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CIVIL
CODE
1788. This title may be cited as the Rosenthal
Fair Debt Collection Practices Act.
1788.1. (a) The Legislature makes the following
findings:
(1) The banking and credit system and grantors of
credit to consumers are dependent upon the
collection of just and owing debts. Unfair or
deceptive collection practices undermine the
public confidence which is essential to the
continued functioning of the
banking and credit system and sound extensions of
credit to consumers.
(2) There is need to ensure that debt collectors
and debtors exercise their responsibilities to
one another with fairness, honesty and due regard
for the rights of the other.
(b) It is the purpose of this title to prohibit
debt collectors from engaging in unfair or
deceptive acts or practices in the collection of
consumer debts and to require debtors to act
fairly in entering into and honoring such debts,
as specified in this title.
1788.2. (a) Definitions and rules of construction
set forth in this section are applicable for the
purpose of this title.
(b) The term "debt collection" means
any act or practice in connection with the
collection of consumer debts.
(c) The term "debt collector" means any
person who, in the ordinary course of business,
regularly, on behalf of himself or herself or
others, engages in debt collection. The term
includes any person who composes and sells, or
offers to compose and sell, forms, letters, and
other collection media used or intended to be
used for debt collection, but does not include an
attorney or counselor at law.
(d) The term "debt" means money,
property or their equivalent which is due or
owing or alleged to be due or owing from a
natural person to another person.
(e) The term "consumer credit
transaction" means a transaction between a
natural person and another person in which
property, services or money is acquired on credit
by that natural person from such other person
primarily for personal, family, or household
purposes.
(f) The terms "consumer debt" and
"consumer credit" mean money, property
or their equivalent, due or owing or alleged to
be due or owing from a natural person by reason
of a consumer credit transaction.
(g) The term "person" means a natural
person, partnership, corporation, limited
liability company, trust, estate, cooperative,
association or other similar entity.
(h) The term "debtor" means a natural
person from whom a debt collector seeks to
collect a consumer debt which is due and owing or
alleged to be due and owing from such person.
(i) The term "creditor" means a person
who extends consumer credit to a debtor.
(j) The term "consumer credit report"
means any written, oral or other communication of
any information by a consumer reporting agency
bearing on a consumer's creditworthiness, credit
standing, credit capacity, character, general
reputation, personal characteristics or mode of
living which is used or expected to be used or
collected in whole or in part for the purpose of
serving as a factor in establishing the
consumer's eligibility for (1) credit or
insurance to be used primarily for person,
family, or household purposes, or (2) employment
purposes, or (3) other purposes authorized under
any applicable federal or state law or
regulation. The term does not
include (a) any report containing information
solely as to transactions or experiences between
the consumer and the person making the report;
(b) any authorization or approval of a specific
extension of credit directly or indirectly by the
issuer of a credit
card or similar device; or (c) any report in
which a person who has been requested by a third
party to make a specific extension of credit
directly or indirectly to a consumer conveys his
or her decision with respect to that request, if
the third party advises the
consumer of the name and address of the person to
whom the request was made and such person makes
the disclosures to the consumer required under
any applicable federal or state law or
regulation.
(k) The term "consumer reporting
agency" means any person which, for monetary
fees, dues, or on a cooperative nonprofit basis,
regularly engages, in whole or in part, in the
practice of assembling or evaluating consumer
credit information or other information on
consumers for the purpose of furnishing consumer
credit reports to
third parties, and which uses any means or
facility for the purpose of preparing or
furnishing consumer credit reports.
1788.3. Nothing contained in this title shall be
construed to prohibit a credit union chartered
under Division 5 (commencing with Section 14000)
of the Financial Code or under the Federal Credit
Union Act (Chapter 14 (commencing with Section
1751) of Title 12 of the United States Code) from
providing information to an employer when the
employer is ordinarily and necessarily entitled
to receive such information because he is an
employee, officer, committee member, or agent of
such credit union.
