repealed by 78 Del. Laws, c. 198, § 2, made eff. Sept. 21, 2017, by 79 Del. Laws, c. 27, § 12, eff. Sept. 21, 2013.;

Council on Manufactured Housing.

(1) The Council on Manufactured Housing shall advise the Division on matters relating to mobile home owners and tenants, manufactured housing and mobile home parks. The Council may consider matters referred to it by the Division, and may, on its own motion, consider any issue or matter within its field of expertise. The Council shall report directly and exclusively to the Division. All funding for the Council shall be determined by the Division.

(2) The Council on Manufactured Housing shall be composed of 14 members, 12 of whom shall be appointed by the Governor: Six members representing the manufactured housing industry; and 6 members representing persons who live in mobile home parks, both those who own the mobile homes in which they reside and those who do not own the mobile homes in which they reside (at least 1 from each county). In the event a member ceases to be an owner or employee of a mobile home park, or a resident of a mobile home park, such person's membership shall cease upon the occurrence of such event. In addition to the 12 voting members appointed by the Governor, a representative of the Division appointed by the Director, and a representative of the Department of Justice, appointed by the Attorney General, shall serve as nonvoting ex officio members.

(3) Each member shall serve for a term for 2 years, and may successively serve for 1 additional term; provided, however, that where a member was initially appointed to fill a vacancy, such member shall successively serve for only 1 additional full term. Any person appointed to fill a vacancy on the Council shall hold office for the remainder of the unexpired term of the former member.

(4) Members of the Council shall serve without compensation except that they may be reimbursed for reasonable and necessary expenses incident to their duties as members of the Council. A Chairperson of the Council shall be chosen by members of the Council from among its members, shall serve in that capacity for a term of 1 year, and shall be eligible for reelection.

29 Del. C. 1953, § 8614; 57 Del. Laws, c. 583, § 1; 64 Del. Laws, c. 2, § 4; 65 Del. Laws, c. 445, §§ 1-4; 68 Del. Laws, c. 149, § 9; 69 Del. Laws, c. 291, § 98(c); 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 138, § 25; 77 Del. Laws, c. 106, § 5.;

(a) Among other powers, the Director shall have the authority to:

(1) Investigate matters that may reveal violations of Chapter 25 of Title 6 or other unlawful conduct;

(2) Issue cease and desist orders, either summarily or after a hearing;

(3) Seek administrative remedies for violations of the statutes the Division of Consumer Protection is charged to enforce;

(4) Initiate and prosecute civil or criminal actions related to the purposes of this chapter in any court of competent jurisdiction;

(5) Seek restitution, rescission, reformation of contract, recoupment, disgorgement of profits or any moneys improperly obtained, or otherwise prevent unjust enrichment against violators of this chapter and on behalf of consumers;

(6) Promulgate rules and regulations;

(7) Under the direction of the Attorney General, maintain and supervise the deposits and expenditures into and out of the Consumer Protection Fund;

(8) Hold fact-finding, rulemaking or adjudicative hearings and issue opinions, orders or reports based thereon; and

(9) Take any other lawful action to enforce the consumer protection statutes and to carry out their purposes.

(b) The scope of the authority of the Director to initiate administrative proceedings or take civil enforcement action does not extend to matters within the jurisdiction of the Public Service Commission or of the Insurance Commissioner of this State.

77 Del. Laws, c. 282, § 2.;

(a) The Director shall have the authority to promulgate rules and regulations as deemed necessary or appropriate to implement or clarify the statutes that the Division of Consumer Protection is charged to enforce or otherwise to carry out the purposes of those statutes.

(b) The rules and regulations of the Division of Consumer Protection shall be entitled to substantial deference in connection with any judicial review or case determination.

