Bill Text: CA AB1723 | 2015-2016 | Regular Session | Chaptered
Bill Title: Debt collection.
Sponsorship: Bipartisan Bill
Status: (Passed) 2016-09-16 - Chaptered by Secretary of State - Chapter 376, Statutes of 2016. [AB1723 Detail]
Download: California-2015-AB1723-Chaptered.html
BILL NUMBER: AB 1723 CHAPTERED
BILL TEXT
CHAPTER 376
FILED WITH SECRETARY OF STATE SEPTEMBER 16, 2016
APPROVED BY GOVERNOR SEPTEMBER 16, 2016
PASSED THE SENATE AUGUST 15, 2016
PASSED THE ASSEMBLY AUGUST 22, 2016
AMENDED IN SENATE AUGUST 8, 2016
AMENDED IN SENATE AUGUST 2, 2016
AMENDED IN SENATE MAY 31, 2016
AMENDED IN ASSEMBLY MARCH 28, 2016
INTRODUCED BY Assembly Member Dodd
(Coauthors: Assembly Members Brough, Ch�vez, Lackey, Maienschein,
Mullin, and Waldron)
(Coauthor: Senator Hertzberg)
JANUARY 28, 2016
An act to amend Sections 1785.16.2 and 1788.18 of the Civil Code,
relating to debt collection.
LEGISLATIVE COUNSEL'S DIGEST
AB 1723, Dodd. Debt collection.
Existing law requires a debt collector that receives a copy of a
police report filed by the debtor alleging that the debtor is the
victim of an identity theft crime and a written statement in which
the debtor claims to be the victim of identity theft to cease
collection activities until completion of a review. Existing law
requires the debt collector to review and consider all of the
information provided by the debtor and other available information
and authorizes the debt collector to 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.
This bill, the Identity Theft Resolution Act, would require the
debt collector, upon receipt of the police report and written
statement described above, if it furnished adverse information about
the debtor to a consumer credit reporting agency, to notify the
consumer credit reporting agency that the account is disputed, and
initiate a review, as specified, within 10 business days. The bill
would require the debt collector to send notice of its determination
to the debtor no later than 10 business days after concluding the
review. The bill would require a debt collector that does not
recommence collection activities under these provisions to notify the
creditor, no later than 10 business days after making its
determination, and if it furnished adverse information to a consumer
credit reporting agency, to notify the agency to delete that
information no later than 10 business days after making its
determination. The bill would also prohibit a creditor from selling a
consumer debt to a debt collector if the creditor has received
notice that the debt collector has terminated debt collection
activities, as described above.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. This act shall be known, and may be cited, as the
Identity Theft Resolution Act.
SEC. 2. Section 1785.16.2 of the Civil Code is amended to read:
1785.16.2. (a) No creditor may sell a consumer debt to a debt
collector, as defined in 15 U.S.C. Sec. 1692a, if the consumer is a
victim of identity theft, as defined in Section 1798.2, and with
respect to that debt, the creditor has received notice pursuant to
subdivision (k) of Section 1785.16 or paragraph (2) of subdivision
(g) of Section 1788.18.
(b) Subdivision (a) does not apply to a creditor's sale of a debt
to a subsidiary or affiliate of the creditor, if, with respect to
that debt, the subsidiary or affiliate does not take any action to
collect the debt.
(c) For the purposes of this section, the requirement in 15 U.S.C.
Sec. 1692a, that a person must use an instrumentality of interstate
commerce or the mails in the collection of any debt to be considered
a debt collector, does not apply.
SEC. 3. Section 1788.18 of the Civil Code is amended to read:
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 that contains 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
debtor, 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) Within 10 business days of receiving the complete statement
and information described in subdivision (a), the debt collector
shall, if it furnished adverse information about the debtor to a
consumer credit reporting agency, notify the consumer credit
reporting agency that the account is disputed, and initiate a review
considering 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 shall send notice of its determination
to the debtor no later than 10 business days after concluding the
review. 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 subsection (1) of Section
1692 of Title 15 of the United States Code, as incorporated by
Section 1788.17 of this code. The debt collector shall notify the
debtor 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 no later than 10 business days after making its
determination.
(2) Notify the creditor no later than 10 business days after
making its determination 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.
(i) Notwithstanding subdivision (h) of Section 1788.2, for the
purposes of this section, "debtor" means a natural person, firm,
association, organization, partnership, business trust, company,
corporation, or limited liability company from which a debt collector
seeks to collect a debt that is due and owing or alleged to be due
and owing from the person or entity. The remedies provided by this
title shall apply equally to violations of this section.