1788.10. No debt collector shall collect or
attempt to collect a consumer debt by means of
the following conduct:
(a) The use, or threat of use, of physical force
or violence or any criminal means to cause harm
to the person, or the reputation, or the property
of any person;
(b) The threat that the failure to pay a consumer
debt will result in an accusation that the debtor
has committed a crime where such accusation, if
made, would be false;
(c) The communication of, or threat to
communicate to any person the fact that a debtor
has engaged in conduct, other than the failure to
pay a consumer debt, which the debt collector
knows or has reason to believe will defame the
debtor;
(d) The threat to the debtor to sell or assign to
another person the obligation of the debtor to
pay a consumer debt, with an accompanying false
representation that the result of such sale or
assignment would be that the debtor would lose
any defense to the
consumer debt;
(e) The threat to any person that nonpayment of
the consumer debt may result in the arrest of the
debtor or the seizure, garnishment, attachment or
sale of any property or the garnishment or
attachment of wages of the debtor, unless such
action is in fact contemplated by the debt
collector and permitted by the law; or
(f) The threat to take any action against the
debtor which is prohibited by this title.
1788.11. No debt collector shall collect or
attempt to collect a consumer debt by means of
the following practices:
(a) Using obscene or profane language;
(b) Placing telephone calls without disclosure of
the caller's identity, provided that an employee
of a licensed collection agency may identify
himself by using his registered alias name as
long as he correctly identifies the agency he
represents;
(c) Causing expense to any person for long
distance telephone calls, telegram fees or
charges for other similar communications, by
misrepresenting to such person the purpose of
such telephone call, telegram or similar
communication;
(d) Causing a telephone to ring repeatedly or
continuously to annoy the person called; or
(e) Communicating, by telephone or in person,
with the debtor with such frequency as to be
unreasonable and to constitute an harassment to
the debtor under the circumstances.
1788.12. No debt collector shall collect or
attempt to collect a consumer debt by means of
the following practices:
(a) Communicating with the debtor's employer
regarding the debtor's consumer debt unless such
a communication is necessary to the collection of
the debt, or unless the debtor or his attorney
has consented in writing to such communication. A
communication is necessary to the collection of
the debt only if it is made for the
purposes of verifying the debtor's employment,
locating the debtor, or effecting garnishment,
after judgment, of the debtor's wages, or in the
case of a medical debt for the purpose of
discovering the existence of medical insurance.
Any such communication, other than a
communication in the case of a medical debt by a
health care provider or its agent for the purpose
of discovering the existence of medical
insurance, shall be in writing unless such
written communication receives no response within
15 days and shall be made only as many times as
is necessary to the collection of the debt.
Communications to a debtor's employer regarding a
debt shall not
contain language that would be improper if the
communication were made to the debtor. One
communication solely for the purpose of verifying
the debtor's employment may be oral without prior
written contact.
(b) Communicating information regarding a
consumer debt to any member of the debtor's
family, other than the debtor's spouse or the
parents or guardians of the debtor who is either
a minor or who resides in the same household with
such parent or guardian, prior to obtaining a
judgment against the debtor, except where the
purpose of the communication is to locate the
debtor, or where the debtor or his attorney has
consented in writing to such communication;
(c) Communicating to any person any list of
debtors which discloses the nature or existence
of a consumer debt, commonly known as
"deadbeat lists", or advertising any
consumer debt for sale, by naming the debtor; or
(d) Communicating with the debtor by means of a
written communication that displays or conveys
any information about the consumer debt or the
debtor other than the name, address and telephone
number of the debtor and the debt collector and
which is
intended both to be seen by any other person and
also to embarrass the debtor.
(e) Notwithstanding the foregoing provisions of
this section, the
disclosure, publication or communication by a
debt collector of information relating to a
consumer debt or the debtor to a consumer
reporting agency or to any other person
reasonably believed to have a legitimate business
need for such information shall not be deemed to
violate this title.