77 Del. Laws, c. 282, § 2.;

(a) The Attorney General and the Director shall have standing to seek, on behalf of the State, any remedy in this chapter whenever it appears that a person has violated or is about to violate any provision of Chapter 25 of Title 6, any provision of Chapter 35 of Title 6, Chapters 51 through 67 of Title 25, Chapter 70 of Title 25, §§ 841, 914, 915, and 915A of Title 11, or any other law or regulation that the Division of Consumer Protection is authorized to enforce. The Attorney General or the Director may initiate an investigation, administrative proceeding, or court proceeding to enjoin or sanction the unlawful conduct.

(b) If, in any court proceeding brought under subsection (a) of this section above, any person is found to have committed a wilful violation, the court shall order the violator to pay to the State a civil penalty of not more than $10,000 for each violation.

(c) Where a wilful violation is found, any court entertaining the action may additionally order the violator to cease and desist the unlawful conduct prospectively, return any moneys obtained unlawfully, and when appropriate freeze designated assets of the violator, order restitution, rescission, recoupment, or to seek other relief appropriate to prevent violators from being unjustly enriched.

(d) In any action brought by the Director under the provisions of this chapter in which any person is found to have violated any provision of Chapter 25 of Title 6, any provision of Chapter 35 of Title 6, Chapters 51 through 67 of Title 25, Chapter 70 of Title 25, §§ 841, 914, 915, and 915A of Title 11, or any other law or regulation that the Division of Consumer Protection is authorized to enforce, the Court may award attorneys' fees and investigative costs to the State.

77 Del. Laws, c. 282, § 2.;

(a) The Director of Consumer Protection may initiate administrative charges against any person who appears to have violated or about to violate any provision of Chapter 25 of Title 6, any provision of Chapter 35 of Title 6, Chapters 51 through 67 of Title 25, Chapter 70 of Title 25, or any other law or regulation that the Division of Consumer Protection is authorized to enforce. Such charges shall provide notice as to the nature of the violation and state the remedies that are sought.

(b) The Attorney General shall appoint a Deputy Attorney General to act as the administrative hearing officer to adjudicate charges brought by the Director of Consumer Protection against any person. Such hearing officer shall be a Deputy Attorney General who is not assigned to the Fraud and Consumer Protection Division.

(c) Upon finding a violation, the hearing officer may order any of the administrative remedies authorized in § 2524 of this title below. Upon finding a violation or a threat of a violation, the hearing officer may issue or affirm the issuance of a cease and desist order authorized by § 2524(a) of this title below.

(d) Any party, including the Director, who is aggrieved by the hearing officer's final administrative order may appeal the order to Superior Court within 30 days after the date the final order is issued. The administrative record shall be filed with the Court in accordance with Superior Court Civil Rule 72. The final administrative order shall be affirmed by the Court if the findings in the order are supported by substantial evidence.

(e) Any moneys that are received by the State after an administrative hearing and order, other than for consumer victims, shall be credited to the General Fund. Any moneys received pursuant to a written agreement in settlement of administrative charges, at any stage of the proceeding, shall be credited to the Consumer Protection Fund.

77 Del. Laws, c. 282, § 2.;

(a) After notice and an administrative hearing, any violation or apparent threat of violation of any provision of Chapter 25 of Title 6, or of any law or regulation the Division of Consumer Protection is charged to enforce, may be sanctioned by the issuance of a cease and desist order.

(b) After notice and an administrative hearing, any wilful violation of § 2513 or § 2532 of Title 6, or of a lawful cease and desist order of the Director or the hearing officer, may be sanctioned by an administrative penalty up to $5000 per violation, a cease and desist order, and an order of restitution, rescission, recoupment, or other relief appropriate to prevent violators from being unjustly enriched.

(c) After the expiration of the 30-day appeal period in which no appeal has been filed, if the violator fails to pay all penalties and restitution or other amounts administratively determined, the Director may file a complaint in any court of competent jurisdiction and obtain a judgment for the amounts that have not been paid. The amounts shall be treated by the court as an unpaid debt, and the merits of the administrative findings may not be contested.

77 Del. Laws, c. 282, § 2.;

(a) By agreement. — At any time after it appears to the Director that a person has engaged in, is engaging in, or is about to engage in any practice declared to be unlawful by Chapter 25 of Title 6, Chapter 35 of Title 6, Chapters 51 through 67 of Title 25, Chapter 70 of Title 25, or any other laws and regulations which the Division of Consumer Protection is authorized to enforce, the Director may issue a cease and desist order pursuant to an agreement with such person. Each such agreement may provide for:

(1) The immediate discontinuance of each practice set forth in the agreement;

(2) Any such relief, remedies, penalties, fines or recoveries authorized by this chapter; and

(3) Any other action deemed by the Director to be necessary to remedy such practice or practices.

(b) By administrative order. — Upon the finding of a violation of any provision of Chapter 25 of Title 6, or of any law or regulation the Division of Consumer Protection is charged to enforce, after notice and a hearing, the designated hearing officer may issue a cease and desist order against the violator. Such cease and desist order may provide for any relief as indicated in subsection (a) of this section above.

(c) By summary administrative order.

(1) Where the Director in the Director's discretion perceives an immediate threat to the public interest as a result of a violation of any provision of Chapter 25 of Title 6, or of any law or regulation the Division of Consumer Protection is charged to enforce, the Director may issue a summary cease and desist order ordering an immediate discontinuance of the unlawful practice identified in the order. A complaint detailing the specific allegations against the alleged violator shall accompany any summary cease and desist order served upon the alleged violator. Before issuing the summary order, the Director or the Director's designee shall attempt to obtain voluntary compliance from the alleged violator by letter or telephone call.

(2) The complaint and summary cease and desist order shall be served upon the alleged violator by first class and certified mail to the alleged violator's last known address. Service shall be deemed effective upon mailing. Within 10 days after the mailing of the complaint and order, the alleged violator may request, in writing, a hearing on the charges. An order that was not the subject of a hearing may not be appealed to the Superior Court.

(3) The Division of Consumer Protection shall provide a hearing on the charges in the complaint within 10 days after the issuance of the complaint and the cease and desist order. A written opinion and order, containing findings of fact and conclusions of law, shall issue within 10 days after the close of the hearing.

(4) If the alleged violator makes a written request for a hearing but none is provided within 10 days after the issuance of the order, the order shall expire at the end of the tenth day after it was issued unless the alleged violator waives that alleged violator's right to a prompt hearing. If the alleged violator makes a written request for a hearing and one is provided within 10 days, but no decision is issued within 10 days after the close of the hearing, the order shall expire at the end of the tenth day after the close of the hearing. An order that has expired in accordance with the restrictions of this subparagraph may not be reissued as a summary order.

(5) The order issued after the hearing may provide for any administrative remedy contained in § 2524 of this title. Any person aggrieved by the order issued after the hearing shall have 30 days to appeal the order to the Superior Court, as provided in § 2523(d) of this title.

(6) Any person who wilfully violates a cease and desist order may be sanctioned as provided in § 2524(b) or § 2526 of this title.

77 Del. Laws, c. 282, § 2.;

(a) The Attorney General or the Director may petition any court of competent jurisdiction to obtain recovery of a civil penalty as provided pursuant to this section. Such petition may be made whenever it appears to the Attorney General or the Director that a person subject to any order or injunction, issued pursuant to any provision of this chapter or any other law or regulation which the Division of Consumer Protection is charged to enforce, has wilfully violated such order or injunction, or breached a material term of an agreement forming the basis for a cease and desist order.

(b) A person who wilfully violates any such order or any such agreement shall forfeit and pay to the State an enhanced civil penalty of not more than $25,000 per violation.

(c) Any court in which the petition is brought may order the offender, if a violation is found, to cease and desist the unlawful practice. Any subsequent violation of the court's order may be sanctioned for contempt in addition to an enhanced civil penalty.

(d) Nothing in this section shall prevent the Attorney General or the Director from initiating any additional or alternative enforcement action under their lawful powers.

77 Del. Laws, c. 282, § 2.;