1788.13. No debt collector shall collect or
attempt to collect a consumer debt by means of
the following practices:
(a) Any communication with the debtor other than
in the name either of the debt collector or the
person on whose behalf the debt collector is
acting;
(b) Any false representation that any person is
an attorney or counselor at law;
(c) Any communication with a debtor in the name
of an attorney or counselor at law or upon
stationery or like written instruments bearing
the name of the attorney or counselor at law,
unless such communication is by an attorney or
counselor at law or shall have been approved or
authorized by such attorney or counselor at law;
(d) The representation that any debt collector is
vouched for, bonded by, affiliated with, or is an
instrumentality, agent or official of any
federal, state or local government or any agency
of federal, state or local government, unless the
collector is actually
employed by the particular governmental agency in
question and is acting on behalf of such agency
in the debt collection matter;
(e) The false representation that the consumer
debt may be increased by the addition of
attorney's fees, investigation fees, service
fees, finance charges, or other charges if, in
fact, such fees or charges may not legally be
added to the existing obligation;
(f) The false representation that information
concerning a debtor's failure or alleged failure
to pay a consumer debt has been or is about to be
referred to a consumer reporting agency;
(g) The false representation that a debt
collector is a consumer reporting agency;
(h) The false representation that collection
letters, notices or other printed forms are being
sent by or on behalf of a claim, credit, audit or
legal department;
(i) The false representation of the true nature
of the business or services being rendered by the
debt collector;
(j) The false representation that a legal
proceeding has been, is about to be, or will be
instituted unless payment of a consumer debt is
made;
(k) The false representation that a consumer debt
has been, is about to be, or will be sold,
assigned, or referred to a debt collector for
collection; or
(l) Any communication by a licensed collection
agency to a debtor demanding money unless the
claim is actually assigned to the collection
agency.
1788.14. No debt collector shall collect or
attempt to collect a consumer debt by means of
the following practices:
(a) Obtaining an affirmation from a debtor who
has been adjudicated a bankrupt, of a consumer
debt which has been discharged in such
bankruptcy, without clearly and conspicuously
disclosing to the debtor, in writing, at the time
such affirmation is sought, the fact that the
debtor is not legally obligated to make such
affirmation;
(b) Collecting or attempting to collect from the
debtor the whole or any part of the debt
collector's fee or charge for services rendered,
or other expense incurred by the debt collector
in the collection of the consumer debt, except as
permitted by law; or
(c) Initiating communications, other than
statements of account, with the debtor with
regard to the consumer debt, when the debt
collector has been previously notified in writing
by the debtor's attorney that the debtor is
represented by such attorney with respect to the
consumer debt and such notice includes the
attorney's name and address and a request by such
attorney that all communications regarding the
consumer debt be addressed to such attorney,
unless the attorney fails to answer
correspondence, return telephone calls, or
discuss the obligation in question. This
subdivision shall not apply
where prior approval has been obtained from the
debtor's attorney, or where the communication is
a response in the ordinary course of business to
a debtor's inquiry.
1788.15. (a) No debt collector shall collect or
attempt to collect a consumer debt by means of
judicial proceedings when the debt collector
knows that service of process, where essential to
jurisdiction over the debtor or his property, has
not been legally
effected.
(b) No debt collector shall collect or attempt to
collect a consumer debt, other than one reduced
to judgment, by means of judicial proceedings in
a county other than the county in which the
debtor has incurred the consumer debt or the
county in which the
debtor resides at the time such proceedings are
instituted, or resided at the time the debt was
incurred.
1788.16. It is unlawful, with respect to
attempted collection of a consumer debt, for a
debt collector, creditor, or an attorney, to send
a communication which simulates legal or judicial
process or which gives the appearance of being
authorized, issued, or approved by a governmental
agency or attorney when it is not. Any violation
of the provisions of this section is a
misdemeanor punishable by imprisonment in the
county jail not exceeding six months, or by a
fine not exceeding two thousand five hundred
dollars ($2,500) or by both.
1788.17. Notwithstanding any other provision of
this title, every debt collector collecting or
attempting to collect a consumer debt shall
comply with the provisions of Sections 1692b to
1692j, inclusive, of, and shall be subject to the
remedies in Section 1692k of, Title 15 of the
United States Code. However, subsection (11) of
Section 1692e and Section 1692g shall not apply
to any person specified in paragraphs (A) and (B)
of subsection (6) of Section 1692a of Title 15 of
the United States Code or that person's
principal. The references to federal codes in
this section refer to
those codes as they read January 1, 2001.
1788.18. (a) Upon receipt from a debtor of all of
the following, a debt collector shall cease
collection activities until completion of the
review provided in subdivision (d):
(1) A copy of a police report filed by the debtor
alleging that the debtor is the victim of an
identity theft crime, including, but not limited
to, a violation of Section 530.5 of the Penal
Code, for the specific debt being collected by
the debt collector.
(2) The debtor's written statement that the
debtor claims to be the victim of identity theft
with respect to the specific debt being collected
by the debt collector. (b) The written statement
described in paragraph (2) of subdivision (a)
shall consist of any of the following:
(1) A Federal Trade Commission's Affidavit of
Identity Theft.
(2) A written statement containing the content of
the Identity Theft Victim's Fraudulent Account
Information Request offered to the public by the
California Office of Privacy Protection.
(3) A written statement that certifies that the
representations are true, correct, and contain no
material omissions of fact to the best knowledge
and belief of the person submitting the
certification.
A person submitting the certification who
declares as true any material matter pursuant to
this subdivision that he or she knows to be false
is guilty of a misdemeanor. The statement shall
contain or be accompanied by, the following, to
the extent that an item listed below is relevant
to the debtor's allegation of identity theft with
respect to the debt in question:
(A) A statement that the debtor is a victim of
identity theft.
(B) A copy of the debtor's driver's license or
identification card, as issued by the state.
(C) Any other identification document that
supports the statement of identity theft.
(D) Specific facts supporting the claim of
identity theft, if available.
(E) Any explanation showing that the debtor did
not incur the debt.
(F) Any available correspondence disputing the
debt after transaction information has been
provided to the debtor.
(G) Documentation of the residence of the debtor
at the time of the alleged debt. This may include
copies of bills and statements, such as utility
bills, tax statements, or other statements from
businesses sent to the debtor, showing that the
debtor lived at another residence at the time the
debt was incurred.
(H) A telephone number for contacting the debtor
concerning any additional information or
questions, or direction that further
communications to the debtor be in writing only,
with the mailing address specified in the
statement.
(I) To the extent the debtor has information
concerning who may have incurred the debt, the
identification of any person whom the debtor
believes is responsible.
(J) An express statement that the debtor did not
authorize the use of the debtor's name or
personal information for incurring the debt.
(K) The certification required pursuant to this
paragraph shall be sufficient if it is in
substantially the following form:
"I certify the representations made are
true, correct, and contain no material omissions
of fact.
___________________________(Date and Place)
___________________________"
(Signature)
(c) If a debtor notifies a debt collector orally
that he or she is a victim of identity theft, the
debt collector shall notify the consumer, orally
or in writing, that the debtor's claim must be in
writing. If a debtor notifies a debt collector in
writing that he or she is a victim of identity
theft, but omits information required pursuant to
subdivision (a) or, if applicable, the
certification required pursuant to paragraph (3)
of subdivision (b), if the debt collector does
not cease collection activities, the debt
collector shall provide written notice to the
debtor of the additional information that is
required, or the certification required pursuant
to paragraph (3) of subdivision (b), as
applicable or send the debtor
a copy of the Federal Trade Commission's
Affidavit of Identity Theft form.
(d) Upon receipt of the complete statement and
information described in subdivision (a), the
debt collector shall review and consider all of
the information provided by the debtor and other
information available to the debt collector in
its file or from the
creditor. The debt collector may recommence debt
collection activities only upon making a good
faith determination that the information does not
establish that the debtor is not responsible for
the specific debt in question. The debt
collector's determination shall be made in a
manner consistent with the provisions of 15
U.S.C.
Sec. 1692f(1), as incorporated by Section
1788.17. The debt collector shall notify the
consumer in writing of that determination and the
basis for that determination before proceeding
with any further collection activities. The debt
collector's determination
shall be based on all of the information provided
by the debtor and other information available to
the debt collector in its file or from the
creditor.
(e) No inference or presumption that the debt is
valid or invalid, or that the debtor is liable or
not liable for the debt, shall arise if the debt
collector decides after the review described in
subdivision (d) to cease or recommence the debt
collection activities. The exercise or
nonexercise of rights under this section is not a
waiver of any other right or defense of the
debtor or debt collector.
(f) The statement and supporting documents that
comply with subdivision (a) may also satisfy, to
the extent those documents meet the requirements
of, the notice requirement of paragraph (5) of
subdivision (c) of Section 1798.93.
(g) A debt collector who ceases collection
activities under this section and does not
recommence those collection activities, shall do
all of the following:
(1) If the debt collector has furnished adverse
information to a consumer credit reporting
agency, notify the agency to delete that
information.
(2) Notify the creditor that debt collection
activities have been terminated based upon the
debtor's claim of identity theft.
(h) A debt collector who has possession of
documents that the debtor is entitled to request
from a creditor pursuant to Section 530.8 of the
Penal Code is authorized to provide those
documents to the debtor.
1788.20. In connection with any request or
application for consumer credit, no person shall:
(a) Request or apply for such credit at a time
when such person knows there is no reasonable
probability of such person's being able, or such
person then lacks the intention, to pay the
obligation created thereby in accordance with the
terms and conditions of the credit extension; or
(b) Knowingly submit false or inaccurate
information or willfully conceal adverse
information bearing upon such person's credit
worthiness, credit standing, or credit capacity.
1788.21. (a) In connection with any consumer
credit existing or requested to be extended to a
person, such person shall within a reasonable
time notify the creditor or prospective creditor
of any change in such person's name, address, or
employment.
(b) Each responsibility set forth in subdivision
(a) shall apply only if and after the creditor
clearly and conspicuously in writing discloses
such responsibility to such person.
1788.22. (a) In connection with any consumer
credit extended to a person under an account:
(1) No such person shall attempt to consummate
any consumer credit transaction thereunder
knowing that credit privileges under the account
have been terminated or suspended.
(2) Each such person shall notify the creditor by
telephone, telegraph, letter, or any other
reasonable means that an unauthorized use of the
account has occurred or may occur as the result
of loss or theft of a credit card, or other
instrument identifying the
account, within a reasonable time after such
person's discovery thereof, and shall reasonably
assist the creditor in determining the facts and
circumstances relating to any unauthorized use of
the account.
(b) Each responsibility set forth in subdivision
(a) shall apply only if and after the creditor
clearly and conspicuously in writing discloses
such responsibility to such person.
1788.30. (a) Any debt collector who violates this
title with respect to any debtor shall be liable
to that debtor only in an individual action, and
his liability therein to that debtor shall be in
an amount equal to the sum of any actual damages
sustained by the
debtor as a result of the violation.
(b) Any debt collector who willfully and
knowingly violates this title with respect to any
debtor shall, in addition to actual damages
sustained by the debtor as a result of the
violation, also be liable to the debtor only in
an individual action, and his additional
liability therein to that debtor shall be for a
penalty in such amount as the court may allow,
which shall not be less than one hundred dollars
($100) nor greater than one thousand dollars
($1,000).
(c) In the case of any action to enforce any
liability under this title, the prevailing party
shall be entitled to costs of the action.
Reasonable attorney's fees, which shall be based
on time necessarily expended to enforce the
liability, shall be awarded to a prevailing
debtor; reasonable attorney's fees may be awarded
to a prevailing creditor upon a finding by the
court that the debtor's prosecution or defense of
the action was not in good faith.
(d) A debt collector shall have no civil
liability under this title if, within 15 days
either after discovering a violation which is
able to be cured, or after the receipt of a
written notice of such violation, the debt
collector notifies the debtor of the violation,
and makes whatever adjustments or corrections are
necessary to cure the violation with respect to
the debtor.
(e) A debt collector shall have no civil
liability to which such debt collector might
otherwise be subject for a violation of this
title, if the debt collector shows by a
preponderance of evidence that the violation was
not intentional and resulted notwithstanding the
maintenance of procedures reasonably adapted to
avoid any such
violation.
(f) Any action under this section may be brought
in any appropriate court of competent
jurisdiction in an individual capacity only,
within one year from the date of the occurrence
of the violation.
(g) Any intentional violation of the provisions
of this title by the debtor may be raised as a
defense by the debt collector, if such violation
is pertinent or relevant to any claim or action
brought against the debt collector by or on
behalf of the debtor.
1788.31. If any provision of this title, or the
application thereof to any person or
circumstances, is held invalid, the remaining
provisions of this title, or the application of
such provisions to other persons or
circumstances, shall not be affected thereby.
1788.32. The remedies provided herein are
intended to be cumulative and are in addition to
any other procedures, rights, or remedies under
any other provision of law. The enactment of this
title shall not supersede existing administrative
regulations of the Director of Consumer Affairs
except to the extent that those regulations are
inconsistent with the provisions of this title.
1788.33. Any waiver of the provisions of this
title is contrary to public policy, and is void
and unenforceable.
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